Wednesday, January 03, 2007 Malilong: Smith’s surreptitious transfer By Frank Malilong Jr. The Other Side
I AGREE with Justice Secretary Raul Gonzalez when he says that there are many Filipinos who think that US Marine Lance Cpl. Daniel Smith is not guilty. The essence of rape is the lack of consent or the inherent inability to give it as in the case of minors and the mentally retarded.
Smith’s accuser went out with him and his fellow marines after a night of carousal in a bar. It must be emphasized that that, by itself, does not constitute a license to violate her but, as most of my friends ask, when is the consent supposed to be given and how? The law says that rape is no longer a private offense but in a sense it still is because only the violator and the victim know what really happened. It is her word against his; in between stands the presumption of innocence.
But Gonzalez is mistaken when he says that there is nothing wrong with the surreptitious transfer of Smith to US custody.
The judge, who ruled that the US soldier should be confined in the Makati City jail while his case is on appeal, may have erred in his interpretation of the Visiting Forces Agreement. But our judicial system, imperfect as it is, provides the avenue through which relief can be obtained by the aggrieved party. In fact, Smith has chosen to take that path by filing a petition with the Court of Appeals to overturn the lower court’s ruling.
Gonzalez invokes the rule of law in justifying his client’s blatant disregard of the same. At least, he is not without a sense of irony. But that is about the kindest thing that you can say about him and this administration.
Many years ago, another, and a more eminent, Gonzales, warned against the very danger that an executive encroachment upon the territory of a co-equal branch of government, such as the one that the lesser one now justifies, poses to our constitutional system.
Quoting the French political philosopher, Baron de Montesquieu, the late constitutionalist and Senate president Neptali Gonzales said that “there would be an end of everything, were the same man or the same body, whether of the nobles or of the people, exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
So the judiciary is inefficient and has failed to grant timely and adequate relief to Smith? The doctrine of separation of powers, said an American jurist, was adopted not to promote efficiency “but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of governmental powers among the three departments, to save the people from autocracy.”
If the system of separation cannot, by reason of the executive’s refusal to honor and respect it, save the people from autocracy, what will stop the people from saving themselves?
Gonzalez claims that there is no groundswell of opposition to our act of surrender to the Americans. I hope that he has not spoken too soon.
