A ‘Solomonic’ CA decision?

The Court of Appeals decision of January 2nd on the custody of US Marines Lance Corporal Daniel Smith was greeted by many, including lawyers, with puzzlement, if not confusion. Through Associate Justice Apolinario Bruselas Jr., the Court declared as "moot" a petition by Smith questioning his temporary detention at the Makati city jail.

The Court did not disturb the status quo. Smith had already been transferred to the custody of the US Embassy on December 29th. This state of affairs has discombobulated many, although both sides in the controversy claim vindication or victory.

The Nicole partisans are elated that for 34 pages of the 38-page Bruselas opus, the appellate court seemed to be headed for an affirmation of the order of Judge Benjamin Pozon of the Makati trial court temporarily committing Smith to the city’s jail.

The government, for its part, lauded the decision as judicial imprimatur for Smith’s transfer to the US Embassy, and as recognition by the court of the government’s prerogative to decide sticky diplomatic issues.

I do not share the apparent confusion about what the Court of Appeals really meant to say. As a discussion of legal issues, the decision makes absolute sense to me.

This does not mean, of course, that the Court reached a result totally satisfactory to the lawyers of Nicole, the political opposition, the radical left, or those who don’t like the idea of a Visiting Forces Agreement ("VFA"). Clearly, the Court didn’t think it its duty to reach a politically palatable result.

Let’s start with the Court’s reason for declaring the Smith petition moot, after which we’ll backtrack and discuss what it said about Sections 6 and 10, Article V of the VFA. Both sections are the betes noires of those who want the VFA reviewed.

The Court refused to reinstate the status quo ante, i.e. Smith to return to the Makati city jail, there to await the outcome of his appeal of his conviction for rape, in view of a "supervening event," the agreement signed on December 22nd by Foreign Affairs Secretary Alberto Romulo and US Ambassador to the Philippines Kristie Kenney.

That agreement stipulated that Smith would be "detained at the first floor, Rowe (JUSMAG) Building, US Embassy Compound, in a room of approximately 10 x 12 square feet. He will be guarded round the clock by US military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to insure the United States is in compliance with the terms of the VFA."

Keep this wording in mind. We shall return to it later in this discussion.

In finding the Smith petition "moot," the CA said: "If it is the position of government that the language of the VFA is clear as seen by the petitioner and as also seen by the US Embassy, despite the strong and palpable indications that it is not so, then let it do as it sees fit and deal with such latest agreement as its sound judgment permits; for as Justice Holmes once wisely observed, ‘the other branches of the Government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’

"Courts may only say what the facts are and what the law may be in a given case or controversy and rule accordingly. That is what the respondent judge (Pozon) did and that is what we can also only do; nothing more and nothing less."

Now then, we make a few clarifications, some of them admittedly legalistic, but which have to be understood by those who seek to wade into the murky waters of what the VFA states, and what the Court of Appeals said in this case.

First, it has to be remembered that this is a decision of the Court of Appeals, which is subject to review on questions of law by the Supreme Court, if brought up in a proper proceeding. While the Supreme Court does not generally review findings of fact of the CA, the former may still reverse the CA on questions of law, including the interpretation of treaty provisions, if it thinks the CA’s conclusions are incorrect.

Second, the CA ruling here only involves what the law calls a petition for certiorari which charged Judge Pozon with grave abuse of discretion in issuing the confinement order and in refusing to recall it.

Under our Rules of Court, this means that Smith had to prove that Pozon acted so whimsically, capriciously or arbitrarily, i.e. so gravely abused his discretion, as to amount to a lack or excess of jurisdiction. This ruling had nothing to do with Smith’s separate appeal to have the judgment of conviction against him reviewed.

Third, the Smith petition is also distinct from a case filed by Nicole’s lawyers assailing the validity and constitutionality of the VFA itself. This case remains pending.

What the Court of Appeals was concerned with in this petition for certiorari, in other words, was only what it called "errors of jurisdiction," not "errors of judgment", which were "correctible by appeal". On that score, the Court of Appeals held that Judge Pozon did not act with fancy, whim, caprice or arbitrariness when he issued the commitment order for Smith to be confined at the Makati city jail.

To a large extent, the Court of Appeals decision of January 2nd illustrates the folly of reading judicial pronouncements as indicative of the wisdom, political correctness or patriotic content of any government action, such as the transfer of Smith to the US Embassy. That appraisal is a function of many factors, perhaps including certain facts and circumstances that the GMA government has not publicly disclosed.

There are numerous perceived wrongs in a nation’s life that cannot be corrected by resort to the courts. This may have been one of them.

In a democratic society, there are other tests which may be the ultimate gauge of whether the GMA government was right or wrong in what it did in the Smith case. One of these tests, of course, is the coming May elections.

But we’re getting ahead of ourselves. Next time, let’s consider how the CA regarded Judge Pozon’s reading of Sections 6 and 10 of the VFA. We will also discuss the VFA itself, as well as the controversy over whether it ought to be reviewed.

(To be continued)