The Bigger Picture

Streetwise
By Carol Pagaduan-Araullo
Business World
Vol. XXII, No. 163, Friday, March 20, 2009 | MANILA, PHILIPPINES

The headline of a widely circulated broadsheet screams, “Nicole recants, clears Smith”. For the first time, the face of the young Filipina raped by a US marine, who used the pseudonym Nicole to hide her real identity, is published in the front page with the caption “The Unveiling, Unmaking of Nicole”. The temptation to sensationalize the purported recantation; to accept it hook, line and sinker; and to thereafter condemn Nicole is so strong, many have succumbed to it.

Nicole is disparaged and scorned for either taking almost everyone, including a court of law, for a ride crying “Rape!” Or for changing her story and allowing herself to appear as the stereotypical slut and gold digger, out to hook an American soldier that the defense lawyers had tried to do during trial but failed.

Not a few are disappointed and disheartened. While they do not condemn her for caving in to tremendous pressure from all sides to give up the fight for justice, they secretly wish that she had been made of sterner stuff. At least, that she had some remaining sense of decency not to have reportedly flown off to the United States with a new-found American boyfriend, in order to pursue the foolhardy dream of the colonial-minded.

As for Smith’s lawyer, Atty. Jose Justiniano, what is important is not Nicole’s credibility nor reputation, nor the public’s affront at this distasteful turn of events, only that she has retracted critical parts of her earlier testimony, sufficient to jeopardize the legal victory she had attained in a lower court. The wily lawyer that he is, Mr. Justiniano knows that the defense has successfully thrown a monkey wrench into the overall equation, no matter that the predominant legal opinion is that Nicole’s latest affidavit is no better than a scrap of paper.

We leave it to the legal experts to explain why Nicole’s “recantation” is worthless going by the rules of court and the law on evidence applicable in this case. What must be exposed are the highly suspicious circumstances surrounding the execution of the affidavit that render it totally lacking in credibility despite the claims of the victim’s mother that Nicole signed it of her own free will and that it is not an out-of-court settlement.

Atty. Evalyn Ursua , Nicole’s dismissed lawyer, says that the affidavit has all the hallmarks of something the defense lawyers cooked up. For one it contains the line of defense used unsuccessfully by Smith at his trial. Moreover, going by what she knew about her client in the three years that she counseled her, Ms. Ursua says that the affidavit does not “sound” like Nicole at all. And why did it have to be one of the lawyers in the law firm that is defending Smith, to notarize the document? Nicole herself is conveniently unavailable to either corroborate or refute the contents of the affidavit.

Those who easily condemn Nicole forget what she has been up against in pursuing the rape case against US Marine Smith. They forget that Smith was fully backed by his government, the superpower USA. This is the same superpower that has ignored worldwide protests and has single-mindedly, as well as violently, imposed its imperial designs on sovereign countries. It is the same US government that has threatened sovereign states with economic sanctions to dissuade them from ratifying the Rome Statute. In so doing, US troops and civilian personnel are exempted from prosecution by the International Criminal Court for violations of human rights and international law.

Even worse, Nicole has had to contend with the Philippine government, her government, which has consistently been more concerned with not offending, but rather sucking up to, the US government, than defending its own citizen's rights.

Sec. Gonzales and his prosecutors have used the “recantation” to further assail the credibility of their own client, the person they are duty-bound to stand by considering that the criminal justice system from the police to the fiscals to the trial judge all found that the evidence presented proved Nicole to have been raped by Smith.

Recall how Sec. Gonzales badgered and threatened the fiscal in Olongapo and later, in Makati, with administrative sanctions when they stood their ground in finding that all four US servicemen who were at the scene of the crime be indicted. Recall how disparaging Mr. Gonzales was about Nicole.

See how the public prosecutors showed little understanding much less sympathy for the plight of Nicole then and now. Remember how Nicole’s mother then made public her disgust that the government prosecutors were pushing for an out-of-court settlement rather than a conviction.

In this light, Nicole's "retraction" is hardly worth considering. Nicole is clearly the victim twice-over: she was raped by US marine Smith and now she has somehow been duped to be a party to her own undoing by Smith’s lawyers with the collusion of the US and Philippine governments.

So what is the game plan here? First, the rape conviction. To have it overturned by the Court of Appeals by means of Nicole’s much-ballyhooed “recantation”, if not legally, then extra legally, by shaping the public’s and the justices’ opinion that there is now, at the minimum, doubt as to the guilt of Smith.

The fish is caught by the mouth. Sec. Ermita says that if Smith is set free then the issue of custody is rendered moot. The Arroyo regime will no longer have to engage in negotiations for custody and be subjected to the indignity of being ignored by the US government. He predicts that calls for abrogation of the VFA will loose steam.

Again, this regime and US foreign policymakers who have not changed gears despite US President Obama’s I-am-the-darling- of-the-American- people and I-am-the-friend- of-the-world’s peoples pose, grossly underestimate how the lesson in the Nicole rape case is getting hammered, little by little, into the Filipino people’s consciousness. That is, with the VFA, Filipinos are treated as second class citizens in their own country, no different from the victims of American soldiers’ abuse when the US bases were still around.

US Ambassador Kenney will do a song-and-dance number, kiss babies, hand over reward money to Abu Sayyaf bounty hunters and lecture the Philippines ever so sweetly about how democratic elections should take place in the grand tradition of the US of A. But she, as the principal representative of an overweening, aggressive Superpower out to corner the best business deals and the world’s resources, will deny Nicole and other Filipino victims of crimes perpetrated by the US armed forces their due justice.

Outrage as to how the Arroyo government sells out the country’s sovereignty and the people’s rights to a former colonizer, acting now as neocolonizer, will accumulate over time, to an extent and to a degree, much more than the outrage at the abuse inflicted on this unfortunate individual Filipino who goes by the name Nicole.#