GSIS-Meralco bribery case The GSIS-Meralco bribery case is a political controversy and pending legal case being heard

by the Supreme Court of the Philippines. This complex case began with a complaint filed by the GSIS with the Securities and Exchange Commission of the Philippines (SEC) questioning the unvalidated proxy votes used by the Lopez family in the last board election of the Manila Electric Company (Meralco). The SEC issued a cease and desist order (CDO) against Meralco, which was ignored by the latter. [1] A show cause order (SCO) was then issued by the SEC,[2] whereupon Meralco petitioned the Court of Appeals, questioning the jurisdiction of the SEC. The Court of Appeals issued a temporary restraining order (TRO) to the SEC[3] while the Special 9th Division composed of Associate Justices Vicente Q. Roxas, Jose L. Sabio Jr. and Myrna Dimaranan Vidal heard the case. Roxas was assigned as the ponente while Sabio was the acting chairman. Later, Sabio called a press conference and alleged that an emissary of Meralco tried to bribe him with P10 Million to have a case transferred to another appeals court justice. The criminal charges are obstruction of justice and malfeasance in office.[4] Sabio did not mention any names, but businessman Francis de Borja stepped forward and claimed that he was the alleged emissary, accusing Sabio of asking for a P50 Million bribe to side with Meralco, in response to De Borjas question What will it take for you to resist the governments offer? The alleged government offer was a Supreme Court position. In the latter course of the investigation, Sabio let slip that his brother, PCGG Chairman Camilo Sabio, called him up twice to urge him to side favorably with the government. The late admission of the allegedly unethical and criminal action called into doubt the innocence of Sabio in coming forward with his expose and the veracity of his entire story. These acts are alleged to be punishable under Article 208 and 243 of the Revised Penal Code respectively.
[5][6]

It also came out during the course of the Supreme Court investigation that Court of Appeals Justice Vicente Roxas, the ponente of the controversial Meralco decision, had himself committed improprieties. One such impropriety was the fact that Roxas preempted the legal opinion of Presiding Justice Conrado Vasquez that the Special 9th Division should have ruled on the case as per the Internal Rules of the Court of Appeals (IRCA), and not the 8th Division to which Roxas was transferred, and which eventually promulgated a ruling in favor of Meralco, with Justices Reyes and Apolinario Bruselas hastily signing the ponencia without going over or reading the memoranda submitted by concerned parties.[7] The Supreme Court, voting 12-1, ordered the dismissal of Roxas after he was found guilty of multiple violations of the canons of the Code of Judicial Conduct, grave misconduct, dishonesty, undue interest and conduct prejudicial to the best interest of service.[8] Sabio was suspended for two months after he was found guilty of simple misconduct and conduct unbecoming of a justice of the CA. Vasquez was severely reprimanded for his failure to act promptly and decisively in order to avert the incidence that damaged the image of the Court of Appeals, Reyes was found guilty of simple misconduct with mitigating circumstance, and Vidal, guilty of conduct unbecoming of a justice of the

appellate court for being too compliant" when she allowed herself to sign the decision without reading the parties memorandum.[9] History It started on May 11, 2008, when the Government Service Insurance System (Philippines) (GSIS) accused Meralco of unlawful refusal to grant corporate access to documents despite the GSIS holding 4 seats in the 11-member Meralco board, amid GSIS' denial of plans to wrest control from the Lopez family. The scandal originated from Meralco and GSIS row, after Sabio - in a letter-complaint against Justices Vicente Roxas and Bienvenido Reyes - complained of the circumstances that he was removed from the Meralco-GSIS case after a standard court reorganization, and an alleged bribe attempt by Manolo Lopez and Meralco in consideration for him giving way to Reyes' chairmanship of the CA's Special 9th Division[10] It catches nationwide attention when businessman Francis De Borja surfaces and accuses Sabio via sworn affidavit that the justice had asked for P50 million to back away from the case, to counter a government offer of money and a Supreme Court appointment in exchange for a ruling favorable to GSIS. [edit] Background In 1962, Don Eugenio Lpez, Sr. acquired MERALCO and it finally became Filipinoowned, but Ferdinand Marcos, by decree, placed it under a shell company called the Meralco Foundation, Inc., controlled by crony under government controlled Napocor.[11] In 1978, Meralco was fully controlled by the Marcos administration, but its ownership was finally returned to the Lopez family after the People Power Revolution by President Corazon Aquino. By executive order, she allowed Meralco to directly compete with NAPOCOR.[12] Gloria Macapagal-Arroyo on May 2, 2008, announced plans to reduce Luzon high power rates, amid a tough legal fight with Meralco before state energy regulators. Accordingly, GSIS, through its President Winston Garcia, on May 11, stated it "planned not only to buy out the Lopez family and other shareholders in Meralco but also to break up its concession to promote efficiency and transparency." But Meralco chair and CEO Manuel Lopez said he was not selling the utility. [edit] The cases and facts Oscar Lopez blamed the Arroyo administration's moves to take over Meralco in a reverse privatization, because of the Lopez-owned ABS-CBN's negative publicity against the government.[13]

[edit] May 27 stockholders meeting During the May 27, 2008 stockholders meeting, GSIS' President Winston Garcia obtained an SEC cease-and-desist order to stop and defer the counting of proxy votes held by the Lopez group until questions on its validity were resolved. GSIS accused the Lopezes of rigging the process.[14] GSIS failed to gain control of Meralco after a TRO from the Court of Appeals is issued, and the SEC order placed on hold. Meralco retained its 5 seats, the government its 4, while the 2 others are independent directors Artemio Panganiban and Vicente Panlilio. Aside from Manuel Lopez, the Meralco directors elected are Jesus Francisco, Felipe Alfonso, Christian Monsod and Cesar Virata, while the government board members elected aside from Garcia, are Bernardino Abes, Daisy Arce and Jeremy Parulan. On May 30, the said temporary restraining order from the Philippine Court of Appeals, against the SEC order from the 9th division, composed of Justices Roxas and Vidal was released. They are joined by substitute Justice Jose Sabio, replacement for Justice Bienvenido Reyes who was on leave. Despite the return of Justice Reyes in time from his leave, and his trying to claiming back his post, Sabio refused to give up the position. The TRO is released with Sabio signing instead.[15] Senior Associate Justice Rodrigo Cosico retires, and the Court of Appeals undergoes a mandatory reorganization. Following court rules, the case followed the Justice-writer assigned to it, Justice Vicente Roxas. The case moved to the 8th division, composed of Justice Reyes, Roxas, and Bruselas. The Courts 8th Division renders a 57-page judgment authored by Justice Vicente Roxas on July 24 against the GSIS, affirming Meralcos stance that the SEC has no jurisdiction over the issue.[10][16] A large scale negative media blitz is launched by unknown persons against the author of the decision Justice Roxas. Justice Myrna Dimaranan-Vidal, together with Justice Jose Sabio, former special 9th Division members, challenged the decision, per letter to CA Presiding Justice Conrado Vasquez Jr., thus: "How can the 8th Division issue an order when it is the 9th that has been hearing the complaint of alleged irregularities in the Meralco election?" It is also the 9th Division that issued the temporary restraining order on the SEC order to Meralco on May 30." Assistant Clerk of Court, lawyer Manuel Cervantes, said no irregularity had been committed when the 8th division came out with the decision instead of the 9th, simply a result of the reorganization of the court. "The case goes with the ponente(justice assigned to pen the case), Cervantes explained. Justice Vicente Roxas is the ponente. Even with the change in division, the case stays with him." Due to the retirement of some justices, Justice Vidal was reassigned to the 6th Division while Reyes became chair of the 8th, Cervantes said. Roxas was moved to the 8th division, Vidal went to the 6th, and Sabio to

the 9th. And since the rule is that the case goes with the ponente,the 57-page decision was issued by the division of which Justice Roxas was now a part, he said. [17] Permission is not required from the previous division nor its justices. He said the IRCA (Internal Rules of the Court of Appeals) does not require the justices who issued the TRO be the same justices to render the decision. The Court of Appeals Reorganization Office Order No. 200-08-CMV was issued by Presiding Justice Vasquez on July 4, three weeks before the decision was released. Justice Jose Sabio refuses to let go of the Meralco GSIS case, and insists on being a part of the division to decide the case. He submits the case to the internal rules committee of the court, headed by Justice Edgardo P. Cruz. The Court of Appeals committee decides as early as June 20 that the committee, which clarifies internal rules of the court, rejects Justice Sabios argument that the pending case should go with him following a court reorganization. By the rules, the division headed by Justice Bienvenido L. Reyes should hear the leadership row at Meralco. Sabio disregards Cruz's recommendation on the basis he was only a "junior justice".[15] On July 26, Justice Sabio, with the encouragement of Justice Vidal (his colleague in the 9th Special Division) broke a bribery attempt news and wrote to P.J. Vasquez, Jr. . [18] He joined Justice Vidal, initiating further, a media expose of their squabbles, alleging something stinks in the Meralco court ruling. Presiding Justice Vasquez released his opinion, also, per his July 24, 2008 Letter to Justices Bienvenido L. Reyes & Vicente Q. Roxas.[19][20][21] Businessman Francis de Borja emerges and reveals to the media a notarized and sworn affidavit that it was Justice Sabio who brought up a P50 million price for him to act in favor of Meralco in its dispute with the GSIS. Mr. de Borja asserts that Mr. Sabio had told him a Supreme Court seat was being offered in exchange for a ruling in favor of the GSIS, which is trying to wrest control of Meralco from the Lopezes. Expecting Sabio to answer that he would not be swayed by any offer and would rule according to his conscience, De Borja asked what it would take for him to resist the supposed government offer of a seat on the Supreme Court and money. He was taken aback when Sabio replied "P50 million, and then left.[22] Presiding Justice Conrado Vasquez comes under fire in the newspapers. Vasquez is criticized of having been able to spare the Court this trouble on the court's integrity had he followed the recommendation of the rules committee. With Vasquez's opinion favoring Sabio despite the reorganization, and the lack of a preliminary injunction that would exempt Meralco from being transferred to Reyess and Roxas's division, doubt is cast on Vasquez's motivations. Vasquez was revealed to have multiple connections to the GSIS. Daughter Ruth works for the GSISCompany secretary, daughter Agnes is a dentist in the GSIS medical department, his niece for the GSIS Vice President. His sister Lenny Vasquez de Jesus is a current consultant for the GSIS and was a trustee from 1998-2004. She is also the ninang (godmother) of the youngest child of GSIS president Winston Garcia.[15]

Manolo Lopez calls the accusations of Sabio a malicious and a pure fabrication. He vehemently denied the allegations, especially Sabio's accusation that he (Lopez) was waiting in the car during the meeting. He said he was out of the country for a medical check-up when the incident supposedly happened, and returned only last July 13. As proof, he showed tickets showing his departure dated June 27 and his arrival dated July 13.[23] The panel investigation finds out that Chairman Camilo Sabio of the Presidential Commission on Good Government(PCGG) called up his brother, Justice Jose Sabio Jr. twice. The first time on May 30, to lobby his brother to adopt the position of the Government Service Insurance System (GSIS) versus Manila Electric Co. (Meralco). This was hours before the Ninth Division of the Court of Appeals (temporarily headed by Sabio) issued a temporary restraining order in Meralcos favor. Camilo called up Jose at 8 a.m., when the courts practice is to hand down its decisions at 10 a.m. Then, after the Court of Appeals decided the case with finality on July 23, Camilo called up Jose again, asking why he hadnt signed the decision. When Camilo called the first time, he informed Jose that he was going to be the acting chairman of the Special Ninth Division of the court; and that furthermore, a TRO against the Securities and Exchange Commission order that the GSIS desired was being prepared. Camilo suggested to Jose that the latter shouldnt sign the TRO. When Camilo called once more, it was to ask why the 8th Division, and not the Special 9th Division had decided. Justice Jose had lobbied strenuously to head the 8th even after Justice Bienvenido Reyes, the person he was substituting for, was back on the job. Retired Supreme Court Justice Romeo Callejo Sr., one of those conducting the investigation, castigated Justice Sabio why he didnt bring up the intervention of his brother previouslyor reprimand his brother. Why did you not report your brothers attempt to influence you? That was unethical. You did nothing; you are a professor of ethics. Did you not consider that your brothers attempt was criminal? Callejo asked. Sabios replies alternated between the irrelevant (his brother was older than he, he said) to patent hair-splitting (there was no outright offer of a bribe from his brother). They only reduced the reasonable doubt so far supporting Sabio by reducing the options the justice operated under to three: he was hopelessly nave; he has been too clever for his own good; or he is a bumbling prisoner of circumstance, who has blown the lid off a legal system so thoroughly tainted it cannot absolve itself the longer the inquiry continues. This called into question Justice Sabios squabble with fellow Reyes over who should have jurisdiction over the case. It explained why Justice Sabio would, in turn, on July 1, meet lawyer Francis de Borja to discuss a case he had every reason to know would be brought up by a party friendly to Meralco. Its either that the Ateneo de Manila Law Schools professor of legal ethics had no comprehension of the subject he teaches or he is a plain and simple hypocrite. He brags about his being a righteous professor of legal ethics which we can never believe now after knowing from the investigation his lapses to perform what is expected of a member of the court.

This provided circumstantial evidence for concluding that Sabio was playing off both sides to see who might bid highest, confirming, incidentally, many details in De Borjas affidavit while calling into question the completeness, and ultimately the veracity, of Sabios own statements. Justice Sabio move to come forward to virtuously blow the whistle is cast in doubt by his selectivity. He denied allegations of Palace blandishments to do the GSIS bidding, but he left out his brothers intervention. He is looking more and more like a double-dealer who got a juicy Palace offer but tried to cash in quickly by basically making it obvious to the other side he would be open to a counteroffer. [5] As a government official, Camilos act of calling his brother to influence his decision is punishable under Article 243 of the Revised Penal Code. Article 243 (orders or requests by executive offices to any judicial authority) states that :"Any executive officer who shall address any order or suggestion to any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the courts of justice shall suffer the penalty of arresto mayor and a fine." As an official of the Court, Justice Sabio is mandated under Article 208 of the Revised Penal Code to report any possible violation of the law, with negligence and tolerance as the offending act. Article 208 states: The penalty of prison correctional in its minimum period (six months and 1 day to 2 years and four months) and suspension shall be imposed upon any public officer or officer of the law who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violations of the law, or shall tolerate the commission of offenses. [6] The public is in anticipation whether criminal charges for bribery and violation of Article 208 of the RPC will be filed against Sabio the soonest possible time to determine the extent of his culpability. [edit] Jurisdictional issue The internal strife and open quarrel over signature space on a judgment pushed the appellate court to the edge and is now at the center of a maelstrom.[66] The Government Service Insurance System (GSIS), raised a legal point, challenging the 8th CA Division's judgment dismissing GSIS's petition filed with the Securities and Exchange Commission (Philippines) against Meralco. The certiorari and injunction CA lawsuit was raffled off to the CAs 9th Division chaired by Justice Bienvenido Reyes (on leave at the time). A special raffle designated Reyes replacement, Justice Jose Sabio (as chair). With Justices Vicente Roxas and Myrna Vidal as members, the 9th Division heard the case. (The GSIS moved to inhibit Roxas on account of reports that "he met with Meralco lawyers on the day a temporary restraining order [TRO] was issued by the CA, barring the SEC from taking jurisdiction over the GSIS complaint against Meralco.") Sabios chairmanship issue with Reyes over the Special Ninth Division was overtaken by a July 4, 2008, reorganization at the Court of Appeals. Reyes and Roxas ended up in the 8th Division, which finally resolved the case in favor of the Lopez group on July 23. Sabio was

reassigned as chairman of the 6th Division. Sabio later complained that Roxas penned the decision even before either side had submitted their arguments.[67] Justice Reyes failed to assume the chairmanship of the 9th Division in place of Sabio, and the CAs 8th Division, chaired by Reyes and with ponente, Justices Roxas and Apolinario Bruselas as members, forthwith promulgated the challenged judgment in favor of Meralco. GSIS called the ruling, a patent nullity for such dismissal [of the GSIS case before the SEC] was not even prayed for by Meralco in its petition with the Court of Appeals.[68] P.J. Vasquez wrote Justices Sabio and Vidal that as members of their newly reconstituted 8th division, they are not very familiar with the case. Vasquez earlier granted Sabio a verbal go-signal to proceed in hearing the June 23 oral argument. Vasquez reiterated that "Sabios 9th division, since it issued a temporary restraining order (TRO), and its members heard and participated in the June 23 hearing, should sign and resolve the case. To allow the new division of Justice B.L. Reyes as Chairman, Justice Roxas, as ponente, and Justice Bruselas, Jr. as the third member, the resolution of the pending incidents in the case will be participated by two (2) members who were not present and did not hear the arguments during the hearing on the injunctive relief[69][70] [edit] Certiorari Justice Carolina Grino-Aquino, Chair of the Bribery Panel. GSIS, on August 13, 2008, in 65-page certiorari petition, asked the Supreme Court to nullify the CA judgment that prevented the SEC from case intervention, "considering the SC probe is still ongoing." It argued that the Special 9th Division should have ruled on the case.[71] [edit] Judgment After the Panel of Investigators conducted hearings from August 8 to 23, 2008, it submitted on September 4, its 59 pages Report to the Court en banc.[78] The panel found (page 44): the investigation has revealed irregularities and improprieties committed by the Court of Appeals Justices in connection with the MERALCO case, CA-G.R. SP No. 103692, which are detrimental to the proper administration of justice and damaging to the institutional integrity, independence and public respect for the Judiciary.[79] On September 9, the Supreme Court of the Philippines rendered a 58-page per curiam judgment, in this way:[80][81] "WHEREFORE, the Court RESOLVES as follows: (1) Associate Justice Vicente Q. Roxas is found guilty of multiple violations of the canons of the Code of Judicial Conduct, grave misconduct, dishonesty, undue interest and conduct prejudicial to the best interest of the service, and is DISMISSED from the service, with FORFEITURE of all benefits, except accrued leave credits if any, with prejudice to his re-employment in any branch or service of the government including government-owned and controlled corporations; (2) Associate

Justice Jose L. Sabio, Jr. is found guilty of simple misconduct and conduct unbecoming of a justice of the Court of Appeals and is SUSPENDED for two (2) months without pay, with a stern warning that a repetition of the same or similar acts will warrant a more severe penalty; (3) Presiding Justice Conrado M. Vasquez, Jr. is SEVERELY REPRIMANDED for his failure to act promptly and decisively in order to avert the incidents that damaged the image of the Court of Appeals, with a stern warning that a repetition of the same or similar acts will warrant a more severe penalty; (4) Associate Justice Bienvenido L. Reyes is found guilty of simple misconduct with mitigating circumstance and is REPRIMANDED, with a stern warning that a repetition of the same or similar acts will warrant a more severe penalty; (5) Associate Justice Myrna Dimaranan-Vidal is found guilty of conduct unbecoming a Justice of the Court of Appeals and is ADMONISHED to be more circumspect in the discharge of her judicial duties. (6) PCGG Chairman Camilo L. Sabios act to influence the judgment of a member of the Judiciary in a pending case is hereby referred to the Bar Confidant for appropriate action (7) Justice Jose L. Sabio, Jr.s charge against Mr. Francis R. De Borja for attempted bribery of a member of the Judiciary is hereby referred to the Department of Justice for appropriate action. This Decision shall take effect immediately." In a 33-page per curiam resolution, the Supreme Court on October 15, 2008, denied with finality the motions for reconsideration of all but one of the Court of Appeals (CA) justices, including businessman Mr. Francis de Borja's.[82][83] "...Apart from the above-mentioned separate concurring and dissenting opinion of one Justice, the Justices votes and inhibitions remained unchanged. WHEREFORE, the Motion for Reconsideration dated September 24, 2008 filed by Justice Vicente Q. Roxas; Motion for Reconsideration dated September 15, 2008 filed by Justice Jose L. Sabio, Jr.; Motion for Reconsideration dated September 24, 2008 filed by Presiding Justice Conrado M. Vasquez, Jr.; A Plea for Compassion and Clemency dated September 22, 2008 filed by Justice Myrna Dimaranan Vidal; and Motion for Reconsideration dated September 26, 2008 filed by Mr. Francis de Borja are DENIED WITH FINALITY."

Subic rape case

From Wikipedia, the free encyclopedia

The Subic rape case, officially known as People of the Philippines vs. Chad Carpentier, Dominic Duplantis, Keith Silkwood, and Daniel Smith, was a criminal case in the Philippines involving a Filipina and four US Marines. It caught wide media coverage and achieved political and international significance because of the Visiting Forces Agreement (VFA) between the United States and the Philippines, which had been the subject of protests from the beginning. Initially, the accuser, Suzette Nicolas, alleged that she was gang-raped. After a few days, she then said that only Lance Corporal Daniel Smith raped her. She also said that just before midnight of November 1, 2005, Smith raped her inside a moving Starex van at Alava Pier in Subic. Suzette also alleged that Smith's other companions, Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant Chad Carpentier, were inside the van cheering Smith on as it happened. Smith countered the charges saying that what occurred between him and Suzette was consensual sex.[1] On December 4, 2006, after numerous court hearings over the course of a year that were open to the public and the media, Judge Benjamin Pozon of the Makati City Regional Trial Court Branch 139 found Smith guilty of rape, sentencing him to reclusin perpetua, while the three others were acquitted.[2] Smith was confined in the US embassy in Manila, despite the judge's order that he be confined in a Philippine jail, and despite protests from Suzette's camp. On April 23, 2009, the Court of Appeals headed by three Filipino female Justices, Associate Justices Monina Arevalo-Zenarosa, Remedios Salazar-Fernando and Myrna Dimaranan-Vidal, reversed the decision of the lower court and ordered Smith's immediate release, stating that "... a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence we must acquit."[3][4][5][4][5][6]

Contents
[hide]

1 History o 1.1 Background o 1.2 Trial o 1.3 Conviction o 1.4 Recantation o 1.5 Acquittal 2 Rape in the Philippines o 2.1 The law o 2.2 Application to this case 3 Implications o 3.1 Visiting Forces Agreement o 3.2 Philippine-American relations 4 References 5 External links

[edit] History
[edit] Background
Suzette, who grew up in the Southern Command in Zamboanga City, was invited to Subic by a friend, US Navy Petty Officer Christopher Mills, together with her stepsister, Anna Liza. Mills was a family friend whom they met in Zamboanga, where joint US-Philippine military exercises had been held over the years. Suzette's family operated a canteen which was frequented by soldiers. Suzette, a management accounting graduate, managed the said canteen and in the process befriended military personnel, including Mills and her boyfriend, Brian Goodrich of the 12th Marines Operations Platoon which is based in Okinawa. Upon the invitation of Mills, and with Goodrich's knowledge, Suzette and Anna Liza flew to Subic. On the night of November 1, 2005, after eating pizza for dinner, Mills invited the ladies to the Neptune Bar for drinks. Mills later left the bar, leaving Suzette and Anna Liza behind in the company of other Marines dancing and having more drinks. Forty-five minutes later, Mills returned and found only Anna Liza who had been looking for the missing Suzette. The two then started a search for her. Around this time, Suzette had been found at the Alavar Pier. She was found extremely drunk and crying with her jeans worn inside out and a condom sticking out of her underwear. Several witnesses surfaced, from the security guard of the bar who saw Smith carrying a drunk Suzette to the van to several other people who saw the Marines dumping Suzette at the pier and including the driver of the van rented by the Marines. At first, the driver, Timoteo Soriano Jr., accused the Marines of raping Suzette. Later, he retracted his

statement saying he was forced by police to sign the affidavit accusing the Marines.[7] When the Marines were questioned, they denied the charges. Smith claimed that he and Suzette had had consensual sex. Two other accused Marines were released from custody after they were able to prove they were buying pizza at the time of the incident and were not in the van.[8]

[edit] Trial
This section requires expansion. As soon as the Philippine Department of Justice started working on the case, it became clear that the rape case and the custody issue of the Marines had political significance. During the course of trial, in accordance with the terms of the VFA, the accused were in the custody of the US Embassy. Throughout the trial, the issue of U.S. vs. Philippine custody on the accused U.S. Marines was the focus of street demonstrations and protests by political groups and women's rights advocates, and it was a hot news item in the Philippine press.[9] However, some Filipinos and expatriates believe that Suzette was just an extortionist, whose rape story was just a lie which militants were willing to use to score the government on the US-RP Visiting Forces Agreement. Before the court found Smith guilty, columnist Sassy Lawyer of the Manila Standard, lawyer and columnist Connie Veneracion wrote, "One of the popular theories going around is that this is a case of extortion ...", concluding, "Without passing on the truth or falsity of such a claim, ..., extortion is a matter for the defense to establish as a clear motive supported by relevant evidence. Character is not sufficient evidence. Only those without real evidence rely on guesswork, innuendoes and trial by publicity."[10] Nationalistic Filipinos believe that the Visiting Forces Agreement allows for crimes against civilians in the Philippines to continue unjustly without legal consequences.

[edit] Conviction
This section requires expansion. Lance Corporal Daniel Smith was found guilty beyond reasonable doubt of rape by the Makati Regional Trial Court Branch 139 on December 4, 2006.[11] The court found him guilty on the premise that Suzette was severely intoxicated that night and was therefore deprived of reason to consent to sex and incapable of sensing or fighting off danger. The court relied on the definition of rape in Article 335 of the Revised Penal Code, which says: ART. 335. When and how rape is committed Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation 2. When the woman is deprived of reason or otherwise unconscious 3. When the woman is under twelve years of age or is demented. Suzette's blood alcohol level that night, as revealed by the Blood Alcohol Content (BAC) approximation that was calculated by a team of toxicologists led by Dr. Kenneth Hartigan

Go, was pegged at 400 mg/dL-445 mg/dL at its peak that night. However, a BAC test was never conducted on Suzette but it was based on her behavioral manifestations as reported by witnesses and on Suzette's own accounts of the drinks she had consumed that night.[12] Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant Chad Carpentier were acquitted due to lack of evidence. Smith later appealed the case to Court of Appeals.[13]

[edit] Recantation
On March 17, 2009, Suzette's mother submitted a sworn affidavit from Suzette dated March 12, 2009 saying she wasn't sure that she was raped. She said that her conscience had been bothering her and that she wanted to move on with her life.[14] She also fired her lawyer, Evalyn Ursua.[15][16][17][14][18][19] Some Philippine solons, notably Senator Loren Legarda, expressed a different view. In a press statement, Legarda pinpointed her perception of the role of the US in Suzette's decision. "Americas act of buying Nicoles silence is a precedent. They are bound to do this every time. While America keeps its processes intact and its soldiers protected, our morality as a nation is trampled upon, our justice system spat on.[20] On February 8, 2009, St. Louis, Missouri's online news, STLtoday.com, featured an interview article of Smith's parents, Jim and Donna Smith, wherein they shared their agony and said that they believe that Daniel Smith was innocent of the rape charges. They also said that his case became a pawn in a political drama and that the case was not about Smith and Suzette anymore.[21] Senator Ana Consuelo "Jamby" Madrigal, a Suzette supporter, believes perhaps there was a deal [that was] too good to refuse. Suzette's lawyer, Evalyn Ursua suspects that the Malacanang Palace (Philippine President's Office) could be behind the issuance sworn affidavit.[22][23] On the contrary, Speaker Eduardo Ermita said that the recantation had come as a surprise to the government and that the government had nothing to do with it. Speaker Prospero "Boy" Nograles, Jr. and Marikina Congressman Marcelino Teodoro said that politicizing the issue through baseless charges would not help the country. Speaker Nograles also said that, Its the victims sole and very personal decision here. The woman is old enough and intelligent enough to make up her own mind. Why should Palace be involved when it was trying to get justice for the victim?. Congressman Teodoro added that the allegations of Lawyer Ursua that the Malacanang Palace had a hand in the retraction should be proven.[24][25]

Suzette's mother said that nobody pressured Nicole. She also said that it was unlikely that they would ask for help from the Philippine Government because "the government has never helped us."[26] Suzette's mother said Suzette left the Philippines in mid-March for the US for good to join her fiance of two years who is in the US Military and that she had been working on obtaining her US visa for a long time. According to Ninoy Aquino International Airport and Philippine Bureau of Immigration, Suzette flew to Japan and that they didn't have a record of her connecting flight to the US.[27] Susan appealed to the public to allow Suzette to live a normal life.<[13][26] According to Justice Secretary Raul Gonzalez, all he knew was that Suzette wanted assistance from the Philippine Government in securing a visa for Italy where her brother reportedly stays. He also said that Suzette could face a perjury case for lying under oath which was contradicted by House Foreign Affairs Committee Chairman Antonio Cuenco. Chairman Cuenco said that since Suzette had doubts on what she said during the trial, that didn't make her a perjurer.[28][29] Justice Secretary Gonzalez further stated that he should have granted Suzette's wish to remove the "meaty" portions of her affidavit in 2005 when she filed the rape case against Smith. He also added that if he helped her in removing those portions, there "never" would have been a case.[30][31][32] He added that he suspects that anti-US military groups in the country might have originally pressured and "brainwashed" Suzette to pursue the alleged rape charges against Smith and that everybody were taken for a ride.[31][32] Secretary Gonzalez added that maybe Suzette's lawyer, Evalyn Ursua, and the groups who were supporting Suzette told her to pursue the alleged rape case. He added that if Ursua will be found guilty of perjury and for offering false testimony, she could be penalized from prison mayor (six to 20 years) to reclusion perpetua (40 years).[32][33] Secretary Gonzalez also said that Suzette's recantation statement won't hold water because her affidavit is just a scrap of paper.[14] He also added that Suzette's affidavit may not be admitted as new evidence because it should have been introduced during the 2006 trial.[34] Interior Undersecretary Marius Corpus said that Daniel Smith will not be cleared of the rape case and cannot go until the Court of Appeals junk the case. The case was in Court of Appeals for more than 2 years wherein Smith had always insisted that there was a consensual sex between him and Suzette. The last time Interior Undersecretary Corpus visited Smith in US Embassy in February 2009, he said that Smith told him that he was innocent of the rape case and that there was a misappreciation of the facts by the trial court.
[14]

Zambales Congresswoman Mitos Magsaysay, member of Arroyo's administration party and whose district covers where the incident occurred, said that Suzette did not originally

complain of rape when she talked to her on November 1, 2005 (the day of the incident). Congresswoman Magsaysay also said that the new affidavit that Suzette submitted is consistent on what Suzette, the Starex van driver Timoteo Soriano, Suzette's sister and the other witnesses told her at the time. She also said that the concern of Suzette then was her mother's anger that she stayed out late that night. Congresswoman Magsaysay further stated that it is very obvious that some people took over and influenced Suzette to sue Smith for rape and that there were some changes on the details of the incident on the affidavit that Suzette filed in 2005, apparently by individuals and groups who have vested interest on the case.[35][36] On the other hand, a women's rights group, EnGende Rights, believe that Suzette's affidavit 'should not be given weight' because the timing is not only "suspicious," but also because Philippine Supreme Court decisions in a lot of cases show that witness recantations are not given weight.[35] On May 24, 2009, Suzette's former lawyer Evalyn Ursua, Former Senator Leticia RamosShahani and the militant groups Gabriela and Bagong Alyansang Makabayan filed a petition to Supreme Court to investigate Suzette's recantation affidavit. The petition to investigate the affidavit was approved by Chief Justice Reynato Puno on May 25, 2009. The group also asked the Supreme Court to stop the Court of Appeals from resolving Smith's appeal pending the result of the investigation that they were seeking.[37][38] Meanwhile, Suzette's mother, Susan Nicolas, was angry and called on Suzette's former lawyer, Evalyn Ursua, and like-minded groups and individuals to stop initiating action on the case. Susan also demanded to know why Ursua was asking for an investigation when we were the ones who approached [Smiths lawyers] so we can get the [P100,000 court-awarded civil damages] intended for us. Pertaining to Ursua, Suzette's mother added, What does she want to happen? Im really angry. Why cant she just accept that we dont want her services anymore?[37] Philippine Supreme Court Rule 121 Section 2b of Criminal Law Procedures states that the court shall grant a new trial if a new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably changed the judgment.[39] The leftists and militant groups Gabriela (with Lisa Maza and Luzviminda Ilagan), Bayan Muna (with Teodoro "Teddy" Casino, Joel Virador and Satur Ocampo), Akbayan (with Riza Hontiveros), EnGende Rights (with Clara Rita Padilla), Volunteers Against Crimes and Corruptions (with Dante Jimenez), Bagong Alyansang Makabayan (with Renato Reyes Jr.), Task Force Subic (with Princess Nemenzo), The Public Interest Law, Quezon Congressman Lorenzo Tanada III, Senators Ana Consuelo "Jamby" Madrigal, Loren Legarda, Pia Cayetano, Rodolfo Biazon, Francis Escudero, Manny Villar and Francis Pangilinan, Quezon City Congressman Matias Defensor and Congresswoman Nanette Castelo-Daza, Albay Congressman Edcel Lagman, Makati Mayor Jejomary Binay, Dr.

Quintin Doromal, Lawyers Evalyn Ursua, Romulo Capulong and Harry Roque, Clara Padilla, and Former Senators Jovito Salonga, Francisco Tatad and Wigberto Tanada were among Suzette's supporters on her rape lawsuit against Smith and they are known to be anti-VFA.[35][36][40][41][42][43][44] According to Smith's lawyer, Jose Justiniano, Suzette's family contacted him on March 12, 2009 and asked for a meeting with him and the other lawyer who is also representing Smith. Suzette told them that she fired her lawyer and that she wished to accept the 100,000 Pesos (equivalent to US $2000) that Judge Pozon ordered Smith to pay her for moral and compensatory damages in December 2006.[31] At the time of Smith's sentencing, Suzette had wanted Smith to be punished of death penalty instead of the 40 year imprisonment sentence that Judge Pozon imposed.[45]

[edit] Acquittal
This article may be too long to read and navigate comfortably. Please consider splitting content into sub-articles and using this article for a summary of the key points of the subject. (May 2009) On March 23, 2009, Manila Times, a Philippine newspaper, published the draft acquittal of the Court of Appeals in favor of Smith even without Suzette's recantation. According to the Dizon draft ponencia[46] Smith is "innocent beyond reasonable doubt. Court of Appeals Justice Agustin Dizon, who retired on June 27, 2008, had written that the accused should be acquitted both on the technical and substantive aspects. Dizon said that the issues of force and intimidation and unconsciousness via intoxication cannot be appreciated because such evidence failed to convince him to convict Smith.[47][48][49] In the Dizon ponencia,[46] the justice pointed out that Smith could not be found guilty beyond reasonable doubt for rape as the information on the charge sheet filed by the lawyers of Suzette showing force and intimidation appeared questionable. Force and intimidation are elements in the commission of the crime of rape under Article 335 of the Revised Penal Code. Rape is committed by having carnal knowledge of a woman under of the following circumstances: [1] by using force and intimidation; [2] when the woman is deprived of reason or otherwise unconscious. The prosecution filed the information on the basis of force and intimidation, but Justice Dizon noticed that the evidence presented was intoxication, which is interpreted as deprived of reason or otherwise unconscious.

Dizon reasoned that intoxication as defined under Article 15 of the Revised Penal Code is an alternative circumstance, which means that it could either be aggravating or mitigating to the crime. The justice wrote that intoxication could not be equated with unconsciousness or viceversa. This line of reason gave rise to doubt whether or not Suzette was unconscious or intoxicated. It will be recalled that Suzette admitted getting drunk with Smith. As a rule under the Article III, Section 14, paragraph 2 of the 1987 Constitution on the Bill of Rights, the accused has to be informed of the charges filed against him. One cannot be charged with one offense on this particular element force and intimidation of the crime while presenting another element, intoxication. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf, the law says.[47][48] Doubt was inculcated in the mind of Dizon as to the factual circumstances of the crime of rape between Suzette and Smith. Dizon was not convinced that Suzette was raped at all. He said that the use of force applied to Suzette was not apparent because she herself went to the vehicle voluntarily. Smith alone allegedly committed the rape, without the participation of the other US soldiers inside the van. The justice wrote that either way, the issues of force and intimidation and unconsciousness via intoxication could not be appreciated because such amount of evidence could convince him to convict Smith. Dizon wrote that Suzette was not deprived of reason after all, since she was aware of the details surrounding the crime because at that exact moment she was drunk but not totally unconscious. Hence, he decided to draft a ponencia,[46] on the front page of which ruled that Smith should be acquitted and that justice must be served to all regardless of sex, race or creed.[47]
[48]

On May 2008, Court of Appeals Justice Celia Librea-Leagogo, the senior member of the division, did not sign the Dizon ponencia[46] and asked for two months to review the case. Dizon was the junior justice of the division at the time. Leagogo was meticulous about the Dizon draft and she allegedly feared that this might go against public opinion and the Court of Appeals might be the subject of criticism. Surprisingly, even before Dizon retired, Leagogo inhibited herself from handling the case, saying that she was a friend of one of Smiths lawyers. The justices who talked to Manila Times said they agreed with Dizons draft ruling, but unfortunately, they added, he ran out of time. He was not able to hand down the ruling before reaching the mandatory retirement age of 70. These developments delayed the signing of the draft decision and forced the 17th Division to look for other members. Meanwhile, time had run out for Dizon, as he was reaching retirement age. The case was raffled anew, with Associate Justice Juan Enriquez coming in as the new member of the courts Special Division. Enriquez, however, took the tack the others had taken for the same reason that one of Smiths counsels was his friend. He was replaced by Justice Hakim Abdulwahid. With the subsequent raffle of the case, the new ponente[50] replacing Dizon was Zenarosa, with Justices Mariano del Castillo and Apolinario Bruselas as members. Several appellate court justices who talked to Manila Times on condition of anonymity said that most of them support the acquittal of Smith on the basis of the Dizons draft. The justices said they have seen several lapses in the conviction made by Makati Regional Trial Court Judge Benjamin Pozon. Their statements on the Dizon paper were confided to Manila Times by the Court of Appeals justices even before the March 12, 2009 affidavit of desistance manifested by Suzette to the appellate court. The Manila Times source said that the current ponente[50] of the case, Justice Monina Arevalo-Zenarosa vowed to issue her ruling before her retirement in August 2009. The US Marines appeal has been pending before the Court of Appeals for more than two years now, stalled by the inhibition and retirement of justices assigned to handle the case.
[47][48]

On March 26, 2009, Suzette's former lawyer, Evalyn Ursua, and Suzette's supporter on her rape case against Smith, Teresita Ang-See, told Manila Times over the phone that they had asked Presiding Justice Conrado Vasquez of the appellate court to ferret out that source.

Ang-See personally went to the chambers of Vasquez on Wednesday to give him a copy of their petition to the Supreme Court (SC) entitled Petition for Investigation of the Execution of the Supposed Nicole Sworn Statement date 12 March 2009 and the Improper Release of the Court of Appeals Draft Ruling of Acquittal. Manila Times told Ang-See and Ursua that the story it ran on March 23, 2009 was a product of enterprise journalism, not of a supposed conspiracy to help the cause of Smith. It reserved its right not to name the source of the leaked draft decision. Ang-See said that their petition before the High Tribunal was an administrative complaint for disbarment of the justices who had shown bias for the acquittal of Smith. Ursua said that she had filed the petition not as a lawyer for Suzette but as a citizen of the Philippines and as an officer of the court.[49] On 23 April 2009, the Court of Appeals (CA) reversed Smiths conviction, saying that no evidence was presented in court to show that the American had employed force, threat and intimidation on Nicole. The court ruled that Smith's sexual tryst with "Nicole" was "a spontaneous, unplanned romantic episode," and that they were "carried away by their passions." The Court of Appeals also said that "Suddenly the moment of parting came and the marines had to rush to the ship. In that situation, reality dawned on Nicole what her audacity and reckless abandon, flirting with Smith and leading him on, brought upon her. That must have been shattering, but added to this was the mocking moments she heard from inside the van; leave that bitch! or words to that effect-which really broke her as she shouted back in denial: I am not a bitch, it said. The court said: No evidence was introduced to show force, threat and intimidation applied by the accused upon Nicole even as prosecution vainly tried to highlight her supposed intoxication and alleged unconsciousness at the time of the sexual act.[4][5][6] As in this case, a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence, we must acquit, read the CA decision. The CA said the Makati Regional Trial Court ignored and overlooked circumstances surrounding the intoxication of Nicole and contusions on her body when it convicted Smith of the crime of rape. The degree of Nicoles supposed intoxication was not clearly established, read the CA decision. The CA said Dr. Kenneth Go, a toxicology expert, testified in court that no blood test was conducted on Nicole, which could have proven her intoxication.

The degree of Nicoles supposed intoxication was not clearly established, read the CA decision. From the narration, after draining all those drinks of Sprite Vodka, B-52s, Singaporean sling, B-53 and half a pitcher of Bullfrog, although feeling dizzy, she danced with Smith through all four songs for about 15 minutes. She did not drop on the floor nor did she vomit. The CA said the trial court based its findings of Nicoles intoxication on mere observations of witnesses, not on scientific grounds. If Nicole was really drunk, she would have had a hard time rising up, much more standing up, or she would have just dropped, a common experience among Filipino girls, read the CA decision. The CA rejected the trial courts findings that there may be forcible entry to explain the contusions in Nicoles genitals. Even in consensual sex, contusions could be inflicted by finger grabs, as in Nicoles case, the CA decision quoted the testimony of Dr. Rolando Marfil Ortiz II, who was presented as medico legal officer. Citing a 1999 case, the CA said, When there appears on record that the trial court has overlooked, ignored or disregarded some fact or circumstance of weight or significance that, if considered, would alter the results, this Court may disregard the findings of the trial court and make its own conclusion. The CA described as deceptive posturing the portrayal of Nicole as a demure provinciana lass.[51] Tearfully, bewildered, alone and confused, in a strange place, dumped in a curb literally with her pants down, she remembered her mother and what she would say, read the CA decision. She remembered too, her boyfriend Brian. She had to hit back in the only way she could to salvage, at least, a vestige of her self-esteem.[51] The acquittal was written by Associate Justice Monina Arevalo-Zenarosa. Two other women Associate Justices of the Court of Appeals' Special 11th Division Remedios Salazar-Fernando and Myrna Dimaranan-Vidal concurred with the decision.