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.#

Nicole Did Not Fail Us. The Justice System Did

by: Rob Ty
Mar 18, '09 12:34 PM

Sen. Francis Pangilinan's words, not mine. But I completely agree with him.

Let's one thing straight: We are not the victims here. She is. We've never been raped. Never been exposed to an overblown media circus. Never been agitated in court. Never been harassed by reporters, lawyers and embassy men.

So when someone like Korina Sanchez announces on her AM radio station that Nicole is a disgrace to Filipino women everywhere (translated from tagalog), you can't help but shudder.

So this is justice, this is hate. It's no wonder she left the country.

We are not the victims here. Yet, we are the ones who cannot forgive. Here we are, sitting in our armchairs, waving our nation's flags, our gender's hopes, our nurtured concepts of justice.

But the thing is, we did nothing. We let people like Raul Gonzalez change the prosecutors of the case. We let people like NSA Norberto Gonzales change custody of Smith in the dead of the night. We let the US embassy exert pressure on Nicole by withdrawing her US VISA. We allowed countless women like Nicole to be gobbled up by the system, by the politics.

So who are we to judge? Who are we to cast the first stone?

Truth be told, we've already used her up. We got the conviction - which allowed us to question the VFA in the Supreme Court. We got the Supreme Court decision.

What more do we want? Maybe just more blood, sweat and tears.

What Can We Do?

Right now, if you really care for Nicole, you will support the drafting of a disbarment complaint against Daniel Smith's lawyer.

Why? At the time of the affidavit (March 12), Evalyn Ursua was still Nicole's lawyer. She was only fired last Monday (March 16). Smith's lawyer violated a cardinal rule of legal ethics by talking to Nicole behind her lawyer's back. Why is this unethical? The legal reason is that it undermines a fellow attorney's ability to handle her client's case. It's a form of disrespect for a colleague. The practical reason is to prevent people from being tricked since the best defense against the opposing lawyer, is your own lawyer.

In the case of Camacho v. Pangulayan, a UP law professor accused some lawyers of directly negotiating with his clients in order to obtain an amicable settlement. In effect, they ignored him even though he was the counsel on record. The Court agreed with the professor and said that the failure to inform opposing counsel is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. The erring lawyer was suspended from the practice of law for three months.

Fast forward to the present: Smith's lawyer prepares a statement, has a junior associate (who, by the way, is a UP law graduate) notarize the document, and then asks Nicole to sign it as a condition for the release of her VISA and 100,000 pesos. All this WITHOUT EVER consulting her counsel on record.

If Nicole had a lawyer, she might still have signed the affidavit. But it would have never looked this bad. Take a look at paragraphs 6-10, which incorporate all the arguments the defense raised during trial. ALL OF THEM.

And then take a look at the last sentence of the affidavit: "I would rather risk public outrage than do nothing to help the court in ensuring that justice is served." The sentence brings a whole new low to the legal profession. I admit I am ashamed of what we have become.

Nicole left everything behind so she could start anew, and I don't blame her. Not one bit.

THE STRUGGLE CONTINUES FOR THE SENTOSA 27++ NURSES

News Release
March 18, 2009

Reference: Atty. Felix Vinluan, Justice for the Sentosa 27++ Campaign,
email: nafconusa@yahoo.com

Community Forum Pledges to Struggle for Complete Justice for Wronged Healthcare Workers

"It's time to up the ante...."

This was the sentiment posed by community supporters of the Sentosa 27++ Nurses who will be holding an important forum on the ongoing Justice for the Sentosa 27++ Nurses Campaign this Sunday, March 22nd, 2pm at Jing Fong Restaurant in Chinatown . Entitled "Up the Ante Towards Full Justice for the Sentosa 27++ and All Victims of Illegal Recruitment" the dinner event will feature highlights from the community campaign for the trafficked healthcare workers from the Philippines who came to the United States in 2006 under direct hire nursing contracts with SentosaCare LLC. But after tenets of the Sentosa contracts were not honored, the 26 nurses and a physical therapist fought back with the help of their lawyer, Felix Vinluan.

Sentosa's CEO Bent Philipson retaliated against 10 of the nurses who resigned from his Avalon Gardens Nursing home in Suffolk County , Long Island and Vinluan by filing criminal charges of so-called patient endangerment. In a historic court decision earlier this year, the criminal charges against the 10 Avalon Nurses and Vinluan were formally prohibited. This was after supporters, such as the Legal Aid Society, the National Employment Lawyers Association of New York, New York State Nurses Association (NYSNA), the American Nurses Association (ANA), SEIU 1199, and the Suffolk County Defenders Association filed their respective amicus briefs to support the Article 78 prohibition petition filed by lawyers James Druker and Oscar Michelen for the nurses and Vinluan.

"Justice has not been fully served. We still need to fight for the shutting down of SentosaCare LLC. The former Sentosa nurses represent millions of Filipino migrant workers who fall victim to illegal contractualization and other forms of human trafficking because contractors like SentosaCare LLC prey on their desire to escape joblessness and poverty in the Philippines . Every year, tens of thousands of Filipinos enter the US as healthworkers or teachers duped by fraudulent contracts signed in the Philippines ," states Rico Foz of the National Alliance for Filipino Concerns or NAFCON.

NAFCON, along with supporters from the Philippine Nurses Association of America (PNAA), NYSNA, Movement for a Free Philippines (MFP), formed the Justice for the Sentosa 27++ Campaign (J4S27), a grassroots community campaign in support of the nurses as early as 2006, at a time when the nurses plea for justice was largely shunned by others in the Filipino community. "Unfortunately, there were those who refused to offer help to the nurses back then that are only speaking out now in support because of the Avalon 11's recent victory against criminalization," Foz added.

In 2007, the Justice for the Sentosa 27++ Campaign marched as one large contingent down Madison Avenue during the annual Philippine Independence Day Parade in New York City after holding several community forums at the NAFCON office in Queens . NAFCON, PNAA and NYSNA members also held outdoor demonstrations in the freezing cold winter of 2007 outside the Suffolk County Courthouse during the hearings on the Avalon 11's case. Congressional hearings were held in Manila through the J4S27's campaign's Philippine-based partners investigating the Sentosa Recruitment Agency, the agency who contracted the nurses from the Philippines to work at Sentosa-owned facilities in New York State . A campaign website was generated with a petition calling for six basic demands, which include the dropping of all civil and criminal charges against the nurses and shutting down of SentosaCare LLC. "For as long as all six demands have not been met, we will continue to up the ante on this important struggle for justice," Foz ended.

Jing Fong Restaurant is located at 18 Elizabeth Street , between Canal and Bayard Streets in Chinatown . The Justice for the Sentosa 27++ Campaign site can be accessed at www.s27plus.com. ###

Leftist Victory in El Salvador Closes an Historic Cycle

by: Marc Cooper
The Huffington Post
Special Correspondent, frmr Editorial Director of OffTheBus
Posted March 16, 2009 | 09:08 AM (EST)

The apparent victory of leftist candidate Maurico Funes in Sunday's presidential election in El Salvador finally closes out the Cold War in Central America and raises some serious questions about the long term goals of U.S. foreign policy.

With Funes' election, history has come full cycle. Both El Salvador and neighboring Nicaragua will now be governed by two former guerrilla fronts against which the Reagan administration spared no efforts in trying to defeat during the entire course of the 1980's. We will now coexist with those we once branded as the greatest of threats to our national security. Those we branded as "international terrorists" now democratically govern much of Central America.

Funes, once a commentator for CNN's Spanish-language service, comes to power representing the Farabundo Marti National Liberation Front (FMLN), a Marxist guerrilla group-turned-political -party, an organization that the U.S. government once described in terms now reserved for Al Qaeda and Hizbollah.

From the late 1970's until a negotiated peace settlement in 1992, the FMLN fought a bloody civil war against a series of U.S.-backed right-wing regimes. Those Salvadoran regimes engaged in horrific massacres and deployed savage death squads, taking a massive human toll. While the FMLN also perpetrated atrocities, all independent analysts agree that the overwhelming majority of the 75,000 who were killed in the war in El Salvador were victims of government-sponsored violence.

This same FMLN which now comes to power in El Salvador was once declared as the primary perpetrator of "international terrorism" by the Reagan administration who deployed hundreds of U.S. military advisors to the tiny Central American country and who quadrupled the size of the Salvadoran Army. In this all-out quest to crush the FLMN, U.S. authorities, at best, turned a blind eye to the bloody excesses of the Salvadoran regime. At worst, it encouraged them.

At the same time in history, the U.S. spent billions creating a "contra" army to destabilize and dislodge the leftist Sandinista National Liberation Front (FSLN) which had taken power in Nicaragua in 1979, overthrowing the dynastic and dictatorial rule of the Somoza family - another U.S.-backed ally.

During the entire eight years of the Reagan era, defeating both the FMLN and the FSLN were the absolute top priorities of U.S. foreign policy as the administration argued that the Texas border was a short hop from the fields of Central America and that all must be done to stop the northward march of hemispheric revolution. The sort of inflammatory rhetoric used to describe the Central American guerrilla movements was an eerie precedent for the overheated war of words against "The Axis of Evil" that would emerge earlier this decade.

The Nicaraguan Sandinistas were eventually defeated by an American-backed opposition in elections in 1990 and democratically and peacefully transferred power (something the Reaganites claimed could never happen). But the Sandinistas returned to power last year re-electing its historic leader Daniel Ortega as president. Almost twenty years of rule from the pro-U.S. coalitions that had succeeded the Sandinistas had failed to implement any meaningful social change.

The Salvadoran FMLN, meanwhile, which has acted as a parliamentary opposition party since the 1992 Salvadoran peace accords, now comes to power ending twenty years of uninterrupted rule by the country's ultra-conservative ARENA party - a political organization born directly from the death squads of the 1980's and, yes, a close ally of the U.S.

All of this raises the question of why so many lives were spent and so many billions in U.S. dollars were burned in an attempt to expunge these leftist forces twenty years ago? Wouldn't it have been possible in 1989 to find some sort of accommodation with these radical forces and not postpone the inevitable for twenty years?

In the case of Nicaragua, the year-old reborn and duly elected Sandinista administration--while far from a model of democratic ethics-- hardly poses any threat to U.S. interests. Though President Ortega, saddled with governing one of the poorest countries in the hemisphere, still clothes his actions in revolutionary rhetoric, he has headed up what many think is essentially a conservative regime which recently outlawed all abortion (a move that could warm the deceased Ronald Reagan's heart). Ortega campaigned successfully for the presidency last year by quoting from scripture and has not flinched from pacting with the most conservative of political elements.

In the case of El Salvador, President-elect Funes has pledged to maintain close and cordial relations with the U.S. And while the FMLN--like the Sandinistas - clings to some of its Cold War revolutionary rhetoric, no one expects any radical moves by the incoming government. Fighting widespread poverty aggravated by the global slump and a chilling crime wave, the FMLN will have its hands full just keeping the government on keel. President-elect Funes holds distinctly moderate views and in an American context would be little more than a liberal Democrat. In any case, the FMLN can point to its recent governance of several Salvadoran cities (including until recently the capital of San Salvador) as its democratic bona fides.

The resurrection of the FMLN and the FSLN at this time in history raises a troubling irony regarding U.S. foreign policy. Yesterday we were told they were our greatest enemies. Today, now in power, they hardly garner any U.S. press coverage, let alone much attention from Washington. Likewise, the right-wing forces we bankrolled with blood and treasure and who we were told were a bulwark of Western Civilization, utterly failed in solving the basic existential questions that bedeviled their respective countries. Twenty years from now, we have to ask, what will Iraq, Afghanistan and Syria look like? Might we find ourselves peacefully co-existing with the same undefeated forces who today we proclaim our mortal enemies? Might we be better off using our soft power, our economic and diplomatic clout to force negotiation and moderation with those we perceive as irrational and radical enemies? Or do we only reach that conclusion after the dissipation of prolonged, bloody and ultimately unsuccessful armed intervention and war?