By Ronron
June 18, 2007
The Special General Court Martial (GCM) created by Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon, Jr. in November last year to try military officers who allegedly planned to stage a coup d’ etat in February that year still has not arraigned the 28 accused to this date.
During the last hearing last Friday, both the prosecution and defense accused each other of causing the delay in the arraignment of the accused, led by former Marines commandant Maj. Gen. Renato Miranda and former Army Scout Rangers chief Brig. Gen. Danilo Lim.
“They (defense lawyers) are the ones delaying the case. All motions under the sun, they would file just to postpone the proceedings, the challenges and the arraignment. They even invoke personal matters like not eating yet, which is uncalled for,” military prosecutor Lt. Col. Jose Feliciano Loy, Jr. told reporters in one of the breaks in last Friday’s proceedings held at the Philippine Army’s 2nd Infantry Division headquarters in Tanay, Rizal.
The 28 accused – nine from the Marines and 19 from the Army – are separately facing charges of violating Articles of War 63 (Disrespect Towards the President, Vice President, Congress of the Philippines, or Secretary of National Defense); 65 (Assaulting or Willfully Disobeying Superior Officer); 67 (Mutiny or Sedition); 96 (Conduct Unbecoming of an Officer and a Gentleman); and, 97 (Conduct Prejudicial to Good Order and Military Discipline).
The charges stemmed from the alleged participation of the accused in the alleged coup plot on February 24, 2006, and on the standoff two days later at the Philippine Marine Corps (PMC) headquarters in Fort Bonifacio, Taguig City in protest to the sudden relief of Miranda.
But the defense, through lawyer Frank Chavez, argues it is the prosecution that must be blamed for the delay because it refused to immediately “give the accused a copy of the Pre-Trial Investigation Report (PTIR) and the Pre-Trial Advise (PTA).”
The defense asserted that it is the Constitutional right of the accused to get a copy of the PTIR and PTA so they will be made fully aware of the charges against them.
“The PTIR was already available since October last year but they only gave it in April (this year),” said Chavez, who is representing accused Miranda and Army Maj. Jason Aquino.
The PTIR was supposed to be a basis of Esperon in deciding whether or not the 28 accused will proceed to court martial proceedings. It is, however, subject to review by Esperon’s Senior Judge Advocate (SJA) or legal adviser, Col. Pedro Davila, who actually overturned the PTIR recommendations to drop the charges against most of the accused.
The defense lawyers fought to obtain a copy of the PTIR so they could question Esperon’s basis in approving the court martial proceedings against the accused now. They did the same for the PTA so they could scrutinize the SJA’s basis for disapproving the PTIR recommendations.
When the defense got a copy of the PTA early this month, it, however, raised doubts on the veracity of the 171-page document since it did not indicate if Esperon approved it or not, as it only bore the signature of Davila.
In an interview, Davila, who was in attendance in last Friday’s hearing, explained to reporters that Esperon is not obliged to sign the PTA document as having been approved or not because he only has to manifest it in a separate memorandum.
Also, Davila said, the chief of staff is not compelled to approve the PTIR as a whole because he also does his own assessment of the evidence at hand.
But Chavez said Esperon’s memorandum only proves the existence of the PTIR and the PTA. It does not mention the basis for his final decision in charging the 28 accused, not does it prove the veracity of the copy of the PTA that the defense lawyers obtained.
To clear things up, Chavez and the other defense lawyers said Esperon should appear before the panel and answer all their pre-judicial questions.
“We want to put him on the witness stand to find out his legal and factual basis for reversing the PTIR recommendations. Did he exercise his authority arbitrarily, oppressively, abusively?... If the order of the Chief of Staff is baseless and clearly oppressive to the soldiers in this case, then it is unlawful,” Chavez said during the proceedings.
“Esperon should be here. We will grill him with pleasure. We will cross-examine him,” he added.
But the prosecution objected, saying that Davila was enough to authenticate the copy of the PTA that each defense lawyer has.
However, when Davila started talking upon the order of the GCM panel president, Lt. Gen. Alexander Yano, the defense stopped him, saying the panel has no authority yet to swear any witness under oath because it itself has yet to be formally and officially sworn in. In the end, Davila was not able to explain.
The questionable veracity of the copy of the PTA that the defense lawyers received was just one of the reasons they raised in calling for a postponement again of the proceedings last Friday.
The first reason cited was the absence of four accused, namely Marine Lt. Col. January Caringal; Marine Col. Armando Bañez, Marine 1Lt. Belinda Ferrer, and Army 1Lt. Ervin Divinagracia, due to different types of illness.
The defense lawyers argued that each of the accused has the right to be physically present in whatever stage of their case.
But Loy said: “We believe that none of their (those absent) rights is prejudiced because we are still in the challenging portion, not the reading of charges and specifications.”
The process before the arraignment, according to Loy, is each accused could challenge the members of the seven-man panel, led by Lt. Gen. Alexander Yano. If there is no challenge, the members can take their oath as members of the court. The reading of the charges and specification to each accused will then take place.
When Yano denied the motion, another defense lawyer made the same motion, but cited a different ground – eight of the 24 present accused have no private counsels. But Loy said the court can assign to them the military defense lawyers, namely Col. Antonio Doronila and Maj. Basilio Pooten.
The defense asserted the accused have a right to a counsel of his/her own choice.
Yano ruled that those who are not present can be given their chance to challenge the court members in future hearings, and those who have no lawyers that time can be represented for the meantime by the military defense lawyers.
He then ordered that the challenging portion proceed.
Again, the defense moved for a cancellation, citing this time “the lack of material time” since it was already almost 12 o’ clock noon, and it was the “Feast of the Solemnity of the Sacred Heart of Jesus.”
“The spirit is willing but the body is weak,” said defense lawyer Abraham Espejo, counsel for Lt. Col. Nestor Flordeliza, Lt. Col. Edmundo Malabanjot and 1Lt. Richiemel Caballes, all of the Philippine Army.
Again, Yano denied the motion and said the challenge will proceed.
This prompted almost all defense lawyers to walk out of the hearing hall at around 12:40 pm last Friday, leaving behind four of their colleagues and the two military defense counsels.
Before leaving, Espejo said: “We have no food. We were not told that this will be a whole day hearing. Is this going to be a railroad?”
Atty. Trixie Angeles, lawyer for Army Capt. Ruben Guinolbay, appealed Yano’s decision, saying it is not an unreasonable request for the trial to be held when all accused are present altogether.
But the panel stood by its initial decision, saying there was never a complete attendance among the accused in any of the six hearings held, including last Friday’s, since it began in December 2006.
Another appeal by Angeles was denied by the panel, and ordered for a one-hour lunch break before the challenging will take place.
After the break, Pooten asked the court again to “reset” the hearing since he claimed that he failed to get the full trust and confidence of the accused during his brief talk with them.
“All of them or most of them would like to cooperate. But they can’t express fully their feelings to me. They really prefer their counsels of choice. So I found it futile on my part if they can’t appropriately share with me their feelings. In the interest of justice, may I move for a continuance so their counsels of choice can be there to assist them,” Pooten told the panel.
But Yano denied the motion.
Just when he was about to order again for the commencement of the challenging portion, Angeles asked again for the continuance, questioning the procedure taken by the military prosecution as regards a motion filed by the defense for the dismissal of the case.
Loy had admitted that he forwarded the motion to Esperon for action. Esperon, according to Loy, denied the motion.
Angeles said the action of the military prosecution put the panel in a bad light because it apparently makes it subservient to Esperon, and not an independent body.
As a result, Yano admonished Loy and reminded him to course to the court all future motions. But still, the panel denied Angeles’ motion for continuance.
This finally paved the way for the panel to ask each of the accused present of their challenges to each court member, to the dismay of the accused.
While 22 of the 24 present accused said they are not exercising their right to challenge nor are they waiving it due to absence of counsel of their own choice and the unresolved PTA report issue, the panel deemed the remaining two accused (Guinolbay and Marine Col. Orlando de Leon) to have waived their rights since they were well represented by their private lawyers that time.
Loy would have pushed for the court members to proceed to take their oaths after the challenging portion, but Angeles objected, saying it would be “superfluous since the other accused still have to exercise their right to challenge.”
Yano favored the defense this time, and reset the next hearing, the seventh for that matter, on July 6th, despite Angeles’ pleading that it be held in August instead due to some other schedule.
“Just make your self available on July 6th,” Yano told Angeles.
Last Friday’s hearing was the first time that the proceedings lasted past lunch time. In previous hearings, the activity would be over before noon after the panel favors the defense’ motion for continuance due to prejudicial issues.
Asked why he thinks the defense is delaying the proceedings, Loy told reporters: “Probably, they really want a new administration to take over the government. They said in the hearing that the winds of change are blowing, so they are probably warning the court that maybe, (with a new administration), they will be released from confinement or the charges against them will be withdrawn.”
Loy said he is able to draw this personal opinion based on the current developments like the victory of resigned Navy Lt. Senior Grade Antonio Trillanes IV, a rebel officer, in the Senatorial race, and the impending rule of the opposition in the forthcoming Senate.
Although he is not quite convinced of this theory because President Gloria Macapagal-Arroyo will still stay in power until 2010.
Loy said what is more likely is the accused may be running after the prescription of the case.
Under the prescription rule, the case against military men in a military tribunal may be dismissed if they are not yet arraigned two years since the commission of the offense.
“Probably, they are looking at the prescription of the case because that will be favorable to them,” Loy said, noting that the commission of the crime will mark its second year on February 24, 2008, or about eight months from now.
But the accused themselves denied the allegation that they want the case delayed as they point out that they are languishing in jail.
“We are detained. I think we can still endure the suffering if only to get a fair and Constitutional trial, than allowing our case to be railroaded,” said Army Maj. Jose Leomar Doctolero when he addressed the panel during the challenging portion.
The accused and their lawyers have repeatedly expressed fears that they will be tried to be convicted and punished, and not to bring out justice.
“We have fears that this tribunal is being pressured to railroad and fastrack this proceedings,” Espejo had said in Friday’s hearing.
But this was denied by Loy./DMS
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