By Ronron
February 26, 2008
The supposed dropping on the basis of prescription of some charges against the 28 accused Army and Marine officers over the alleged February 2006 coup plot is not yet certain, a military court president said Monday.
Maj. Gen. Jogy Leo Fojas told Manila Shimbun in a chance interview that the matter of prescription is not automatic, rather it will have to be decided upon by them in the forthcoming hearings.
Defense lawyer Trixie Angeles said all charges, except violation of Articles of War 67 (Mutiny), against the group of Marine Maj. Gen. Renato Miranda and Army Brig. Gen. Danilo Lim should be dropped based on the case prescription rule.
She said that under Articles of War 38, "no person (in the military) shall be brought to trial" if the alleged offense he or she committed has lapsed two years since the commission without being arraigned.
Angeles said that in the next hearing, the defense lawyers will raise the prescription issue in a form of special plea or a demurrer.
The case that need to be dropped, she said, are the violations of 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); 96 (Conduct Unbecoming of an Officer and a Gentleman); and, 97 (Conduct Prejudicial to Good Order and Military Discipline).
"We can say that our clients are not guilty on the basis that the alleged acts itself have already prescribed," Angeles said in a phone interview Monday.
All 28 accused officers are charged with violation of AW 67, which they allegedly conspired to commit on February 23, and AW 96.
However, Lim has an additional charge of violation of AW 63, 65, and 97; Marine Col. Ariel Querubin with AW 65 and 97; and Marine Lt. Col. Achilles Segumalian with AW 97.
These additional charges stemmed from acts allegedly committed on February 24 and 26.
The other accused Marine officers are the following: Col. Orlando de Leon, Col. Januario Caringal, Col. Armando Bañez, Lt. Col. Custodio Parcon, Maj. Francisco Domingo Fernandez, and 1Lt. Belinda Ferrer.
Their other co-accused from the Army are the following: Lt. Col. Nestor Flordeliza, Lt. Col. Edmundo Malabanjot, Maj. Jason Laureano Aquino, Maj. Jose Leomar Doctolero, Capt. James Sababan, Capt. Montano Almodovar, Capt. Joey Fontiveros, Capt. Ruben Guinolbay, Capt. Isagani Criste, Capt. William Upano, Capt. Dante Langkit, Capt. Allan Aurino, Capt. Frederick Sales, 1Lt Ervin Divinagracia, 1Lt. Jacon Cordero, 1Lt. Homer Estolas, 1Lt. Sandro Sereno, and 1Lt. Richiemel Caballes.
Lim's additional charges stemmed from his videotaped statement about his planned withdrawal of support from President Gloria Macapagal-Arroyo, and his defiance from then AFP Chief of Staff Gen. Generoso Senga's order that he order his men to go back to barracks on the eve of February 24 when the power grab plot was to be executed.
Querubin also has additional charges because he was with Lim when the latter talked to Senga and other top military brass on the night of February 23 about their men's plan to join the protest march on the following day on EDSA, which was the 20th anniversary of the 1986 People Power Revolution.
Segumalian, meanwhile, is slapped with an additional charge for figuring in at the standoff at the Marine headquarters in Fort Bonifacio on February 26 after learning that Miranda was unceremoniously relieved as Marine commandant.
Fojas said he expects a heated debate on the prescription issue in the coming hearing because he anticipates the prosecution to counter the Article of War 38 rule by citing a provision that says the prescription period starts from the filing of the charges, and not from the alleged commission of the crime.
"As far as the Articles of War 96 and 97, there are some opposing views, different views regarding their prescription. That is what we are studying, that is what we are trying to confirm. Because there are some who say that there is no prescription," Fojas said.
Fojas said that he himself is not yet certain if the time of reckoning for the prescription of the other cases should be from "the time the offense was committed or from the time the charges were filed," which was in December 2006 after Armed Forces of the Philippines (AFP) chief of staff Gen. Hermogenes Esperon, Jr. ordered the conduct of court martial proceedings against the group of Miranda.
Esperon, for his part, told Manila Shimbun in a separate chance interview Monday that while he believes that the date of reckoning is when the alleged crime was committed, the two-year period may have to be extended "due to manifest interruptions like unreasonable delays" on the part of the accused.
But Angeles said there is no law that backs this claim of Esperon.
She said that if there were delays in the proceedings, it is because the prosecution did not follow the proper procedures such as giving the accused copies of the pre-trial investigation report (PTIR), and the pre-trial advise (PTA).
The accused were only able to get copies of the PTIR in April last year even if it was already available in October of 2006.
The PTIR, which recommended for the dropping of charges against most of the accused including Mutiny, is supposed to be a basis of Esperon in deciding whether or not the 28 accused will proceed to court martial proceedings.
It was subjected to review by Esperon's Senior Judge Advocate (SJA) or legal adviser, Col. Pedro Davila, who later overturned its recommendations. Davila's recommendation was contained in the PTA.
When the defense got a copy of the PTA two months later or in June last year, it 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.
Responding to the defense' queries, Davila explained 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.
"It can't be a delay on the part of the accused, rather an assertion of their rights (to have the PTIR and PTA)," Angeles stressed.
The defense lawyers had surmised that the military prosecution refused initially to furnish the accused copies of the PTIR and PTA out of fear that these could work to their advantage.
Another delaying factor in the arraignment process was the issue of arraigning the accused in batches, which the defense lawyers strongly objected to.
Esperon, nonetheless, is quite confident that the other charges against the accused will not prescribe. "I don't think it will prescribe," he said.
Angeles said if this happens, then they will take up the matter before the Court of Appeals. Although, she sees no reason why the court martial should not rule in the favor of the accused as to the prescription issue. Among the motions of the defense that the panel granted, she said, is the access to the PTIR and the PTA.
If the prescription is approved, on the other hand, Esperon said he has no problem with it "if it is within the rules." "What is important is the rules are followed," the military chief said.
Besides, whether the other cases prescribe or not, Esperon said the full force of the law will still be imposed on the accused.
Fojas said the accused will still be facing the more serious charge of Mutiny in case the other charges are dropped based on prescription.
"The bearing (of the prescription) is only on the number of charges against the accused. There will just be lesser charges against them. The mutiny, which is more difficult, still remains," he said.
He said they will also still be in confinement.
But Angeles said that somehow, if the other charges are dropped based on prescription, this will work for a "greater defense."
"Mutiny has specific elements such as disobedience to military authority. Considering the charge sheet and the alleged acts, and the PTIR, it is clear that there was no mutiny committed by the accused," she said.
While Angeles refused to admit that a prescription of the other charges means a greater chance of the exoneration of the accused with only mutiny left to defend, she said it would have been more difficult to defend the other cases because they are supposed to be "catch-all offenses."
Asked if the panel will entertain a motion of the defense in the next hearing on the prescription issue, Fojas said: "We will cross the bridge when we are there."
But when asked what is the most likely agendum, he said: "We will go for the arraignment next hearing."
He said the panel has yet to decide on the date of the next hearing./DMS
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