Thursday, June 21, 2007

A Jury of Eleven Million of His Peers

ESPERON ASKS THE COURT TO RULE ON TRILLANES CUSTODY

Armed Forces Chief of Staff Hermogenes Esperon is in a quandary over the issue of custody for the newly elected Senator Antonio Trillanes, who is charged with coup d'etat along with 30 other Magdalo officers before a Makati Regional Trial Court of Judge Oscar Pimentel. They are also being subjected to a "general court martial" for their roles in the July 27 Oakwood Mutiny--FOUR YEARS AGO IN 2003.

Now it may not seem that long ago, compared to the epic plunders for example of Ferdinand and Imelda Marcos, or even the six year Mental Conundrum of the Erap Case. But I think the case of Senator Antonio Trillanes is very different than either of these. For here is a case that could have easily lain in the eternal slumber of the Justice System Ooze and forgotten like the rest. Perhaps in this case Justice itself will not be denied by virtue of the habitual delay because something happened: the 2007 Midterm elections.

In these elections, the phenomenon of Senator Sonny Trillanes will more likely overshadow every other story of the election for both its short term and long term implications. His election is actually most emblematic of the indirect referendum hypothesis first proposed by Christian Monsod and One Voice long before the elections. It appears to be a signal that the people want PGMA properly impeached and convicted, since Sen. Trillanes made that a campaign position and promise. But the most significant implications are really for the Magdalo cases and the whole problem we have with the Philippine Military.

The people don't appear to believe the Oakwood Mutiny was an attempt to seize power in a coup d'etat and they want its leader, Sonny Trillanes to tell the true story of Oakwood in the Senate and to legislate the reforms that will prevent it in the future. I personally think the Oakwood Mutiny of July 2003 was the desperate act of desperate men trying to escape from the deadly consequences of a betrayal of trust by their own Commander in Chief to whom they had blown the whistle on the systemic graft and corruption in the AFP that has prevented it from becoming a proud and professional and effective fighting force against the various insurgencies, rebellions and terrorist jihads plaguing the land.

The authorities have had ample time to resolve these cases now getting long in the tooth. They cannot offer up the excuse that these detained military officers are rich and powerful Joseph Estrada and can delay their own trials because they also like staying under arrest. The Magdalo have been under military arrest and detention for significant fractions of their young lives and hitherto brilliant and brave careers as men-at-arms.

I think that there is a widespread sense that injustice is being done to these bemedalled soldiers and explains the election of Trillanes as a Senator.

Which is why it would be better for Gen. Esperson and the Palace to read clearly the lips of the people. The elections have overtaken non-events in the adjudication process that only serves the accusers, who were once accused by the defendants of rank graft and corruption.

Eleven million votes cannot be outweighed, however. Elections may be the antidote to the inexplicable delay in Justice--that it may not be denied--for has not a jury of eleven million of their peers adjudged Trillanes et al not guilty of coup d'etat? Or at least deserving of discharging the solemn duties as their duly elected representative in the august halls of the Senate, and not the Marine Brig?

He has not been convicted of any crime and neither Makati RTC nor the reported Court Martial seems to be making much headway proving the absurdity that the most valorous of the Philippine Military--its best and brightest bemedalled fighters--once tried to seize state power by capturing one floor of a luxury hotel building in Makati City. Not a single shot was fired, nor anyone hurt, as the dastardly plot of the Oakwood Mutineers seems to have been a hastily called Press Conference at the hotel lobby. It's just about as silly as the Davide Court absolving Davide of coup d'etata and declaring that Joseph Estrada voluntarily resigned and gave up Presidential immunity just four days after he was assured of acquittal at his impeachment trial. (Now there's a guy who regrets not running in 2007! For it reveals his real faithlessness in the Filipino people.)

3 comments:

jaius said...

11 million voters do not have the right to absolve Trillanes of the crime imputed against him. That is a duty that properly pertains to the courts. That is, of course, if we are a "government of laws" instead of a "government of men".

If not for the obvious overreaching of the administration to include Sen. Honasan in the coup d'etat charges, the Oakwood blokes should have been facing mutiny/sedition charges under the Articles of War before a court-martial instead of shaky coup d'etat charge in a civil court. The funny thing about these military types is that they secretly abhor and ridicule everything that the civil government stands for, including the civil courts, yet would rather stand before a civil court rather than a court composed of their peers which is a court martial.

The AFP can still argue their jurisdiction over Trillanes if only they would exert effort to do so. One possible way is to explore the conflict between Section 16 of PD 1638 and Section 66 of the Omnibus Election Code. The former states that a commissioned officer may resign his commission but will only be separated from the service upon approval of such resignation by the President. The latter, on the other hand, says that AFP officers, like other appointive officials of the government, are considered resigned from their office upon filing of the certificate of candidacy.

Section 16 of PD 1638 is consistent with the traditional concept of an officer's commission. You cannot go out of the military just by your own initiative. This was ignored by the Omnibus Election Code which through Section 66 says that the officer's commission can now be disregarded just by filing a certificate of candidacy. It is important to note that the Omnibus Election Code did not expressly repeal PD 1638.

Depending of how one will apply the various rules of statutory construction to this apparent conflict of law, he may conclude that Trillanes remains an active military officer despite his "resignation". Thus, constitutionally prohibited from being elected into office and remains under military jurisdiction.

Judging by the way Esperon answers questions regarding legal matters (e.g., saying that he will invoke EO 464 in case hailed to the Senate when the provisions of said EO that can shield him from congressional inquiry has already been deemed void by the SC), his quandary appears to be a result of the dearth of intelligent legal advice available to him.

DJB Rizalist said...

Jaius,
Thanks for a very thoughtful comment, and indeed, I grant your points about the conflict between Omnibus Election Code and that PD.

"Constructive non-resignation" applies to Trillanes? I guess he would argue that when the Comelec accepted his certificate of candidacy, that effectively gave him as a miitary officer "leave" to run in the elections, from which I must remind you, all power and sovereignty flows. Elections are the source of the spring of power from which all government drinks.

Also, the AFP COS Esperon claims that as far as he is concerned Trillanes DID resign his military commission and has wisely accepted civilian supremacy. At least at the level of courts.

Think Trillanes will attend Senate sessions?

jaius said...

The Constitution forbids active military officers from exercising partisan political activity directly or indirectly, except to vote. The question then of Trillanes' qualification or disqualification depends on where one stands on the conflict of Section 16 PD 1638 and Section 66 of the Omnibus Election Code.

Is he still a military officer or already a civilian? It seems moot given the position of the administration and the AFP. They've practically given up. However, they must challenge it, if only for the purpose of forestalling another "Oakwood".

If he is still a military officer under the law, even his election by the people cannot override the constitutional prohibition. I wonder if he is still receiving pay and allowances as a military officer since the mutiny up to now.

Mind you, the certificate of candidacy issued by the Comelec is not the be-all, end-all of a candidate's qualification. If it were, there should be no disqualification cases piling up very high in the Comelec and the courts even after the proclamation of candidates.

Charging the Oakwood mutineers with coup d'etat as a huge tactical blunder for the government legal team. If only they charged them with mutiny and sedition under the Articles of War, there would be no question whether these soldiers were merely exercising their right of free speech or whether there was violence. The fact is, they mutinied and were demanding the resignation of the President and the top brass of the AFP. There would be no need to ascertain whether the Oakwood hotel is a facility needed for the exercise and continued possession of power.

These officers calibrated their actions precisely on the gaps and crevices of the law on coup d'etat. The government fell on the trap.

The question of Trillanes attending Senate sessions is up to the court. Judge Pimentel said that he will need at least a month to rule on the question on the custody of Trillanes. However, I doubt that Judge Pimentel would grant him bail based on the conclusion that the case is weak. The mere fact that Judge Pimentel deemed the case to have probable cause and that Trillanes was in Oakwood talking and talking(unlike Honasan which was only there during the so-called negotiation), negates such conclusion.

However, I have the knack of always being wrong. As the Mafia and unscrupulous businessmen are wont to say, everything is negotiable. There is always an offer that one cannot refuse.