One does not have to be a lawyer to understand that if there’s is no offense, there is no trial.
As Frank Chavez, counsel for Maj. Gen. Renato Miranda, puts it simply to the panel presiding in the court martial of the 28 officers who allegedly planned to withdraw support from Gloria Arroyo in February 2006, “That’s common sense, Your Honor.”
That’s why it’s difficult to understand why in the hearing last Friday, the prosecution team was insisting on arraigning the officers for violations of number 96 in the Articles of War (Conduct Unbecoming of an Officer and Gentleman), 63 (disrespect to the president), and 65 (willful disobedience of a superior officer) and 96 (conduct unbecoming an officer and a gentleman) which is number 96 in the Articles of War when the law says that those offenses have a prescription period of two years.
Article 38 of the Articles of War, the law that establishes a system of military justice, states clearly that “Except for desertion, murder, or rape committed in time of war, or for mutiny or for war offenses, no person subject to military law shall be liable to be tried or punished by a court martial for any crime or offense committed more than two years before the arraignment of such person.”
Last May 6, the officers were arraigned for “Mutiny”. No problem with that. But “Conduct Unbecoming of an Officer and Gentleman”, belong to what lawyers describe as “lesser offenses” and covered by a two-year prescription period.
Atty. Vicente Verdadero, counsel for Brig. Gen. Danilo Lim, called the attention of the court to a footnote in Manual for s Martial which supports Article 38: “The period of limitation upon trial and punishment by courts-martial is two (2) years from the time the offense was committed…”
Lawyer Alex Avisado, counsel for Capt. Isagani Criste, said all the court has to do is count the time from Feb, 23, 24 and 26, 2006, when the offense was supposed to have been committed up to May, 30, 2008. That’s two years, three months and seven days.
Since no arraignment of the accused took place within two years, the charges are considered dropped. If the charges are dropped, there is no charge. So what’s the arraignment for? Chavez bewailed, ““I don’t understand why we are bamboozled into these proceedings.”
Major Serme Ayuyao of the prosecution panel cited a provision in the Manual of Courts Martial which says that the period of prescription of an offense “shall commence to run from the day on which the crime is discovered by the offended part… and shall be interrupted by the filing of the charge…” This was supported by Senior Trial Judge Advocate Lieutenant Colonel Jose Feliciano Loy citing the same provision by a Manila city ordinance.
Verdadero called the attention of Ayuyao to the footnote on the provision he cited which says, “The period of limitation upon trial and punishment by courts-martial is two (2) years from the time the offense was committed…”
Trixie Angeles (who was allowed to make a legal presentation on the prescription period despite the objection of the prosecution panel) said the Manual for Courts Martial provides the guidelines in implementing the law which is the Articles of War (Commonwealth Act 408). “A procedural law cannot overrule the substantive law,” she said.
Angeles, counsel for Capt. Ruben Guinolbay, said in case of conflict, the court should resolve it in favor of the accused.
But there was one argument by Loy which almost floored everybody. He called it “manifest impediment.” He said the delay was caused by lawyers of the accused by their filing a total of 124 motions.
Loy said the 124 motions are equivalent to one year and four months which should be deducted from the days since February 23, 2006
After the hearing, I tried to ask Loy what’s the formula used for converting 124 motions to one year and four months but he hurriedly left the court room.I asked Maj. Ayuyao and he said only Loy knows the formula.
Will Loy’s magic formula work on the panel? We will know next hearing, on June 17.
I am no expert in military law. However, in criminal cases before civilian courts, the running of the prescriptive period stops when the case is filed in court. This will have to be resolved by the Supreme Court. Yet, I predict that the court martial will rule that the crime has not prescribed for the running of the prescriptive period was stopped by the filing of the case before the court martial.
Assperon’s Kangaroo Court gimmick is hard to sell. Lt. Col. Jose Feliciano Loy may have mastered dagdag-bawas scheme under Virgilio Garcillano. Manila city ordinance has nothing to do with court martial proceedings. Loy’s formula is without a basis. It could be another delaying tactics to demoralize the Tanay Boys.
Bagay na bagay yung “magic formula” ni Loy sa enchanted kingdom ni evil bitch. Everything this kangaroo does is to keep the 28 officers in jail until the evil bitch is gone! Alam ni Loy na walang kaso. It is all delaying tactics.
It is a good thing that most of the incarcerated officers are represented by brilliant lawyers. Baka pa lang maka-score si Loy, supalpal na siya, I heard.
Out of the blue we now have new ‘laws’ implemented by the ‘best’ prosecutors in the country. And these are all tried and tested tactics. They dont need to be brilliant lawyers, just good solvers.
Major Serme Ayuyao of the prosecution panel cited a provision in the Manual of Courts Martial which says that the period of prescription of an offense “shall commence to run from the day on which the crime is discovered by the offended part… and shall be interrupted by the filing of the charge…” This was supported by Senior Trial Judge Advocate Lieutenant Colonel Jose Feliciano Loy citing the same provision by a Manila city ordinance.
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You mean it took them four months to discover the coup? They wouldn’t be in power anymore if it took them that long. Only fabrication, sorry, counting of ballots takes four months.
So when did the government (offended party) discover this “heinous” act of honor? They must allege the date, so we can count from that time. Again, they cannot allege any date, because fraus latet in generalibus – fraud and deceit hide behind generalities.
I did not know that a Manila City ordinance is suppletory to the Rules on Court Martial. Bago yan. He should teach an elective called “Creative Statutory (legal) Construction (interpretation – how a law is construed).
Goddamn where is Macoy when you need him? At least yung mga palusot niya through Titong Mendoza were arguable. This is heinous stupidity.
What is his family name? Loy? Malu-oy ka naman sa reputation mo. Give us a more plausible excuse.
Tactics lang, boss. Jan tayo magaling kumita. Isip-isip na lang siguro ang panguntra. Lets try the fabled toning.
Dito nga sa amin, may mali lang sa investigation, dismiss na ang kaso. No investigation, no indictment, no trial. Golly, iyong 28 na sundalo, hindi lang sumunod sa utos ni Dorobo, kinasuhan na!
Tama talaga si Capt. Faeldon. Bakit nga naman sila susunod sa isang alam naman nilang nandaya sa eleksyon. Ang dapat pa ngang ginagawa ng mga kasama nila ay mag-boycot. At iyong mga mambabatas ng Pilpinas ay dapat na puspusang alamin ang katotohanan by removing any form of immunity that the criminal and her cahoots may invoke to prevent the authorities concerned from investigating them. Simple lang naman ang procedure sa totoo lang. Ayaw lang ngang gawin kasi puro kakutsaba naman ngayon ang nakaupo lalo na doon sa ipinagmamalaki nilang Supreme Court.
Worse, walang tumitinag! Taumbayan naman bibigyan lang ng libreng isang supot na bigas hinahalikan na sa puwit si Dorobo! Yuck!
Si Loy ba ay autistic o nagsisimula nang maging autistic?
Where the heck Loy get those argument – “manifest impediment”? Is he a judge or part of the prosecution? Loy has the same hide as that of Gloria, Davide and Esperon – top rapers of the constitution. The defense should ask where he based his argumentative argument. Truly this trial is a battle between Men of Honor and Men of Disgrace.
I remember my favorite part of the movie “Men of Honor”:
http://www.youtube.com/watch?v=-yiMuXj_ayc&feature=related
‘hope this will inspire the good soldiers and their lawyers.
Caseblue, in courts martial, Art. 38 says that the offense prescribes if two years from the commission (not discovery) of the crime or offense, the accused has not been arraigned. Sec. 69 of the Manual on Courts Martial says that the period is tolled (suspended) by the filing of the charge. However, the same provision has not been implemented since it was placed there in 1938 because precisely the provision contradicts the clear period set by Art. 38, which is a law, as opposed to a mere rule (sec. 69).
During the Magdalo hearings, even Davila himself who was and still is the Trial Judge Advocate, admitted that it is the two year period that will prevail.
What floors me is this, how Loy can claim that the filing of motions constitutes “manifest impediment.” I understnad from the lawyers that “manifest impediment” is a circumstance that places the accused out of the jurisdiction of the court martial. Examples of these are escape, the accused is out of the territorial jurisdiction of the Philippines, the accused is in a civilian jail or the accused is in the hands of the enemy. Filing motions –no matter how frivolous — can in no way compare with those other circumstances.
By the way, “manifest impediment” was cited by Low este Loy because there are only two instances in the Manual on Courts Martial wherein the two year period can be suspensed. These are : absence from the jurisdiction of the Philippines and “manifest impediment” that prevents the accused from being tried in the military courts.
I think that it should also be of concern to us that in cases of prescription, once the period becomes evident — that is, the two year period has passed — it now becomes the obligation of the TJA to inform the accused of their right to have the charges dismissed. It then also becomes the obligation of the panel to sustain the dismissal unless the prosecution can prove any of the exceptions.
Ang nangyayari dito, baligtad. It is the defense that had to raise the issue and it is the defense that seems to be the one proving that the two year period has lapsed! Trabaho ito ng TJA, bakit hindi ginagawa?
You are right, K. It’s the prosecution who should have informed the panel that the minor offenses have prescribed.
The two sides were asked to submit their position paper. I know the panel still takes it’s cue from the top. We’ll know in June 17 the direction that Yano’s term is going. His allowing Gen. Miranda to visit the wife was commendable.
But his revocation of his own order showed that the pressure from the top is strong and he is not strong enough to buck it.
But we continue to pray.
Klingon, either the panel is ignorant of the court martial laws or they simply want to create their own laws. Either or, baka nga naman sila makalusot!
there is no formula here but just magic.
That’s cute,Norpil. no formula, just magic.
124 motions = one year and four months. I have an idea of Loy’s formula. First two digits is 12. That’s one year. Third digit is four. That’s four months.
klingon:
Sa mga ganitong pagkakataon, masarap i-quote ang immortal words ni Justice Sutherland:
“The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose interest, in a criminal prosecution is not that it shall win a case, but that justice shall be done. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Atty:
Saan planeta ba meron niyang ganyang justice? Parang alien sa Pilipinas ang ganyang standard.