Posted at www.ellentordesillas.com
November 10, 2008

I think Col. Feliciano Loy’s tantrum near the end of last Friday’s court martial hearing of the mutiny case against Maj. Gen. Renato Miranda and 27 other officers was more panic than anything else as reality dawned on him that what he has is a losing case.

“We believe that the prosecution has been trapped, We will have to withdraw from the pre-trial,” he said eliciting surprise, disgust, anger and amusement from the defense lawyers.

Col. Loy is the head of the prosecution team implementing the order of former AFP chief Hermogenes Esperon to have the 28 officers convicted for allegedly planning to withdraw support from Gloria Arroyo in February 2006 following the revelations in the “Hello Garci” tapes that she cheated in the 2004 elections.

The 28 officers including Brig. Gen. Danilo Lim and two Medal of Valor awardees, Col. Ariel Querubin and Lt. Col. Custodio Parcon, were charged with mutiny despite the recommendation of the panel that investigated the February 2006 non-event to dismiss the charge of mutiny (violation of 67th Articles of War) “for lack of factual and legal basis.”

The officers were also charged with conduct unbecoming of an officer and gentleman (violation of AW 96) and conduct prejudicial to good order and military discipline (AW 97) and disrespect towards the president (AW 63). But these minor charges were dropped when no arraignment was conducted after two years.

Last Friday was the third pre-trial hearing. At 3:30 p.m., Loy reported to the panel that both sides were through with stipulation of facts and the marking of evidence. He declared the end of pre-trial and for them to go to trial proper. He even made a snide remark for the officers who have been in detention for almost three years “to prepare for a long battle.”

Atty. Donald Diaz, counsel for Lt. Col. Parcon and Capt. Aurino, reminded the prosecution the agreement that no additional evidence would be presented or else there would be no end to the “fishing expedition” and that would defeat the purpose of the pre-trial. No objection was raised to that.

When the hearing resumed after a short break, Atty. Rogelio Bagabuyo, counsel for Maj. Gen. Miranda, said that in the interest of speedy trial, he is admitting “hypothetically that all the evidence presented by the prosecution are true.” He said he is filing a demurrer because the evidence presented “are not enough to convict the accused of mutiny beyond reasonable doubt.”

A demurrer is a pleading in effect that even if the facts as alleged by the opposite party are true, they do not sustain the contention based on them.

All the defense lawyers manifested the same pleading. Atty. Vic Verdadero, counsel for Brig. Gen. Danilo Lim, said, “We shall not be using our evidence. We admit that the prosecution’s evidence is true and that they cannot sustain the charge of mutiny.”

The pre-trial investigation report on the Feb. 2006 incident defines mutiny as “concerted insubordination, or concerted opposition, defiance of, or resistance to, lawful military authority by two or more persons subject to such authority, with the intent to usurp, subvert, or override such authority or neutralize it for the time being.”

The pieces of evidence submitted by the prosecution consisted mainly of affidavits of officials who were at the “Gazebo,” a reception area in the residence of the AFP chief of staff in Camp Aguinaldo, the night of Feb. 23, 2006. At that time, it was the residence of the AFP chief Generoso Senga, who is now ambassador to Iran.

They were supposed to be discussing the restlessness of the young officers over the “Hello Garci” expose which validated what they knew that the military was used extensively to cheat in the 2004 elections in favor of Arroyo. There was talk about some officers planning to join the protest rally the next day, the 20th anniversary of the 1986 People Power. The meeting ended with Senga giving the order to “Go back to barracks” which everybody obeyed.

One of the affidavits in the prosecution’s arsenal is that of Esperon, who was then the chief of the Philippine Army.

Loy said the defense team was being “presumptuous” because they have not presented the witnesses themselves.

Atty. Teddy Rigoroso, counsel for Maj. Francisco Domingo Fernandez and Lt. Belinda Ferrer, said since the witnesses are not expected to say anything contrary to what is contained in their affidavits, they would just be wasting time because the defense would just agree to what the witness would say.

Loy asked the court to nullify what transpired in the three pre-trial hearings. That’s when the soft-spoken Bagabuyo, who was a former senior state prosecutor, turned testy. He told Loy that “it is never right for any one to say ‘Yes’ today and say ‘No’ the next day. That is never done.”

Atty. Trixie Angeles, counsel for Maj. Jason Aquino, asked the court to order Loy to “tell the truth” and show cause why he should not be cited for contempt for delaying the trial.

Atty. Gilbert Gallos, counsel for Col. Orlando de Leon, took exception to the allegation of Loy that the “prosecution has been trapped.” He said no one forced the prosecution to submit their evidence. All that the defense was doing was to admit their evidence. “I can’t understand where he is coming from.”

I think I understand. Loy’s statement betrays his own assessment of the weakness of their evidence. What if the court approves the defense’s demurrer? AFP Chief Alexander Yano, in contrast to Esperon who was known to exert pressure on the panel, has always said he will respect the decision of the court.

If the demurrer is approved, the accused officers would be released to go back to the service. Will Arroyo and Esperon allow truth to prevail?

The panel headed by Maj. Gen. Jogy Fojas denied Loy’s motion to nullify the pre-trial proceedings. He gave the defense seven days to submit their demurrer and another seven for the prosecution to comment. Next hearing is on Nov. 28, 2008.