Sunday, April 22, 2007 Army man involved in February 2006 coup high court to stop military trial
A JUNIOR officer of the Philippine Army (PA) who was tagged in the plot to oust President Gloria Macapagal-Arroyo in February last year has filed a petition before the Supreme Court (SC) seeking to stop court martial proceedings against him and to order his release from detention.
Army Major Jason Aquino is detained along with 29 other officers of the Philippine Marines and Philippine Army at Camp Capinpin in Tanay, Rizal, who was being investigated for the alleged plan to withdraw support from Arroyo during a projected mass action at the Edsa Shrine on Feb. 24, 2006.
In his 30-page petition with prayer for issuance of a temporary restraining order (TRO)/writ of preliminary injunction, Aquino, through lawyer Francisco Chavez, asked the SC to enjoin respondents Armed Forces Chief Hermogenes Esperon and the Special General Court Martial Number (SGCM) 2 from further prosecuting him for alleged violation of the Articles of War (AW).
"The proceedings violate petitioner's fundamental right to due process since the accuser, General Esperon, is likewise the reviewing authority of the findings of the SGCM 2," Chavez said.
Aquino's counsel told the high court that the SGCM2 was illegally constituted, being created by the accuser, prosecutor, witness and reviewer himself, Esperon; hence, its proceedings are null and void as they have been conducted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Citing Section 58, Paragraph F of court martial rules, Chavez said "a general or special court martial may be challenged on the ground that it has been illegally constituted at any stage of the trial."
The requisite condition for challenging the court martial was "when such commander is the accuser or the prosecutor of the person or persons to be tried," in which case, the court shall be appointed by a "superior competent authority."
Petitioner pointed out that Esperon himself executed an affidavit, to be used as evidence for the prosecution, showing his personal feeling or interest in the prosecution of the accused.
"This is akin to an RTC judge deciding a case of libel or any other crime allegedly committed against him wife. Verily, the violation of due process in the instant case is so blatant, shameless and patent, that it need no further stress," he said.
Chavez further claimed that the continued prosecution of petitioner and his co-accused for violation of AW 67 (mutiny) cannot legally take place since its very basis, the Pre-Trial Investigation Report (PTIR), exonerated petitioner of the charges.
The only charge sustained by the PTIR was for petitioner's violation of Article 96 (conduct unbecoming an Officer and Gentleman), petitioner said.
"However, per the Oct. 25, 2006 PTIR, there is a clear absence of overt acts which proximately tended to create a certain intended or actual collective insubordination. Such being the case, mere preparation and planning to commit the offense charged do not make out a case of an attempt to create mutiny," petitioner said. (ECV/Sunnex)
