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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

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Location: San Juan, Metro Manila, Philippines

Wednesday, November 09, 2005

Bwisit Na Forces Agreement

Anyone who reads the Visiting Forces Agreement especially the provisions on Criminal Jurisdiction (Article V, Section 6) will critically conclude that the Philippine panel negotiating the agreement were not composed of litigation lawyers and were not cognizant of the pragmatic realities of the Philippine judicial system.

Under the Article V (Criminal Jurisdiction), Section 6, a criminal case must be completed in one year. “If In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph.”

The Filipino negotiators must have been dreaming!

We now have a case of a Filipina raped by 6 US Marines who are here by virtue of the Visiting Forces Agreement. We will test whether the US Marines can be convicted or acquitted within a period of one year.

However, a theoretical review of the Rules of Criminal Procedure which will govern the Subic rape case seems to suggest that the one year period is a sure-fire formula for the extrication of the offending Marines from our shores.

In the Preliminary Investigation (Rule 112) level, where the fiscal or the public prosecutor shall determine whether there are sufficient grounds to believe that a crime has been committed, the entire procedure from the filing of the complaint to the resolution of the chief city prosecutor would take approximately sixty (60) days.

Fifteen (15) days from receipt of a Resolution indicting the marines for rape, the defense lawyers will file an appeal, by way of a Petition for Review, before the Department of Justice. In turn, the Secretary of Justice is required to render a resolution within 60 days from receipt of the Petition for Review either dismissing or upholding the resolution.

Simultaneous with the filing of an appeal, an Information for Rape is filed before the court. The judge will issue a Warrant of Arrest within 10 days from receipt of the Information for Rape. However, if the judge is not convinced that a rape ensued given the evidence presented by the prosecution, it shall order the reception of additional evidence and he has 30 days to decide whether the evidences can justify the existence of probable cause.

To evade arrest, the Marines will put up bail. After putting up bail, the court will proceed to arraign the Marines. In turn, the defense lawyers will file a Motion to Suspend the Arraignment on the ground that a Petition for Review has been filed before the Department of Justice. Under Rule 116, Section 11(c), the court is procedurally estopped from arraigning the accused for 60 days.

This 60 days is the accommodation period given by the judicial department to the executive department, particularly, the Department of Justice to resolve the appeal filed by the defense lawyers. If no resolution is rendered within 60 days, the case automatically proceeds to arraignment.

Notwithstanding the mandatory period of 60 days to resolve the appeal, the DOJ rarely meets the deadline. As a result, before arraignment ensues, the defense lawyers will again ask for a continuous suspension of the arraignment on the ground that appeal is still pending before the DOJ. A judge may grant the suspension but given the publicity of the case, the judge will most likely deny the motion to suspend arraignment.

The next step the defense lawyers will do to delay the arraignment is to file a Motion to Quash the Information under Rule 117. There is no fixed period within which a judge will rule on the Motion.

However, before the judge can rule on the Motion to Quash, the prosecution is normally given a period of 10 to 15 days to oppose the motion and the defense is given the same number of days to file a Comment to the Opposition. A safe bet is the judge will render a resolution on the Motion to Quash within a period of 15 to 30 days, which is pretty swift under our jurisdiction.

If the motion is denied, a Motion for Reconsideration can be filed by the defense lawyers who may take the same number of days, perhaps 30 days from the filing of the motion for reconsideration until the judge rules on it. At this point, 255 days have already elapsed. (60 [Preliminary Investigation] + 15 [period of appeal to DOJ] + 60 [Period for DOJ to resolve appeal] + 30 [Motion To Quash] + 30 [Motion for Reconsideration])

The defense lawyers can file a Petition for Certiorari before the Court of Appeals alleging grave abuse of discretion. They can also pray for an issuance of a Temporary Restraining Order & Preliminary Injunction on the ground of grave and irreparable damage. If the Court of Appeals grants the TRO (which is highly unlikely but not entirely remote), the case will be suspended for a period of 60 days. If no Injunction is issued, the case proceeds to arraignment notwithstanding the pendency of a Petition for Certiorari before the appellate court.

At this time, the case has already taken 315 days and the US Marines have yet to be arraigned. Assuming they are arraigned, the court will set the case for pre-trial within 30 days (Rule 110). 345 days have already elapsed. After pre-trial, the case will finally be set for trial within 30 days from receipt of the pre-trial order (Rule 119). 345 days plus another 30 days gives you 375 days or more than a year. Under the Visiting Forces Agreement, having gone beyond 365 days, they are off the hook at this point.

Even assuming no TRO is issued by the Court of Appeals, the total elapsed number of days is, as previously mentioned, 255 days. After arraignment, the court sets the case for pre-trial within 30 days. Then the court sets the case for trial within 30 days from pre-trial. One has already exhausted 315 days and the court has a remaining 50 days left to hear the case, present all the witnesses for both the prosecution and the defense and render judgment. But that is not the end of the legal tactics of the defense lawyers.

After the prosecution shall have rested their case, the defense lawyers, even before presenting their own witnesses, will file a Motion for Demurrer to Evidence which essentially asks the court to dismiss the case based on insufficiency of evidence (Rule 119, Section 23). Again, this alone will entail a minimum period of 30 days. By then, the one-year period shall have been exceeded and the damn Yankees shall have been flown back to the United States unscathed.

These periods do not even reckon the dilatory tactics that may be ordinarily employed by defense lawyers, or the heavy case load of the judges, or the sudden sickness of either parties or the absence of witness ad nauseaum.

All in all, the one-year period is really a “Get-Out-Of-Jail” ticket for the marauding US Marines. And you have our idealistic, buffoonish negotiators and lawyers to thank for.

Might as well be the 52nd State of the USA to erase all pretenses to Filipinos' primary exercise of jurisdiction over the American soldiers. Would make Prof. Jose Abueva and his federalist cabal leaping with joy.

Hogwash!

8 Comments:

Blogger NJbabe said...

I hope you get this ....as I said earlier....O hayan this is a free consultation to the "S..." representative and lawyers(?) of the victim. Eh kung yoong presidency is still up in the air, what more with this American GI's....Should we still continue to cry for Justice??....Is it too much to ask for competent people to do their job and research beforehand?

10:16 AM  
Blogger marvin said...

Kung mangyari yang one-year proceedings na yan, that will be the fastest rape case we are going to have, and that useless Speedy Trial Act will finally operate. Really, the burden of ensuring that the deadline is met is on the judge. I can't believe it would take the VFA for our courts to finally set a world standard of judicial efficiency.

11:45 AM  
Anonymous dawin said...

Marvin,

Very perceptive yun comment mo. That will be the fastest indeed. Eh, yun kay Jalosjos, umabot pa ng syam syam rin.

12:21 PM  
Blogger Rizalist said...

We are the only country in the world where it seems rape is an international political crime. I find that strange even as I hope the bastards hang, or better yet, acquire boyfriends in Bilibid.

1:30 PM  
Blogger Punzi said...

I agree. Makulong lang yang mga yan kahit isang araw, kahit sa precinto lang, bawi na...

8:41 PM  
Blogger gari said...

Hope lightning strikes them and kill them fast.

How I wish we all knew that magic or summoning spells.

I am even afraid that the Philippine government will waive its jurisdiction over these American.

11:15 PM  
Blogger Hawkeye said...

Let's face it, the VFA was embraced by our government because it don't the guts to go against the will of the Yankees. That's the reason why its provisions are pro-American.

Unless, by miracle, this government will be blessed with courage like that of Bonifacio, these 6 Damn Yankees will go home unscathed.

4:06 PM  
Blogger Den Salvacion said...

I think, there must be a total transformation of our judicial system. There lies the problem really. It's not US's fault that our system is very slow. Weighing the disadvantes from the advantages were getting from the agreement. The latter weighs more.

Whether we admit it or not, we need that VFA. Our soldiers need the training, the advance equipments, high-speed vessels et.al. We lack of those things.

6:18 PM  

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