Saturday, August 21, 2010

Whole Lot of Ugly Part II, the Jabidah Massacare

***CONTINUED FROM PART I***With the Cavite City Fiscal refusing to transfer jurisdiction on the case, General Benjamin Espino moved into damage control mode and assigned Captain Alfredo O.Pantejos to perform a preliminary investigation and make a recommendation as to whether-or-not to pursue a Court Martial. In reality Gen.Espino had no real choice in the matter given the attention paid by President Marcos. It was the President in fact who had first told the General about the incident in a phone call on March 21. In that call he had ordered Espino to empanel a Court Martial and nip the whole affair in the bud, taking a pro-active stance and hoping to negate whatever damage the Opposition might try to do with the incident. After placing 21 men on Corregidor on Confinement to Base, on March 22, Gen.Espino began a quiet investigation into the event itself and all related happenings, but officially did nothing else until the subpoena by the Cavite City Fiscal.

On April 06 Pontejos submitted his findings and recommended all 21 men for Court Martial. That same day Gen.Espino issued Special Order #208, empaneling a General Court Martial for the events taking place on March 18 on Corregidor. Gen.Espino based his Order on an alleged contravention of Articles 94 and 97, of the Articles of War, in the Philippine Military Code. On April 16 Pontejos ammended his initial Report to add 3 more names to the list, for a total of 24 men facing Court Martial, those men were added to the list of subjects relegated to Confinement to Base.

With Captains Magsanoc and Pontejos having gotten nowhere in trying to convince the Cavite City Fiscal to transfer jurisdiction of the case to the military, the AFP moved on April 19 to have the Cavite City case dismissed since a Court Martial had been empaneled. Cavite City contested this move and argued their contention based upon 3 seemingly firm points:

I) Jibin Arula had never taken an Oath of Service and was enrolled in a programme overseen by the Civil Affairs Office, ergo could not strictly be considered as part and parcel of the AFP.

II) Correigdor was not a Military Reservation, i.e. an island entirely within the jurisdiction of the AFP, despite an order to that effect by former President Quirino in 1948. Indeed, former President Magsaysay had declared the island a "National Shrine." Such a designation negates any standing as a Military Reservation, a closed and guarded area, in that it allows civlians to visit at will.

III) Last but not least, Cavite City Court WAS the Court of First Instance (the court where charges were filed first).

This seemingly uncomplicated issue ended up stalling the case for more than a year as it wound its way through the system, all the way to the Supreme Court. In the meantime the Supreme Court issued a Restraining Order against both the Cavite City fiscal AND the AFP with regard to legal proceedings. The AFP argued that while it is true former Pres.Magsaysay DID declare the island a "National Shrine," his declaration did not and could not negate Presidential Proclamation #69 by former President Quirino, issued on May 31, 1948. Former Pres. Magsaysay made his designation via Executive Order #58, on August 16, 1954. Ergo, the AFP pointed out, Pres. Magsaysay made his delcaration some 6 years AFTER former Pres. Quirino made HIS. Again, precendence is the key.

The Supreme Court, which had issued a Restraining Order on both cases, the Court Martial and the civil case in Cavite City, ruled against Cavite City on jurisdiction and did so for a number of reasons. Briefly, former Pres. Magsaysay's designation in 1954 could not have negated former Pres. Quirino's unless it specifically stated that it was doing so. Implied Repeals, that is, assuming one order negates another have not received favourable treatment by the Philippine Courts and this was of course noted by the Supreme Court. For that matter, neither have they received favourable treatment in American Courts and at that time America served as the gold standard for the Philippine Justice System which openly utilised American Case Precedents as touch stones.

The Court pointed out as well that "National Shrines" are usually listed in great detail. In other words, on an island the size of Corregidor, battlefield areas, etc. are usually defined as "Shrines," without offering blanket enshrinement of the entire landmass. To this point the Court pointed out that nothing bars concurrent designation, a site may be a "Shrine" AND a "Reservation," without it having to be either one or the other.

Another interesting point was that Kinley Airfield, where the incident actually took place, was not included in the enshrinement. In other words, even if the Court had accepted the main premise of Cavite City, that enshrinement negates status as a military Reservation, the actual incident did not take place within any portion of the delineated "National Shrine."

Since this incident is truly pivotal to Philippine Insurgency, both the Communist as well as the Islamic, I believe in the near future I will go into great and exacting detail on the criminal proceedings. For the moment however it would be counter-productive as I am merely trying to document the event in this series of entries.

On the issue of "Court of First instance," that is, which court filed criminal charges first and therefore should get jurisdiction to try the case, the Supreme Court pointed out that although Jibin Arula HAD filed charges with the Cavite City Fiscal on April 02, 1968, no warrant of arrest had been issued against anyone. Merely a charge sheet had been entered. With the AFP however, a warrant of arrest was issued on April 06 so that the AFP clearly had precedence in trying the case.

Cavite City then tried a trump card, arguing that the Court should Rule in its favour as a matter of Public Policy, in that the benefit to society outweighs the strict adherance to case law. The Court rejected this out of hand.


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