FAILURE TO SERVE WARRANT ON US SOLDIERS WILL DELAY TRIAL

The failure to serve the warrant of arrest on the four US servicemen will not hasten the resolution of the rape case filed against them, nor will the rejection by the US government of the request for custody imply that the accused have ‘surrendered’ to the jurisdiction of the court, as claimed by Judge Renato Dilag. In fact, the rejection means essentially the contrary—that the court has no jurisdiction over the person of the accused thereby practically delaying the trial. Under Philippine criminal laws, local courts can only try a case if they have jurisdiction over the offense charged and the person of the accused. Unless the accused is arrested or surrenders to the court, no court can try the rape case for failure to have jurisdiction over the accused. Trial in absentia is prohibited in the Philippines before the accused is arraigned. Should the accused fail or refuse to appear before the Olongapo RTC, the criminal case in fact, cannot prosper.
Furthermore, under Rule 116, Section 1 (g) of the Revised Rules of Criminal Procedure, ‘the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.” Due to the failure to arrest the accused and the pendency of multiple motions filed by the accused, it is possible that the mere arraignment of the accused cannot be conducted for weeks.

Considering that the VFA, which is given inordinate respect by the Philippine government, provides for a 1-year period within which to resolve the case, any delay in the trial is favorable to the US servicemen as they will be free to leave the country after that period. It is therefore imperative, based on Rule 116 Sec. 1 (g) that the one-year period should also not include the period necessary to resolve dilatory and multiple motions filed by US servicemen.

The Department of Justice, tasked with serving the arrest warrant against the accused US servicemen, should have officially served the warrant to the accused despite the note verbale. It is incorrect for Chief State Prosecutor Jovencito Zuno to conclude in his report faxed to Judge Renato Dilag that he did not serve the warrant due to the note verbale of the US embassy. The note verbale was a reply to a request by the DFA for the custody of the accused, and not as a result of the service of the warrant.
Rule 113, Sec. 3 of the Revised Rules of Criminal Procedure provides for the “duty” of the authorities to execute the warrant. Section 4 of the same rule provides that ‘The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten days from its receipt…” Prosecutor Zuno should have executed the warrant based on his duty under the Rules of Court rather based on a note from the US embassy. He should serve the warrant immediately or at most, if the accused appears during the arraignment.

Pros. Zuno may even use Sec. 11 of the same Rule which provides that:

Sec. 11. An officer, in order to make an arrest …by virtue of a warrant…may break into any building or enclosure where the person to be arrested is…if he is refused admittance thereto, after announcing his authority and purpose.

The Visiting Forces Agreement cannot trump the rights of the rape victim and the Filipino people and the 1987 Constitution. The Executive and Judge Dilag may have executed the provisions of the VFA faithfully, but they are all guilty of failing to execute the Philippine laws faithfully as required of public officials under our Constitution.

Additional Note: The hearing on EO 464 set by the Supreme Court on February 21, 2004 is a major breakthrough in attempts to break the impasse between the Senate and the Executive Department and avert a possible constitutional crisis. CODAL, being one of the petitioners, will provide the petition all the legal support it can muster. Atty. Neri Javier Colmenares, the Lead Counsel in the Petition is glad that the Supreme Court has allowed him the opportunity to argue before the tribunal, by rejecting the legally untenable position of government to have the petition dismissed. Atty. Colmenares was also lead counsel of petitioners who argued before the Court in the party list petition to disqualify MAD and major political parties in 2001.

The unconstitutional EO 464 has allowed AFP officers and other executive officials to escape scrutiny for their acts during the 2004 elections. Whether or not EO 464 is declared unconstitutional, CODAL will request the Senate to also look into officials involve in the use of OWWA funds to non-OFW related activities which constitutes at the very least, technical malversation. OWWA funds were used in funding the GMA Philhealth cards in 2004. Pres. Arroyo also approved the release of Three Hundred Million Pesos (P 300 million) to be used in the supposed evacuation of overseas Filipinos in the Middle East through Gen. Roy Cimatu (Ret.). Pres. Arroyo’s written approval through a marginal note on the Memo-Request of Sec. Alberto Romulo, was one of the evidence presented at the Citizens Congress for Truth and Accountability last November. The Senate must call Amb. Cimatu to explain how these funds were spent considering that no evacuations took place. According to information given to CODAL and which CODAL will pursue with COA, the funds have not yet been fully audited by COA despite the lapse of more than one year from the time of disbursement, in violation of government auditing rules.

Reference : Atty. Neri Javier Colmenares (Spokesperson)
Date : January 18, 2006