“To support a choice of detention facility – as with any other decision in life – there must be validated, adequate, relevant, and objective data. To invoke demons and ghosts from the past, real or imaginary, to avoid the Spartan conditions, rigors and limitations of an ordinary civilian jail – and get away with it with impunity – is to thumb one’s nose against the justice system.” – National Union of Peoples Lawyers, in a motion for Palparan’s transfer
By JANESS ANN J. ELLAO
MANILA – The families of the two disappeared University of the Philippines students are urging the Bulacan court to transfer retired Maj. Gen. Jovito Palparan to a civilian detention facility.
“Why, for heaven’s sake, in all places his old stomping grounds the headquarters of the Army?” said the motion filed Sept. 25 by the National Union of Peoples Lawyers (NUPL) representing Erlinda Cadapan and Concepcion Empeño, the mothers of Sherlyn and Karen, respectively.
“What credible assurance and verifiable means does the state and the private complainants have that indeed accused Palparan will not be given special treatment, ‘babysat’, if you wish, away from public sight when nobody is looking?”
The families said the transfer of Palparan to the Philippine Army Custodial Center (PACC) “cannot be recognized as good precedent” and has been criticized and protested by victims, human rights advocates and various sectors in the country and even abroad.
“It is wrong. It is a bad example. It sends a very outrageous message and gives an outstandingly ugly perception of our justice system. Under the facts and circumstances, it is simply unfair and unacceptable,” they said.
Judge Teodora Gonzales, during Palparan’s arraignment on Aug. 18, said the retired general could not be sent to a military jail as he is already retired and considered a civilian, unlike his co-accused Col. Felipe Anotado and Staff Sgt. Edgardo Osorio.
On Sept. 15, however, Gonzales granted Palparan’s motion to be transferred to the Philippine Army Custodial Center in Taguig City. She cited that her decision aims to end the anxiety of the public on the threats on Palparan’s life.
She said the Bulacan Provincial Jail is “so open to the public” and that “there are many ways to get inside” it, unlike other detention facilities. His presence also endangers other detainees and those working in nearby government and private offices, she added.
Families of the victims and human rights defenders, however, criticized his transfer as merely “coming home” and is tantamount to special treatment.
Palparan was arrested in the wee hours of Aug. 12 in a house in Sta. Mesa, Manila due to a standing three-year-old warrant in relation to the enforced disappearance of Karen Empeño and Sherlyn Cadapan.
The two students of the University of the Philippines, along with farmer Manuel Merino, were disappeared on Aug. 26, 2006 in Hagonoy, Bulacan.
Bulatlat.com was furnished a copy of the motion filed before the Malolos Regional Trial Court Branch 14.
In the motion, the families of the victims said the Bureau of Jail Management and Penology is the most feasible detention center to commit the retired general.
The BJMP, they said, has principal authority in its field as it supervises all city and municipal jails to ensure its security and sanitation in detaining “any fugitive from justice” or any person awaiting investigation, trial or conviction.
The motion argued that the BJMP has institutionalized policies in handling high profile and high-risk prisoners that they have, in fact, issued its “Manual on the Handling of High-Risk and High-Profile Inmates.”
It is for such purpose, the families said, that the BJMP has built several facilities in Camp Bagong Diwa of the Philippine National Police in Taguig City. It has a four-storey Security Intensive Care Area (SICA) that “caters to high-profile and high-risk prisoners including those whose cases are being heard in different courts all over the country.”
Palparan, they said, is both “high-profile” and “high-risk” prisoner.
“Detention under the BJMP fulfills and balances the compelling interests in issue,” the motion stated, “At first blush, there are no competing interests for all parties – accused must be presented before the Court whenever required, and secured for all times in between. It is routinary that the security of accused Palparan, as for any other detainee, must be ensured by the Court for him to stand trial.”
Apart from the BJMP, private complainants also urged the court to look into other civilian jails such as the Quezon City Jail Annex or the Manila City Jail.
In the motion, the families said the detention of Palparan in a military facility effectively tests the Constitution, which stipulates that “civilian authority is, at all times, supreme over the military.”
The victims’ families also deplored the seeming “grand scheme of things” where state security forces made it appear that a military detention center was “simply the disputable last resort in the end.”
In their motion, they cited how the Bulacan Provincial Jail, a few weeks after saying they can secure Palparan, made a turnabout and testified to the contrary. The same, they added, applies to the PNP Custodial Center in Camp Crame when it refused to take in Palparan.
“Interestingly, the military has been in earnest attendance from the first day accused Palparan was presented in court. The unsolicited omnipresence of an Army official on August 18, as well as the Philippine Army’s unqualified, unconditional undertaking of the Intelligence and Security Group (ISG) of the Philippine Army in its Comment dated September 3, are sparkling badges of their inordinate obsession to take custody of ‘one of their own’,” the motion read.
Palparan’s transfer, said the families, catered to his pleasure and granted him some kind of perverse satisfaction.
“He was pictured as suppressing a guffaw on his way ‘home,’ gloating perhaps that he got his way after all and everybody else had been had in an apparent premeditated script that was writ large,” the motion read.
Not entitled to military custody
The motion further stated that Palparan is not entitled to military custody. It said that military detention facilities are required by the military justice system, exist with consideration for military law, and are “under the direction and orders of courts martial organized by the AFP.”
An accused can only be covered by the jurisdiction of military courts if two factors are present: the offense is covered by the Articles of War and, secondly, that the person charged is in active military service and is subject to military law.
Citing Republic Act No. 7055, the victims’ families said that active members of the military who are charged for offenses stipulated in the Revised Penal Code and other special penal laws or ordinances would be tried before a civil court.
Palparan is retired from active service and is charged with kidnapping with serious illegal detention under the Revised Penal Code, which is not covered by the Articles of War.
“Considered a civilian charged under civilian law, it cannot be made plainer that allowing Accused Palparan to stay in military detention is a treatment special if not extraordinary from that of others falling in the same classification,” the motion said.
The Intelligence Security Group of the Philippine Army, in its comment submitted to the court, did not make any stipulation on the requirements for providing military custody, and only said that it was ready to take custody of Palparan if the Court deems necessary and a pronouncement that they will not “give special treatment whatsoever.”
‘Threats are speculative’
The victims’ families argued that the threats to Palparan’s life, which was among the reasons cited for his transfer to a military detention facility, have not been substantiated and remains “speculative and self-serving at worst, and exaggerated at best.”
During the Sept. 15 hearing, both Col. Pepito Flamenco, warden of the Bulacan Provincial Jail, and Sr. Supt. Ferdinand Divina, acting chief of the Bulacan police, admitted that the threats to Palparan’s life are, indeed, “speculative.”
“To support a choice of detention facility – as with any other decision in life – there must be validated, adequate, relevant, and objective data. To invoke demons and ghosts from the past, real or imaginary, to avoid the Spartan conditions, rigors and limitations of an ordinary civilian jail – and get away with it with impunity – is to thumb one’s nose against the justice system,” the motion added.