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DESPITE
a court order, Armed Forces Chief Gen. Hermogenes
Esperon refuses to disclose the investigation report by
the military’s Provost Marshall in connection with the
disappearance of political activist Jonas Burgos.
In his
36-page petition for certiorari, Esperon through the
Office of the Solicitor General (OSG) asked the Supreme
Court to issue a temporary restraining order (TRO)
enjoining the Court of Appeals (CA) from enforcing its
order dated July 31, 2007, ordering Provost Marshall
Col. Arthur Abadilla to submit his report and make it
part of the prosecution’s evidence in the petition for
habeas corpus filed by Burgos’s mother, Edita, before
the appellate court.
Esperon
insisted that the CA order is invalid as it violates the
constitutional principle of separation of powers.
He said
the classification of the subject investigation report
pursuant to Memorandum Circular 78 involves the
exercise of a purely executive function, thus, it may
not be “judicially declassified” through the subpoena
issued by the CA.
Earlier,
the CA gave the AFP until October 18 to submit the
report on Burgos’s abduction. Burgos’s lawyer Pacifico
Agabin said Esperon and Abadilla should be cited for
contempt of court if they fail to submit the report.
On
September 5 the CA ordered the AFP to produce in court
the report on its probe into the disappearance of the
TAB-194 license plate.
In
ordering the Provost Marshall to disclose the contents
of its investigation report, the CA had denied the
motion to quash the subpoena ad testificandum/duces
tecum issued by the appellate court against Abadilla.
The
appellate court noted that Abadilla failed to
substantiate his assertion that his report is
confidential and cannot be divulged under Memorandum
Circular 78.
The CA
also noted that the OSG failed to show how the
disclosure of the report would endanger national
security or be prejudicial to the interest or prestige
of the nation or any government activity.
In his
petition, though, Esperon said the Provost Marshall’s
classification of his investigation report as
confidential was done pursuant to Memorandum Circular 78
titled “Security of Classified Matter in Government
Departments and Instrumentalities” which was promulgated
in 1964 by then-President Marcos.
Under
the memorandum, a classified matter includes
investigation and document of a personal and
disciplinary nature which are bound to be secured for
administrative purposes and safeguard the identity of
personnel being investigated for an anomaly prior to the
filing of appropriate charges.
“It is
respectfully submitted that the investigation report in
issue cannot be judicially declassified through the
simple expedience of a subpoena. Only the classifying
executive authority can declassify such desired
information/document. A contrary ruling would be
absolutely repugnant to the principle of separation of
powers,” the petitioner said.
The AFP
chief insisted that the memorandum circular has the
force and effect of a law unless judicially declared
invalid or unconstitutional. He said this covers all
government employees in the executive branch.
He
asserted that the petitioner cannot invoke her right to
information under the Constitution since the same is not
absolute and subject to restrictions provided by law.
One of
these limitations, according to Esperon, are classified
information as properly designated by competent
authority, whether or not the information pertains to
national security.
Esperon,
however, suggested that a procedure similar to the
“executive session” of the Senate be adopted by the CA
in inspecting the report.
Esperon
said he is willing to just show the investigation report
to the CA and Burgos’s counsel for their inspection.
Likewise, he insisted that the focus of the
investigation is the possible administrative liability
of the commanding officers for the loss of the license
plate TAB 194 in their custody, which he insists is
irrelevant to the habeas petitions.
The
license plate was seen on the vehicle used in the
abduction of Burgos’ on April 28 in a Quezon City mall.
“There
was no admission whatsoever that his investigation had
anything to do with the involvement of the AFP in Jonas
Joseph Burgos’ alleged enforced disappearance, much less
the legality of Jonas Burgos’s custody . . . . Private
respondent is actually resorting to a fishing expedition
in the guise of a subpoena which is legally
impermissible,” the petitioner said.
Esperon
also claimed that Abadilla may face administrative and
criminal liabilities if he reveals the report without
clearance from his superior under Memorandum Circular
78.
“The
Provost Marshall is not authorized to release his
subject report. To compel him to release the same via
the subject of subpoena will render him administratively
and criminally liable thereby rendering the subpoena
oppressive and unreasonable,” the petitioner added.
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