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The Case of TEMOGEN ‘COCOY’ TULAWIE
--------------------------------------------------------------------------People of the Philippines -versusTemogen Tulawie, et. Al. People of the Philippines -versusTemogen Tulawie, et. Al. Criminal Case No. 12-293436-37 For: Violation of Section 3, in relation to Section 3-C of P.D. 1866 as Amended by R.A. 9516. Criminal Case No. 12-293436-37 For: Multiple Frustrated Murder and Multiple Attempted Murder
After a number of letters sent to the Supreme Court by several supporting Non-Government Organizations to follow-up on the Pleading, the prayer to transfer the jurisdiction over Temogen “Cocoy” Tulawie’s (Cocoy for brevity) criminal cases to Davao City was finally granted on December 14, 2011 citing as one of the grounds the threats to Cocoy’s life if the cases pend in Jolo Sulu. However, at about 4:00 am of January 13, 2012, Cocoy was arrested by the authorities and was detained within the premises of Davao City Police Office (DCPO). Consequential to the finality of the decision, and upon receipt by the Executive Judge of Regional Trial Court (RTC) of Davao City of the transmitted Case Folders from RTC of Jolo, Sulu, the case was immediately raffled to Branch 11. It is a rule of law that an accused be detained in the city jail if the court already acquired jurisdiction over the case and of accused’s person. On the hope of being excepted from this principle, the counsels of Cocoy filed a motion praying that the court continue to detain him under the facilities of the DCPO despite the transmittal of the case records for fear of Cocoy’s life. Despite this motion, the presiding judge of Branch 11 decided during the
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March 12, 2012 hearing that the living body of Cocoy be transferred and committed to the Davao Ma-a City Jail citing the ground, among others, that the security there is stricter than in DCPO. The presiding judge further ordered that the Bureau of Jail Management and Protection (BJMP) shall implement a stricter security measures to ensure the protection of Cocoy’s life and that it shall submit periodic reports in relation to this order. Considering Cocoy’s right for a speedy trial, his counsels filed on March 19, 2012 an Urgent Motion to Resolve the Motion to Quash the Information previously filed by Cocoy’s former and officially withdrawn counsel, and set the hearing on March 23, 2012. However, the hearing did not materialize on that date because the counsel of Governor Abdusakur Tan personally appeared and requested from the court ample time to file their Comment on the Motion to Quash. The court granted the request and gave them 15 days, or until April 7, 2012, to file the same. Come the 24th of April 2012, yet still no comment was filed by the other party. Hence, the counsels agreed on filing another Motion praying that the Motion to Quash be decided upon sans the Comment and/or Opposition to it. On the other hand, Governor Abdusakur Tan previously filed on January 25, 2012 a Petition for Review with the Supreme Court to reconsider their decision on transferring the venue of the case from Jolo, Sulu to Davao City. It prayed that if transfer of venue be vital for the speedy disposition of the case, he requested that the case be transferred instead to Metro Manila citing as one of the grounds that Cocoy is allegedly being supported by influential groups here in Davao City. Because the case was already indorsed to the Executive Judge of Davao City, it was he who issued an order on April 10, 2012 requiring Cocoy (and his counsels) to file a Comment thereto. A copy of this order was furnished to the Branch 11 presided by Judge Europa. The comment was filed on time last April 16, 2012. On May 04, 2012, the Branch 11 of the Regional Trial Court of Davao City issued an Order suspending further proceedings on the case in deference to the Supreme Court with whom Abdusakur Tan filed a petition to transfer venue. Other ground for suspension was that Prosecutor Marte Velasco manifested he has not yet been duly authorized by the Department of Justice to appear and handle the case. That being the case, he cannot file any comment or opposition thereto. Thereafter, or on May 09, 2012, the counsels of the accused filed with Branch 11 a Consolidated Motion for Reconsideration on the Order of
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Suspension with an Alternative Prayer for Provisional Dismissal. The motion prayed that the court require the state to designate within 15 days a prosecutor and secure authority from the Department of Justice. In the alternative, failure to comply with the request, it was prayed that the case be provisionally dismissed for failure to prosecute. During the hearing on the said motion on May 25, 2012, the court manifested that since the jurisdiction over the case has been transferred to Branch 11, it is deemed automatic that the Prosecutor assigned in the same branch has the authority to handle the case. Prosecutor Marte Velasco has submitted to this notion. Prosecutor Velasco manifested to the court that he was willing to appear in behalf of the People of the Philippines considering that his Superior Prosecutor Raul Bendigo had already made preliminary inquiry from the Department of Justice whether or not he could appear before the court and the answer was in the affirmative. Also, during that instance, the legal counsels of the accused prayed to the court to continue proceedings despite the Petition filed by Governor Tan. The court, in reply, gave word that it shall effort to communicate with the Supreme Court on Its stand whether to continue or suspend the proceedings. Later on the same day, the court issued an Order submitting the Motion to Quash for resolution considering that an Opposition has already been filed and Prosecutor Velasco has no intention to file any further comments thereto. Prior to the hearing, or on May 18, 2012, the Opposition of the Private Complainant to the Motion to Quash was received. On July 24, 2012, the offices of Atty. Glocelito Jayma, Atty. Raissa Jajurie, and Atty. Mary Ann Arnado received an Order from the court DENYING the MOTION FOR RECONSIDERATION on the MOTION TO QUASH THE INFORMATION filed last 2009. The Order likewise set the arraignment of the accused on August 03, 2012; 8:30am. Thereafter, or on July 25, 2012, the lawyers filed the Application for Bail with the Branch 11. The court set the hearing for the application on the same date and time of the arraignment – August 03, 2012; 8:30am. Come August 3, 2012, after the accused was read of the charges against him and was asked if he understood the same, he pleaded NOT GUILTY. Thereafter, the hearing for the Application for Bail immediately ensued. During the Bail Hearing, the lawyers for the accused, particularly Atty. Raissa Jajurie, clarified the court whether there will be a full presentation of
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evidence by the accused. The court responded that the method of presentation will be done according to the pleasure of the Prosecution. As a response, Atty. Mary Ann Arnado suggested that the presentation of evidence be zeroed in to the masterminding of the explosion and that the hearing be on continuous days. Irked by this suggestion, Prosecutor Marte Velasco raised his point stating that the defense should not control the method of presentation of evidence and should not tell the prosecutors what to do. He further contended that the prosecutors have had fixed method of presentation based on practice and the same should be applied in this case. Atty. Wendell Sotto, who first entered his appearance as the Private Prosecutor, asked for a 2-month preparation for the prosecution. He brought to the attention of the Honorable Court that the witnesses for the hearing will be coming from Jolo, Sulu. However, Judge Europa opposed this idea stating that the court can only allow 30 days for preparation then setting the Bail hearing to September 5, 2012. Immediately, Public Prosecutor Velasco intimidated to the court that the calendar for September 5 and immediate days thereafter are already full. He suggested that if the bail hearing be for a continuous trial, the same should be set on a vacant date. As a result thereof, the Judge set the continuous hearing on September 19, 20 and 21, 2012 without postponements. Both parties were amenable to the date. The prosecution added that they will present two (2) witnesses per day of the 3-day hearing. On September 17, 2012, during the thick of preparations for the supposed bail hearing, the defense lawyers of Cocoy Tulawie received an Order from Branch 11, Regional Trial Court of Davao City, holding in abeyance the hearing due to the filing of the other party a Manifestation and Cancellation of Hearing. They alleged that the Supreme Court already issued a resolution transferring the case from Davao City to the City of Manila. This came to a shock to the lawyers at the same time for Cocoy Tulawie. They called up the Supreme Court to verify the alleged resolution. However, the Deputy Court Administrator denied the existence of such Resolution stating that he does not know that the highest magistrate issued such transfer. At the second call, the DCA then verified that there was in fact a resolution dated August 23, 2012. On September 18, 2012, the defense lawyers filed a Manifestation with the Urgent Motion to Suspend transfer of Records because a Motion for Reconsideration is yet to be filed with the Supreme Court. In response to the motion, Judge Europa, on September 19, 2012, gave the defense until
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September 21, 2012 to file the Motion for Reconsideration. On that date, Mussah Sherian Tulawie flew all the way from Davao City and successfully filed the Motion for Reconsideration with the Supreme Court. The received copy was faxed to Davao City and delivered to Judge Europa on the same date to prove that such motion was indeed filed. As her response, she gave the defense team until September 28, 2012 to obtain from the Supreme Court an order suspending the transfer of the records. The Defense was not able to acquire such order. The Motion for Reconsideration prayed with the Supreme Court to reconsider and set aside their decision to transfer the case to the City of Manila. In the alternative, if such transfer is final and executory, let the bail hearing proceed in Branch 11 of the Regional Trail Court of Davao City. On October 04, 2012, the RTC Branch 11 successfully transferred the case records to the City of Manila via registered air mail. The Office of the Clerk of Court of the City of Manila received the same on October 17, 2012. They set the raffling of the case to November 08, 2012. On November 08, 2012, the raffle was attended by several national human rights organizations such as PAHRA and Balay Rehabilitation Center. In addition, the Asian Human Rights Commission sent a local representative to observe the raffle. Same is true with the European Union Delegation in the Philippines. The case of Cocoy Tulawie was raffled to Branch 19 of RTC Manila City under Judge Marlo A. Magdoza-Malagar and was given a new case number which is 12-293436-37. On November 16, 2012, the Branch 19, through its Clerk or Court, issued a Produce Order addressed to The Prison Officer of the R2 Headquarters of PNP Davao, Regional Intelligence and Investigation Division, directing him to produce the body of Temogen Tulawie before the courts on December 07, 2012; 8:30 am to be present at the Conference. However, the presentation of the body of Cocoy Tulawie did not materialize because the R2 Headquarters of Davao City did not have any custody over him since he was committed to the Davao City Jail since March 2012. Nevertheless, the December 07, 2012 was pushed through without the presence of Cocoy Tulawie. The court set the date for the bail hearing on February 04, 2013. The prosecution have agreed to present 30 witnesses and will produce their Judicial Affidavits and submit the same 5 days before the Bail hearing on February 04, 2013.
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On January 04, 2013, Att. Marlon Manuel of Alternative Law Groups formally became integrated in the defense team as one of the lawyers. On January 10, 2013, he filed an Urgent Motion to Allow Continuance of Accused’s Detention at the Davao City Jail Pending Trial. The hearing on this motion was set on January 25, 2013. However, on January 21, 2013, Branch 19 postponed the hearing to February 04, 2013. On the latter, there will be two hearings on two different motions. During the dated Bail hearing, February 04, 2013, human rights groups assembled themselves outside the City Hall of Manila to rally against the human rights violations currently committed against Cocoy Tulawie. They are calling to speed up his trial and release him from detention. Due to the information of the security and threat to life of the accused, the Bureau of Jail Management and Penology guarded the entire City Hall building, placing its soldiers at every floor. The first to arrive was co-accused Juhan Alihudin who was detained in Manila City Jail. Juhan Alihudin was arrested without a warrant and by virtue of the 2009 State of Emergency of Sulu. He was detained in Sulu Provincial Jail and was transported to Manila on January 29, 2013. Cocoy arrived in a BJMP vehicle, complete with security escorts and safety accessories such as a bullet proof vest. He was lead to another entrance causing human rights groups not to take sight of him. Judge Marlo Magdoza-Malagar first tackled the Urgent Motion to Allow Continuance of Accused’s Detention at the Davao City Jail. She raised two salient concerns regarding the urgent motion: First, will the accused Tulawie waive his right to be present during trial assuming that his detention is retained in Davao City? and second, Will there be an alternative detention facility other than SICA in case the motion will be denied? Atty. Sotto argued that there is no security risk against the life and limb of Cocoy considering that the Court of Appeals already issued a Writ of Amparo and the Commission on Human Rights already assured Cocoy’s safety. These reasons were also stated in the Opposition that the party of Governor Tan filed. With regards to the alternative detention facility, Atty. Marlon Manuel raised that the Commission on Human Rights is to conduct an Inter-Agency Meeting with PNP, BJMP, AFP and BND to discuss the concern.
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In answer, Judge Marlo Magdoza-Malagar ruled that the parties shall put their arguments and defenses in writing and submit them to court. The Defense is given 15 days from February 4, 2013 to answer the Opposition filed by the Prosecution. On the other hand, the Prosecution was given 15 days from receipt of the answer to file its reply. Then, the motion will be submitted for resolution. After the parties agreed, Bail hearing proceeded. The defense manifested that they have not received Judicial Affidavits as required under the Order of Branch 19 dated December 07, 2012. The private prosecutor Wendell Sotto argued that Judicial Affidavits are not applicable to the case because the Rules states that the same is applicable only to crimes with penalties of less than 6 years. Atty. Marlon Manuel, with a copy of the rules on hand, stated that the rules are applicable if the accused agrees to use the same irrespective of penalty. The accused in this case did not contest the Judicial Affidavit rule, hence, he is consenting to use the same. Nevertheless, the Defense, in behalf of the accused, formally agreed to use Judicial Affidavits. Because of the absence of Judicial Affidavits, the Court reset the bail hearing on March 4 and 6, 2013 and expressed that submission of Judicial Affidavits prior to the hearing is mandatory. On February 26, 2013, the Defense Lawyers received a set of Judicial Affidavits consisting of four affidavits from the Prosecution. It can be remembered that on December 07, 2012, the prosecution committed to present 30 witnesses for the bail hearing, thus, were expected to submit 30 Judicial Affidavits. However, on March 01, 2012, they submitted additional 5 Judicial Affidavits. All the Judicial Affidavits submitted were written in Filipino. During the bail hearing on March 04, 2013, the private prosecutor in the person of Atty. Vitaliano Aguirre moved to postpone the bail hearing on another date because their Judicial Affidavits were still incomplete, and that lawyers were still to interview additional witnesses. Atty. Mary Ann Arnado of the Defense objected on the proposition on the ground that the postponement is another delay to the previously set bail hearing. She opined that, as early as December 07, 2012, the prosecution have been ordered to prepare Judicial Affidavits. They were given more than 60 days to prepare the affidavits until February 04, 2013 but failed to do so. Moving the bail hearing for the same reason will abridge the right of the accused to speedy trial.
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Judge Marlo Malagar of Branch 19 RTC Manila agreed with the Defense and ordered that the bail hearing pursue and that the Prosecution produce their witnesses on that date. The Prosecution submitted to the order. The prosecution presented its first witness in the person of Mujibar Ali “Bong” Amon, who is detained at the Special Intensive Care Area, Bicutan City Jail in Taguig City. He was asked if he personally knows Temogen “Cocoy” Tulawie, and he positively answered the same. He was asked by Atty. Aguirre to identify the other accuseds but Atty. Jajurie of the Defense objected on the ground that the bail hearing is only to determine if the evidence against Tulawie is strong. Other accused need not be identified. The Judge stated that as long as the identification will point on the strength of the evidence, it will be fine. However, he manifested that he cannot speak Filipino or English well. His insistence on having an interpreter slowed the cross examination by Atty. Arnado. Atty. Manuel manifested that the Judicial Affidavits were written in Filipino, which means that during the recording of the testimony, the language used that is comfortable to the witness is Filipino. Atty. Aguirre and Atty. Sotto answered that there were two interpreters who assisted him during that time. There was no available interpreter in the court room which caused the lawyers of the prosecution invite some men from their party to stand as one. When the cross examination proceeded, Bong was not able to answer the questions properly because he had a hard time remembering. He asked for a reasonable time for him to remember everything. The prosecution then proceeded to their next witness, a policeman in Sulu named Omar Lidasan. He was accompanied by an interpreter on the stand. He testified that he was on leave that is why he was able to take the witness stand. He was on board the pick-up where Governor Tan was also on board during the IED explosion last 2009. Omar Lidasan was made to identify his affidavit and signature, which he positively did. Atty. Aguirre asked him to identify the person of Temogen “Cocoy” Tulawie but Atty. Manuel of the Defense objected because there was no mention of Tulawie’s name in Lidasan’s Judicial Affidavit. The court sustained the objection. The Public Prosecutor asked Lidasan to identify a certain Medical Certificate under his name if it is a certified true copy. Said Medical Certificate evidencing the wounds he sustained during the explosion was
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attached as an Annex in Lidasan’s Affidavit. The public prosecutor also asked the defense if they received the same copy of Medical Certificate. Atty. Manuel compared the Defense’s copy and the original copy and stated that the Medical Certificates are not the same. During cross examination, Atty. Manuel asked him to illustrate or picture out their seating arrangements when the explosion happened. But he vaguely answered the same. The Public Prosecutor then asked him to draw the seating arrangements and present it to court. The drawings were marked as exhibits, together with the signatures and affidavits.
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