( I have not read any of the pleadings in this case, nor have I talked to the lawyers because of the lateness of the hour, this is based solely on the news report this evening by Mike Navallo of ABS-CBN. I will delete this post if I got it wrong)
In criminal law, if one offense is already an element of another offense, only one crime can be charged because the first offense is already an element of the graver offense. For example: If a robbery occurs, the accused cannot be charged with both Trespass to Dwelling and Robbery because the lesser offense of Trespass to Dwelling is already an element of Robbery.
Japer Gurung and Junior Ramos are members of the indigenous community of the Aetas in Zambales. I will refer to them by their names. They were not able to attend our schools, hence, unable to read the tiny letters and graphics we use to communicate, but they are able to read their natural environment, which allowed them to survive by sustainably using the resources around them. They had to “sign” their verification of the Petition in Intervention filed in the Supreme Court with their thumb print.
In the case of Japer Gurung and Junior Ramos who are presently detained without bail on charges of violation of Section 4(a) of the Anti-Terrorism Act (ATA) defining terrorism, the State charged them with terrorism under Section 4(a) or intendment to inflict “death or serious bodily injury” under the the ATA with no overt act required, then filed ANOTHER charge of murder for the same offense, then a third charge of unlawful possession of firearms. The State considers them separately and will not dismiss based on double jeopardy as it treats the overt act in murder separate from the intendment with no overt act in ATA, which makes the ATA as applied by the State in the case of Japer and Junior, unconstitutional.
(They were not allowed to have counsel for weeks, and when they did , Japer and Junior detailed to their lawyers (the National Union of Peoples Lawyers) their ordeal, it included torture under custody. Because this is a Petition in Intervention, I will not traverse facts.)
Petitioners-in-Intervention will obviously NOT raise any evidentiary matters as it is a Petition in Intervention in a Petition for Certiorari and Prohibition on the constitutionality of the ATA.
They will therefore NOT raise any questions of fact. Only questions of law. And the question of law strikes at the core of the ATA.
In the case of Japer and Junior, the ATA as applied is: the State charged Japer Gurung and Junior Ramos with terrorism under the ATA, AND murder , AND illegal possession and are put in triple jeopardy of being tried thrice for the same offense and serving THREE SENTENCES instead of just one sentence, in this actual case of the ATA as applied.
One of the Supreme Court justices during the oral arguments stated that the Petitioners should just trust the courts to interpret the ATA to make it constitutional and should not have any fear — that if the ATA did not include any overt act but a mere intendment then the Petitioners should just trust that the courts would require an overt act.
The Petitioners should traverse that it is not a question of fear. It is a question of law. The case of Japer and Junior shows it.
The ATA does not require a predicate unlawful overt act as applied but punishes only an intendment without having to show any overt act, and this is how the State applied it in the case of Japer and Junior : The State separated the overt act. The State even separated the overt act twice: Split them into two, murder then illegal possession, then it became three: Terrorism with no overt act, murder, illegal possession. Do you see it?
Japer and Junior are in triple jeopardy of being tried and punished for, first, an intendment (terrorism) with no overt act, then, second, separately, for murder separately because the State applying the ATA does not include any overt act; therefore, here in this case, the State separated it, as a separate crime of murder, and third, for illegal possession.
The Supreme Court should hear this Petition in Intervention this week. It shows the unconstitutionality of the ATA as applied, and whatever the State does now as a tactic, even if it files a notice of dismissal, the damage and injury has already been inflicted on Japer and Junior by the application of the ATA with the mere fact of their unlawful detention. The damage has been done. This is the ATA as applied. The State put Japer Gurung and Junior Ramos in triple jeopardy of serving sentences for terrorism intendment with no overt act, then separately for murder and separately for illegal possession. Triple jeopardy and one is a mere intendment (the ATA), NOT EVEN AN OVERT ACT . The Supreme Court should hear the Petition in Intervention this week.
(two videos follow: News report of Mike Navallo, and interviews of NUPL’s Atty. Josa Deinla)