Tan raps judge at Ombud

The lawyer of suspected drug financier Calvin de Jesus Tan filed a criminal complaint against Regional Trial Court presiding judge Marilyn Lagura-Yap yesterday before the Office of the Ombudsman-Visayas.

William de los Santos, counsel of Tan, accused Yap to have knowingly rendered an unjust interlocutory order under Article 206 of the Revised Penal Code when she denied his client's petition for bail without any legal or factual basis at all.

"The said order per se shows that said respondent judge had whimsically and capriciously exercised her judicial discretion, tantamount to grave abuse of discretion, in depriving Tan's constitutional right to bail," De los Santos said in his 9-page affidavit.

De los Santos complaint is an off-shot of the March 31 joint order of Yap, wherein Tan's petition for bail was denied.

Tan together with 13 other accused are on trial for two counts alleged violations of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 before Yap's sala.

Tan is being indicted as the alleged financier of the two alleged clandestine shabu laboratories in barangays Pakna-an and Umapad in Mandaue City.

To recall, Yap denied the petition for bail filed by Tan stating that the court finds that the evidence of guilt of the accused Tan is strong, thus denying the bail petition.

De los Santos in his complaint said that Yap is giving undue credence to the testimony of prosecution witness Morteza Tamadoni, who testified that he met accused Tan in Macau on April 14 and 15, 2004.

Yap, in her order, stated that the prosecution was able to prove that Tamadoni was in Macau on the said date through his travel documents.

She stated in the order that through Tamadoni's testimony, Tan was in conspiracy with co-accused Hung Chin Chang although it was Tamadoni and Chang, who were directly dealing with each other in the Philippines, there was an alleged meeting of Tamadoni and Tan in Macau.

"However, the Honorable Judge Yap deliberately evaded discussing the fact that the prosecution did not present any documentary evidence to prove that accused Tan was in Macau," the complaint-affidavit stated. De los Santos added that the prosecution did not present any documentary evidence whatsoever that Tan was in Macau on the said dates and that Yap believed hook line and sinker Tamadoni's testimony without considering that there are so many Chinese in Macau.

"The glaring whimsical exercise of her judicial discretion tantamount to gross ignorance of the law is very glaring and obvious," De los Santos said. "Yap's basis in making the conclusion that Tan is co-conspirator of the other accused Chang merely hinges on supposition and surmises wanting of any concrete evidence to support her conclusion."

De los Santos, who personally filed the complaint at the anti-graft office yesterday added that Yap disregarded the settled jurisprudence that suspicion and supposition cannot be a basis for conviction of an accused, much less, denial of his constitutional right to bail.

Tan's lawyer also pointed out that Yap "stubbornly ignored and did not take into account that based on the general principle of territoriality of penal law, only criminal acts committed within Philippine territory can be tried and punished by Philippine Courts."

De los Santos further said that RA 9165 is a penal law and therefore subject to the principle of territoriality and yet Yap stubbornly gave preference to the statutory provision of conspiracy over the Constitutional provision and generally accepted principle of international law which mandates that Philippine law may only be enforced within its territorial jurisdiction.

De los Santos, together with other four defense counsels Hector and Vicente Fernandez, Eric Carin and Lorenzo Paylado of the other accused of the same charges have filed a petition for Yap's voluntary inhibition of the two cases. The inhibition has still to be ruled by the judge.

The busted shabu laboratory in barangay Umapad was said to be the biggest in Southeast Asia.

Seized in the raid were 675 kilos of shabu worth P1.5 billion and enough chemicals to produce 15 tons more of the banned substance. - Mitchelle P. Calipayan