This developed as Estrada’s lawyers asked the Supreme Court yesterday to defer the trial until the SC rules on the constitutionality of the plunder law.
The appeal to the high tribunal was apparently a last-ditch effort of Estrada’s lawyers to reset the trial from Oct. 1 to an undetermined date in November.
Estrada’s lawyer, former senator Rene Saguisag said the defense team is asking that the Oct. 1, 17 and 18 hearings be postponed on grounds of "unavailability of counsel," that there is still "no formal pre-trial order," and the illegal use of an alias case is still unresolved.
Saguisag claimed his calendar for October is already fully booked and could not accommodate Estrada’s trial — the first time a former Philippine president is to be tried for a capital offense.
Saguisag’s colleague in the defense team, Cleofe Verzola has also supposedly left the country for the United States to visit her ailing mother.
Another team member, former Manila chief prosecutor Jose Flaminiano, said he would not be able to make the trial because he would be accompanying his wife to Tarlac on Sept. 30 to attend the feast of St. Therese.
Another Estrada lawyer, Felix Carao even challenged the court to cite the Estrada defense panel in contempt.
"We can never be cited for contempt by the court because we were not consulted in the fixing of the trial dates," Carao said.
The Fortun, Narvasa Law Office, another member of the defense team, made no assertion that it would not be able to send an associate to the trial.
But it joined Saguisag in asking the SC to defer the trial because of several unresolved motions pending before the courts, including a suit before the SC questioning the legality of the anti-plunder law.
"Without meaning to be presumptuous, one could not discount the real possibility of the plunder law being ruled unconstitutional or inapplicable here and to rush to trial in October, as it were, may just mean so much time may be wasted," the Estrada lawyers told the SC.
However, Justice Anacleto Badoy of the court’s third division ordered Philippine National Police chief Director General Leandro Mendoza to ensure the presence of Estrada and his co-accused son Jinggoy and lawyer Edward Serapio.
Estrada, 64, has two pending cases before Badoy’s division: the capital charge of plunder and the indictment on the illegal use of Jose Velarde as an alias.
The former president also has a perjury case pending before the Sandiganbayan’s first division, chaired by Presiding Justice Francis Garchitorena, but the case is still on the pre-trial stage and the court has yet to set a trial date.
Estrada was arrested on April 26 and was detained in a special facility in Sta. Rosa, Laguna but was later moved to the Veterans Memorial Medical Center, nearer the Sandiganbayan courthouse.
Legal analysts said that since Estrada and his co-accused son Jinggoy are confined in the government hospital with comfortable facilities, his defense team has apparently adopted the tack of utilizing all allowable tactics to delay the proceedings.
Estrada lawyer Pacifico Agabin questioned before the SC the constitutionality of the plunder law, saying the law was "vague and ambiguous" because it did not specify the elements needed to establish the crime.
Agabin held that for a capital charge involving life and liberty of an accused, the anti-plunder law is unfair because it does not specify that there must be criminal intent to establish the crime.
"The legislature did not specifically provide for the intent. Congress tried to remove the criminal intent. The words ‘maliciously’, ‘feloniously’, ‘knowingly’, ‘willfully’, etc. were absent. There is no room to interpret it in that manner," Agabin said.
Agabin contended that the anti-plunder law gives too wide and unlimited discretion to government prosecutors and warned that this could even be used to "inflict injustice, political persecution or extortion."
"It is a legal ambiguity. We beseech you to look beyond the technical aspects. This goes beyond technicalities. This law disguises as a rule of evidence. It strikes at the fundamental law and justice," Agabin argued.
But during marathon oral arguments before the high tribunal on Sept. 18, Solicitor General Simeon Marcelo argued, in seemingly "polite sarcasm," that "it’s very hard to wake up somebody who pretends to be asleep."
Speaking in Filipino, the government’s advocate before the SC told the justices that Estrada refused to acknowledge the plunder law, which he helped enact in 1992, simply because he is now charged with breaking it.
"We cannot assume that he didn’t understand the law. He was privy to the deliberations," Marcelo argued in defending the anti-plunder law, or Republic Act 7080.
Estrada was among the 19 senators who unanimously voted for the passage of the Senate version of the anti-plunder bill as was Saguisag who even co-authored the bill.
Saguisag, however, now claims he never signed the law although Senate records show neither did he vote nor even abstain when the measure was brought to a vote.
Marcelo assured the SC that, being privy to the case against Estrada as a member of the prosecution during the former president’s impeachment trial, there is sufficient evidence to convict Estrada even if the quantum of proof is "beyond reasonable doubt."
Also during the Sept. 18 oral arguments, Justice Artemio Panganiban told Agabin that "lack of definition in law is no proof that a law is vague."
Justice Vicente Mendoza also questioned Agabin’s argument and said "criminal intent" need not be provided because it is "inherent" in the Revised Penal Code.
"You don’t have to specify. You’re ranging far and wide and asking a hypothetical question," Mendoza said.