DND should account for 'missing' amnesty form, Trillanes lawyer says

MANILA, Philippines (Updated 4:18 p.m.) — Sen. Antonio Trillanes IV's missing amnesty application form was central to Friday’s hearing on the Department of Justice's plea for arrest and travel ban against the senator for a dismissed rebellion case.

According to Judge Elmo Alameda, who is handling the prosecution’s motion for a warrant against the senator, the application form with a received stamp from a government agency would be the primary evidence in the case.

But Reynaldo Robles, the senator's lawyer, said, that while they have yet to locate the application form, they have secondary evidence that would prove that Trillanes had applied for amnesty.

After the hearing, Robles in a chance interview, likened the filled-out application form to a person applying for a license.

"Almost 90 percent dito, may lisensiya. Nasa inyo ba yung application ng lisensiya niyo (Almost 90 percent of us here have driver's licenses. Do you have a copy of your application form)?" he said.

“Does that mean null and void yung lisensya niyo? Hindi (Does that mean your license is null and void? No),” he added.

Who lost the documents?

Robles said one problem in Trillanes' case is the question of custody. 

“Kung ang nakawala ay [Department of National Defense] at meron pang suspetya kung pano nawala dahil sinasabi ng Secretary ng DND kinuha raw ng [Solicitor General Jose Calida] di ba,” he said.

(If the DND lost it, and there is suspicion on how it was lost since the Secretary of DND said that Calida took it.)

“Parang winala talaga, di ba (It seems like it was intentionally lost),” he added.

READ: Calida sent a person to 'research' amnesty papers, Lorenzana says

Calida's call

Defense Secretary Delfin Lorenzana earlier said that Calida called him to ask about the amnesty documents of “Trillanes and his men.” He said that the solicitor general sent a member of his staff to look for the documents.

It is unclear what authority Calida had to retrieve the documents from the DND, but the Data Privacy Act holds that "no employee of the government shall have access to sensitive personal information on government property or through online facilities unless the employee has received a security clearance from the head of the source agency."

Lorenzana, in news reports, said that he did not know why Calida had asked for Trillanes' amnesty records.

"Under the circumstances, the Department of National Defense—as personal information controller of the personal data submitted by the Magdalo soldiers in reference to their amnesty applications—may have been remiss in its duties to safeguard the personal data of data subjects," Cecilia Soria, a data privacy lawyer and consultant, wrote on her professional blog on Tuesday.

Soria points out that the National Privacy Commission's Privacy Policy Office has already cautioned in Advisory Opinion No. 2018-007, that "the government or its agencies...do not have the blanket authority to access or use the information about private individuals under the custody of another agency." 

"The Commission is mindful that information provided to government or public authority may be processed without consent when it is done pursuant to the particular agency’s constitutional or statutory mandate, and subject to the requirements of the DPA," the advisory opinion, which pertained to medical records of patients given the Dengvaxia virus, reads.

Calida earlier kept mum on his hand in the review of the amnesty records.

Proclamation 572 was published on the same day that Trillanes was scheduled to conduct legislative probe into alleged impropriety in Calida’s ownership of Vigilant Investigative and Security Agency Inc., a security agency with multimillion-peso contracts with government agencies.

Robles stresssed: “The point here is the DND: Shouldn’t they be accounted for this due to infidelity of custody of documents?”

'Missing document does not prove Trillanes did not apply'

The lawyer added that certification by Lt. Col. Thea Joan Andrade, chief of the military's Discipline, Law and Order Division, that says Trillanes’ records cannot be found “does not prove that my client did not apply.”

“Records of the Department of National Defense will show that he applied,” the lawyer also said.

He added that they have secondary evidence that would prove that the senator did apply for amnesty, such as the amnesty certificate, photos published by the Philippine Daily Inquirer of Trilanes holding his application form, and a memorandum to the DND Ad Hoc Committee that handled amnesty applications.

Secondary evidence should suffice

Robles said that Trillanes has yet to locate the form, but he stressed that it is not important in arguing their case.

He said that they have secondary evidence to support their arguments, and cases have been resolved even with just secondary evidence filed.

Robles filed an opposition to the DOJ’s motion on the Friday morning.

The DOJ, for its part, asked Judge Elmo Alameda five days to file their reply on the Trillanes’ opposition.

Alameda also gave Trillanes’ camp five days to file a Rejoinder on the prosecution’s reply.

After the pleadings have been filed, the motion for the warrant and hold depature order is deemed submitted for resolution.

READ: Court gives DOJ time to answer Trillanes pleading vs arrest