Government, defense lawyers want Badoy out of Erap trial

In a rare display of unity, the prosecution and the defense in the landmark plunder case against ousted President Joseph Estrada batted yesterday for a permanent replacement for Justice Anacleto Badoy who was placed by the Supreme Court on indefinite leave of absence, effectively barring him from further hearings of the case.

This developed as Justice Teresita de Castro, Badoy’s temporary replacement as chairman of the Sandiganbayan’s third division handling the plunder case, suspended trial until next month due to "lack of quorum."

Ombudsman Aniano Desierto said acting Presiding Justice Minita Nazario must appoint a permanent replacement for Badoy, 69, to ensure that the trial of the plunder case will not be delayed.

Justice Secretary Hernando Perez said he supports the Supreme Court decision to take Badoy out of the plunder case trial.

"We cannot afford to have a temporary replacement for Justice Badoy everytime there is a scheduled trial of Estrada’s case. That is why there must be a permanent replacement until he recovers," Desierto said.

He added that if the justices composing the third division were all temporary, they may not have a full appreciation of the evidence presented.

"This is a very serious and solemn proceeding," Desierto stressed.

He said Badoy’s substitute will serve as chairman of the third division until the ailing justice has fully recovered.

The Ombudsman did not rule out the possibility that the plunder case might be raffled off anew to give it a fresh start.

Desierto also said if the tribunal determined that Badoy committed an act unbecoming of a justice, he should be reprimanded or suspended.

A suspension of Badoy will automatically call for the transfer of the case to another division.

Another member of the third division, Justice Ricardo Ilarde, 70, retired recently and has not been replaced, leaving another seat vacant.

Desierto urged the Judicial and Bar Council to speed up its deliberations and immediately present their list of nominees to replace Ilarde.

"It is preferable that a justice who can outlast the case is appointed and not one who is due for retirement. I’m appealing to the justices to defer action on the motions filed by the defense until such time that the composition (of the third division) is completed," Desierto said.

Ombudsman Prosecutor Dennis Villaignacio also said Badoy should go on leave if he is sick.

Villaignacio noted that during a recent hearing, Badoy ordered prosecution witness William Ocier to answer a question, but Chief State Prosecutor Jovencito Zuño who was conducting the direct examination had not asked any questions yet.

"He (Badoy) even gave an order to strike out an answer when the witness had not even answered yet," Villaignacio said.

He added it would be to the best interest of both the defense and prosecution that Badoy go on leave to maintain the integrity and credibility of the hearings. "I’m afraid he might commit errors which could affect the prosecution and the defense panels."

He cited the fact that Badoy has a hearing problem.

"If his hearing problem, health problem and medication are combined, it will result in errors," Villaignacio said.

For his part, Estrada’s lead counsel former Justice Secretary Serafin Cuevas noted that the hearings were more orderly and smooth without Badoy.

"I don’t think Badoy was conducting the proceedings properly. His leave of absence will help alleviate his physical and mental conditions," Cuevas said.

Former Sen. Rene Saguisag, another lawyer of Estrada, empathized with Badoy. "You might treat Badoy’s attitude as a dedication to his job. But this is not the appropriate time," Saguisag said.

He added that if a leave of absence will make the justice well, he should go on a permanent vacation.

In suspending the trial, De Castro clarified that Justices Narciso Nario who was pitching in for Badoy, and Nicodemo Ferrer, who was sitting in for Ilarde, had official businesses to attend to.

"We cannot produce a warm body, so we are compelled to suspend the proceedings," De Castro said.

Also covered by De Castro’s suspension order were two more hearings set this month. The trial will resume on Jan. 7.

In its order handed down late Tuesday, the SC said Badoy "is considered on leave until further orders from this Court."

The decision was made in connection with petitions filed by defense lawyers who charged Badoy with "improper conduct" for taking an ambulance in order to be treated in a hospital, but proceeded instead to the studios of a radio-television network for an interview.

Another petition cited Badoy for alleged inability to act on the case against Estrada with the "cold neutrality of an impartial judge."

A source said Chief Justice Hilario Davide was "very angry" at Badoy because of his television interview last Nov. 29.

Davide allegedly wanted Badoy fired for misconduct.

Badoy’s removal from the trial which began on Oct. 1 was only one of several problems hounding the plunder case.

Under Philippine laws, plunder is a capital offense and therefore, non-bailable and punishable by death.

The trial has been mired in weeks of legal wrangling and hampered by a feud between Badoy and Presiding Justice Francis Garchitorena who was earlier suspended indefinitely by the SC for sitting on the graft cases pending in his sala.

Garchitorena was trying the perjury charge against Estrada, a 64-year-old former movie star, arising from his alleged filing of an erroneous statement of assets and liabilities for 1999.