The charges against some 28 Filipinos who illegally entered Malaysia-controlled Sabah in February will begin next month, a well-placed source in the Department of Foreign Affairs (DFA) told reporters.
The source, who refused to be identified, said the Filipinos are facing two charges: terrorism and waging war against the King.
While Section 130 KA (terrorism) calls for a jail term of up to 30 years, Section 121 (waging war against the King) can draw the death penalty.
“The Malaysian authorities are hell bent on securing conviction on charges of waging war against the king with possible death penalty. No less than their attorney general is leading the prosecution. Imagine [Justice Secretary Leila] de Lima being the one leading the prosecution, that is how serious it is,” the official said.
One of those charged is the nephew of Sulu Sultan Jamalul Kiram 3rd, Datu Amir Bahar, said the source, who was captured not in Lahad Datu but in Sandakan.
“If there’s anything that is really boiling the Kirams, it’s the prosecution of Datu Bahar,” the source added.
The Kirams are also indicted in the charge sheet as conspirators.
According to the source, it is easy for Malaysian authorities to get a conviction considering that wiretapped conversations are admissible as evidence (in their courts).
The official further pointed out that in Malaysia they can even have a witness testify in court without ever facing the accused.
“Funny thing about [the Malaysian]justice system, if there’s an acquittal they can appeal the acquittal,” the source explained. “Here that’s already double jeopardy. But [in Malaysia]they can appeal straight up to the federal court.”
“I think what the Malaysian prosecution will do is to secure conviction whatever the cost,” he stressed. “But we should not allow them to do shortcuts such that it would raise issues of fairness and impartiality because there are international judicial standards on this.”
What allows them to do technical shortcuts, the source explained, is the so-called Internal Security Act (ISA), which in Malaysia they now call Sosma (Security Offenses Special Measures Act).
However, the official pointed out, there is no need for Sosma in this particular case since the incursion is over.
“These people have already been captured and they are practically helpless. Why use an ISA law against these people? They should just be tried using the regular criminal procedure,” the source said.
“[Nevertheless], they will hit hard on the trials, push on conviction so that in public opinion they will be able deligitimize the [Sabah] claim itself,” the official added.
The Department of Foreign Affairs (DFA) has already confirmed that it has tapped the services of a Malaysian lawyer, one of the few Asian legal practitioners accredited by the International Criminal Court (ICC) in The Hague, to represent the RSF members who were arrested.
However, the source expressed pessimism that the government-commissioned lawyer will not be sufficient to “save” those facing trial considering the Malaysian justice system.
The source said if there is anything that could save those charged is that “if they impose the death penalty, maybe it is not to impose it right away.”
Keeping those convicted in jail may serve Malaysia’s purpose already, the source added.
What is sure though, said the source, is that the five member team of legal counsels who will defend those accused will definitely put up a fight.
“The prosecution needs to prove for each and every individual the commission of covert acts. Did they see that these people were really fighting them, shooting? Can they prove that?” the official said.
Meanwhile, a death penalty on the 28 Filipinos will have serious ramifications in the peace and development of Mindanao (south of Manila), a Washington-based political consultant said.
Al Santoli, president and founder of Asia America Initiative, said the Philippines might have give up its claim on Sabah, “but the local people [in Mindanao]will not.”