Finding justice for the slain journalists‘Extraordinary’ delays

by Melanie Y. Pinlac
Published in PJR Reports, September-October 2011

INSTEAD OF speeding up the quest for justice, legal procedures can be used to delay, and worse, even bring judicial proceedings to a standstill. Petitions for certiorari and prohibition are two of the often abused extraordinary legal remedies in the Philippines.

Certiorari is “the extraordinary remedy to correct an actuation of a judge who has acted without jurisdiction, in excess of jurisdiction or clearly in grave abuse of discretion, and not to correct errors of procedure and/or mistakes in the judge’s findings or conclusions.” (Martin vs Florendo, SP-09340, Jan. 27, 1982 as qtd. in “Philippine Law Dictionary”, Moreno F., 1988 Reprint: April 2005)

Prohibition, on the other hand, is “a writ issued commanding a tribunal, corporation, board, or person…to desist from further proceedings when the same are without or in excess of jurisdiction.” (Sec. 2, Rule 65, Rules of Court qtd. in Moreno, p.752)

Both can be found under Rule 65 of the Rules of Courts of the Philippines.

In the Marlene Esperat case, the petitions for certiorari and prohibition filed by the alleged masterminds have resulted in a two-year delay in the prosecution of the alleged masterminds.

The Esperat case

The murder case against Osmeña Montañer and Estrella Sabay was first filed in February 2008 at the Cebu City Regional Trial Court (RTC) after the Department of Justice (DOJ) conducted a re-investigation on their alleged involvement in the March 24, 2005 murder of Esperat. But the case was withdrawn and re-filed before the Tacurong City, Sultan Kudarat RTC as a result of a petition for certiorari. In August 2009, the Supreme Court ordered the case venue transferred to the Makati RTC upon the request of the Esperat family and the Freedom Fund for Filipino Journalists (FFFJ), on the argument that the alleged masterminds could influence the conduct of the trial and that holding the trial in Tacurong City would create security problems.

Despite the transfers of venue, the trial of the alleged masterminds in the killing of Esperat has not progressed. Branch 138 of the Makati RTC has not heard the murder case against Montañer and Sabay after nearly two years. The two suspects could not be arrested despite their reported presence in Cotabato City.


The delay was the result of a petition for certiorari and prohibition filed by the alleged masterminds before the Court of Appeals (CA) Mindanao Station on May 21, 2009.

Montañer and Sabay filed the petition for certiorari and prohibition two days after Tacurong City RTC Branch 20 Judge Milanio Guerrero denied their motion for reconsideration of Guerrero’s denial of their motion to dismiss the murder case against them. The petition contained a prayer for the issuance of a preliminary injunction and/or temporary restraining order  (TRO).

In their 31-page petition, the alleged masterminds through their counsel Cesar Jimenea alleged that: (1) “respondent judge gravely erred in denying petitioner’s motion to lift the warrant of arrests”; (2) “re-filing of the murder case against petitioners is barred by Section 8, Rule 117 of the Rule of Court, as interpreted in People of the Philippines, et. al. v. Panfilo M. Lacson Case”; and (3) “the dismissal of the same murder case against petitioners on 31 August 2005, has attained finality, thus could no longer be disturbed”. (Section 8 of Rule 117 refers to provisional dismissal, which states “A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.”)

A few months after requesting additional documents from the petitioners, in December 2009 the 21st Division of CA Mindanao station granted the alleged masterminds’ request for a preliminary injunction against the trial judge, the People of the Philippines and Esperat’s sister Valmie Garcia Mariveles pending the resolution of their petition for certiorari and prohibition. The criminal case came to a standstill as the trial court was enjoined from further hearing the case.

Forum shopping

It was only in August this year that the 21st Division of CA Mindanao issued its decision.

In a 26-page decision penned by Associate Justice Romulo Borja, the Division issued a resolution denying the two alleged masterminds’ petition for certiorari and prohibition on the grounds that the petition constituted forum shopping. Associate Justices Edgardo Lloren and Carmelita Salandanan Manahan concurred with the decision.

Forum shopping refers to “the act of filing the same suit in different courts. It is an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes.” (Buan v. Lopez, L-75349, Oct 13, 1986, 145 SCRA 38 qtd, in Moreno p. 391)

“The heart of the present petition is petitioners’ insistence that the filing of the information in Criminal Case No. 3064 is time-barred under Section 8, Rule 117 of the Rules of Court and that the dismissal of the same murder case against the petitioners on Aug. 31, 2005 had attained finality and can no longer be disturbed. These have already been addressed and resolved by us acting through our Eighth Division in our decision in CA G.R. SP No. 101348,” the appellate court said. (CA G.R. SP No. 101348 refers to Montañer and Sabay’s November 2007 petition for certiorari and prohibition filed before the Manila station of the CA.)

It added that “Even if we were to disregard, arguendo, petitioners’ forum shopping, the present petition would nonetheless be dismissed on the merits of the claims.” It added that “The respondent court did not err, much less act with grave abuse of discretion, in denying their ‘Motion to Quash and the Supplemental Motion to Quash.’”

The court also said that the time-bar rule cannot be applied on the case against Montañer and Sabay as the elements of “provisional dismissal” and “express consent” were missing.

The petitioners’ “claim of grave abuse…in the issuance of the arrest warrant” was also found to be baseless. “The language of the Order clearly shows that the respondent judge made his own personal determination of the existence of probable cause by examining not only the prosecutor’s report but also his supporting evidence.”