Finding justice for the slain journalists‘Extraordinary’ delays
Not the first
As mentioned by CA Mindanao, the May 21, 2009 petition was not the first petition for certiorari Montañer and Sabay filed since the re-investigation of the murder charges against them in September 2007.
The first petition, which sought to stop DOJ Manila from re-investigating and eventually re-filing the murder charges against them, was filed Nov. 19, 2007 before CA Manila. Montañer and Sabay questioned the legality of re-investigation as the dismissal of the charges against them by then Tacurong City RTC judge Francis Palmones in August 2005 allegedly already attained finality.
In 2005, Palmones dismissed for lack of evidence the murder charges against the two suspect-masterminds, effectively removing them from the list of those accused in Criminal Case No. 2568. Criminal Case No. 2568 pertains to the case against then suspected killers Randy Grecia, Gerry Cabayag, and Estanislao Bismanos in Tacurong City RTC (The case against the gunman and other accused persons was transferred to Cebu City RTC in November 2005).
The petition before CA Manila was denied in October 2008. CA Manila ruled that “…the complainants may present new or additional evidence which could alter the result of the earlier finding of no probable cause and accordingly ask for a re-investigation or a reopening of preliminary investigation.” It also explained that “such dismissal merely relieved the petitioners from imprisonment or from being held on bail and not to acquit them of the crime charged.”
As CA Manila was resolving the Nov. 19, 2007 petition, the DOJ Manila reinvestigating panel found probable cause to file the murder charges against Montañer and Sabay. On Feb. 1, 2008, State Prosecutor and now Assistant Secretary Geronimo Sy filed the charges at Cebu City RTC.
Three days after the filing, Montañer and Sabay filed a petition for certiorari with prayer for the issuance of a writ of preliminary injunction asking the CA Cebu to stop the criminal proceedings in the trial court as well as stop the service of the arrest warrant. CA Cebu issued a 60-day TRO on March 25, 2008 and, subsequently, a writ of preliminary injunction on May 14, 2008.
In its May 14, 2008 resolution, CA Cebu said “Verily, an injunction will not generally lie to restrain a criminal action except ‘… (7) where the Court has no jurisdiction over the offense;…’ as enunciated in Brocka vs. Enrile (192 SCRA 183[1990]). At this point, petitioners have demonstrated a clear legal right threatened by a non-bailable crime filed against them before a court which apparently has no jurisdiction over the offense charged.”
The prosecution then filed before the Cebu City RTC a motion to withdraw the charges to re-file the case at RTC in Tacurong City, Sultan Kudarat where the murder happened. On Oct. 20, 2008, DOJ prosecutors filed the Information before RTC Tacurong City. The case was then raffled to the sala of Judge Guerrero, whose denial of the accused masterminds’ motion to dismiss is the subject of the denied May 21, 2009 petition for certiorari.
Motion for reconsideration
Does the CA Mindanao 21st Division’s decision denying Montañer and Sabay’s petition for certiorari now mean that the case can proceed? Not yet. Both are now seeking the reversal of the Aug. 19, 2011 decision.
In a Sept. 5 motion for reconsideration, Montañer and Sabay denied having committed forum shopping, arguing that the petition dismissed by the Manila CA and the petition before the CA Mindanao station were “definitely not similar issues proscribed by the rule against forum shopping.”
“…the bone of contention in CA GR SP No. 101348 is the propriety of the conduct of the preliminary investigation by the DOJ for the revival of the murder case of Marlene Esperat, while the instant petition dwells on the validity of the issuance of the warrant of arrest against the Petitioners by the court a quo or the abuse of Respondent Judge’s discretion in the exercise of the so-called ‘judicial determination of probable cause,’” their motion for reconsideration read.
They also cited Paredes, Jr. vs. Sandiganbayan (252 SCRA 641), which said “the mere filing of several cases based on the same incident does not necessarily constitute forum shopping.”
The alleged masterminds also reiterated their claim that Judge Guerrero “committed grave abuse of discretion…in finding the existence of probable cause for the issuance of warrants of arrest against petitioners.”
They argued that Barua’s testimony before the 2006 trial at the Cebu City RTC—“the only evidence implicating the Petitioners for the said murder”—was “not part of the 329 pages of documents submitted by the prosecution to the court (on which) the Respondent judge allegedly based his finding of probable cause.”
This motion for reconsideration is now the basis of the alleged masterminds’ “Vehement Opposition” to the prosecution’s motion for the issuance of an alias warrant before the Makati RTC Branch 138.
The prosecution in a Sept. 22 motion asked the court to issue the warrant since “there remains no legal obstacle in the arrest of the Accused and the resumption of criminal proceedings against them” with the denial of their petition for certiorari before the CA Mindanao station. (The legal counsel of FFFJ represents the Esperat family in the murder case. The Center for Media Freedom and Responsibility, publisher of the PJR Reports, serves as the technical and administrative secretariat of FFFJ.)
Review of the Rules of Court
The continuing abuse of legal remedies has greatly contributed to the culture of impunity in the Philippines. It makes the already tedious Philippine judicial procedure more painful to bear for the loved ones of victims of crime and human rights violations.
The review of the provisions of the Rules of Court of the Philippines was one of the solutions presented by press freedom groups and media organizations to the administration of President Benigno S. Aquino III.
“In a meeting on August 8, 2010, the FFFJ and the National Union of Journalists of the Philippines discussed their concerns with Justice Sec. Leila de Lima, Sec. Herminio Coloma of the Presidential Communications Operations Office and Presidential Spokesperson Edwin Lacierda. Among other initiatives, we recommended: 1) the strengthening of the Witness Protection Program; and 2) the formation of Multi-Sectoral Quick Response Teams which will combine both investigative, forensic and other police actions on the killing of journalists. We also asked for steps that would accelerate the pace of the Ampatuan Massacre trial, and, for long-term reform, a review of the rules of court to diminish the possibility of abuse and manipulation,” the April 2011 open letter to Aquino read.
Hopefully, the Aquino administration will act on the recommendations to take certain steps to speed up the prosecution of cases so as to contribute to ending the impunity that encourages the continuing killing of journalists in the Philippines.
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