Try calling this another leak

The glamor of newspapering is in the scoop. But is competition so fierce nowadays that two small newspapers would so envy my scoop on goings-on in the Supreme Court to the point of calling for an investigation? Well, not really two papers but two columnists thereof are squealing with a spokesman of Joseph Estrada that the scoop could only have been a leak that broke Supreme Court rules on secret deliberations. Aw, c’mon, guys, do your own research like I do. It’s a tough job, but we have to earn our keep.

But my editors always advise me to ignore cry-baby competitors and just go on. And so I do.

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The scoop was about Justice Santiago Kapunan’s relationship to an Estrada lawyer (Gotcha, 15 Sept. 2001). Specifically, that his son-in-law Atty. Adel Tamano works for Estelito Mendoza, Estrada’s lead counsel in the impeachment trial. And all the squealing is probably because, to my own surprise, the Offices of the Ombudsman and Solicitor General have cited my piece in a motion to disqualify Kapunan from deliberations on Estrada’s petition to declare the Plunder Law as unconstitutional.

The good Justice has of course written back that Mendoza is not a counsel in the present petition, but only in Estrada’s earlier questioning of the legitimacy of Gloria Macapagal-Arroyo’s rise to the Presidency last January. He also said that in the earlier legitimacy petition, he had in fact voted in favor of Arroyo’s being de jure President. In short, no inherent bias for Mendoza, who was also his government boss during the Marcos years. Ombudsman and Sol-Gen lawyers anticipate Kapunan to use the same arguments to counter their petition to disqualify.

The lawyers say Kapunan’s reply misses the point. "The charges in the impeachment trial," they explain "are identical in all respects to three of the four charges" Estrada is now facing before the Sandiganbayan. In turn, these three charges – accepting jueteng money in exchange for protecting vice lords, diverting tobacco tax collections, using a false name for a bank account to hide his hoard – are the very cases of plunder that Estrada wants the tribunal to strike down as unconstitutional. The lawyers add that Tamano and Mendoza figured prominently in arguing for Estrada’s innocence of the impeachment charges. They’ve even found videotapes of it. "The very same arguments that Tamano and Mendoza espoused are those being echoed verbatim in the Sandiganbayan and in the petition against the Plunder Law," the lawyers note. Since the Tamano-Mendoza stand had been made clear on live radio-TV coverage, Kapunan is now caught in a bind, though through no fault of his, about participating in a momentous question of law.

The lawyers cite Supreme Court rulings to bolster their stance. In Urbanes Jr. vs. Court of Appeals, it said that "no judge should handle a case in which he might be perceived, rightly or wrongly, to be susceptible to bias or partiality. His judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest." In Garcia vs. De la Peña, it also ruled that "no judge should preside in a case in which he is not wholly free, disinterested, impartial and independent. A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free of suspicion as to its fairness and as to his integrity."

In their motion to disqualify, the Ombudsman and Solicitor General had cited court rules laid down by the Tribunal itself, to wit:

* Rule 3.12 – A judge should take no part in a proceeding where the judge’s impartiality might reasonably be questioned. These cases include, among others, proceedings where ... (d) the judge is related by consanguinity or affinity to a party litigant within the sixth degree or to a counsel within the fourth degree.

* Rule 137.1 – A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

The lawyers also have an answer to Kapunan’s line that nobody asked him to recuse from the legitimacy case of Mrs. Arroyo’s Presidency, in which Mendoza lawyered for Estrada. Simple, they say, they found out only now about Tamano’s relationship to Kapunan and ties to Mendoza.

They also dispute Kapunan’s claim of voting for legitimacy of Mrs. Arroyo’s Presidency. Kapunan had filed a separate opinion from that of the majority. In that paper, they recall, Kapunan upheld Mendoza’s line that, among others, Estrada never resigned, that supposed proof of it were his letters to the Senate President and House Speaker, and that the Angara Diary was hearsay. In the end Kapunan did say Mrs. Arroyo was de jure President. To the lawyers, that was as fatalistic as saying, nandiyan na ‘yan, wala na tayong magagawa.

And, oh, this is not a leak but again a product of research.

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Lawyer Arno Sanidad reacts to another item in that column, and to Court of Appeals Justice Wenceslao Agnir’s subsequent reply about his dismissal of Panfilo Lacson’s Kuratong Baleleng case in 1999:

I was a private prosecutor in the KB case and thus am privy to information which I would like to bring to light for a more complete picture.

Justice Agnir admits that he knows Ms. Alice de Perio, Mr. Lacson’s wife, and that there was a time when she was his subordinate. He admits he was a newly-transferred judge from in RTC-Quezon City from RTC-Laoag when he heard the KB cases. He admits that two months after he dismissed the case, he was appointed as Court of Appeals justice. He claims his appointment was "upon recommendation of the Judicial and Bar Council." He forgot to state that he was among several nominees, and that it was the former President (Estrada) who actually chose and appointed him.

From the foregoing, the clear succession of events is that: Justice Agnir knows Mr. Lacson’s wife from long before; then Judge Agnir was transferred to RTC-Quezon City; the criminal case of Ms. Lacson’s husband was then raffled to Judge Agnir; then Judge Agnir dismissed the case; and then Judge Agnir was promoted as justice by then-President Estrada. The plot thickens. Anyone’s guess is as good as mine.

Justice Agnir claims that his dismissal of the KB case was due to lack of evidence to sustain the charge. However, he relied solely on the supposed recantation of the witnesses and the affidavits of desistance.

Truth be told, recantations must be received with caution since they are exceedingly unreliable. Thus, if there are other evidence to sustain the charge, recantations do not suffice to have a case dismissed. (People vs Bernardo, 220 SCRA 31, 1993)

It should be noted (this is not disputed unless he claims that the 11 victims committed suicide) that some of the accused admitted to shooting and killing the victims. They, however, interposed the defense of a shootout. Shootout is akin to showing that it was a valid police operation resulting in a shootout. Thus, despite the recantations of the witnesses, then-Judge Agnir should not have dismissed the cases against those who admitted killing the victims (one of whom was only 14 years old, while another was only 17). Again, Justice Agnir knows this.

Was there evidence to support a shootout? None.

The very next day after the rubout, four of the 11 murder victims were subjected to paraffin tests. The rest of the cadavers were subjected to the same test the day after. All tests on the 11 murder victims yielded negative results for the presence of gunpowder nitrates.

Physical evidence further show that all 11 murder victims suffered gunshot wounds in the head, a signature summary execution. As shown by the autopsy report, one victim was even shot at close distance of less than two feet. Physical evidence speaks more eloquently than a hundred witnesses. (People vs Sacabin, 57 SCRA 707, 1974) Certainly this could not be a shootout but a merciless summary execution. The foregoing facts are confirmed by the findings of the Senate committee on justice. Surely, Justice Agnir must know all these.

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