Long fight ahead for Ping, pursuers

A senator’s ungrammatical twit notwithstanding that it "ran smack of political accommodation for Malacañang," the unanimous Supreme Court decision on the Kuratong Baleleng case was fair. Proof: the principal contenders liked it. "God is still with us," sighed Sen. Panfilo Lacson, long haunted by the massacre. For the government side, Justice Sec. Nani Perez said, "It gives us a chance to reopen the multiple murder case."

The Tribunal basically upheld Lacson’s line that prosecutors can no longer hound him for a rap two years after it was dismissed. And for this Lacson believes he was saved by the bell.

The dates bear him out. Quezon City regional court Judge Wenceslao Agnir had dismissed the case against Lacson and 23 other PNP officers on March 29, 1999 for lack of witnesses. On March 27, 2001, the PNP referred to Perez the affidavits of two police captains who said they’d been bothered by their conscience all these years with their first-hand knowledge of the May 1995 rubout. One swore he had led the assault team that raided the hideout of KB bank robbers in Superville Subd., Parañaque, on the night of May 17, and arrested eight suspects. The other attested that he had led the backup team that took the eight to Camp Crame, and onto Commonwealth Avenue, Quezon City, at dawn of May 18 for a mock shootout. On the basis of the new testimonies, Perez ordered a routine reinvestigation in April 2001. Lacson ran to the Manila court for a restraining order against double jeopardy, but the court denied it. He then went to the Court of Appeals, which upheld him in August 2001 on the basis of Rule 117, Section 8 of the Rules of Court.

Rule 117, Section 8, states: "Provisional dismissal. A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party...With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived."

Solicitor General Simeon Marcelo took the appellate court ruling to the Supreme Court in September 2001, arguing that the Rules of Court is subordinate to the Revised Penal Code, which holds a 20-year prescription for murder. More so since the Rules were promulgated on December 1, 2000, well after the Code’s passage and case’s dismissal. But the justice system leans on the rights of the accused and imposes the burden of proof and procedure on the accuser. Thus, the Supreme Court ruled Tuesday: "Like any other favorable procedural rule, this new rule can be given retroactive effect."

But that’s where the dates end to matter and Perez begins to exult. The Supreme Court rules only on questions of law and Constitution, not on facts of the case. That’s for lower courts to determine. The Tribunal did not have sufficient data on whether Agnir’s provisional dismissal of March 29, 1999 had the express consent of the accused or if the offended parties were duly notified. It thus remanded the case to the Quezon City court Branch 81, now headed by Judge Ma. Theresa Yadao since Agnir was promoted to the Court of Appeals in August 1999. For Perez, that means his prosecutors can argue against Agnir’s faulty dismissal and consequently revive the murder case against Lacson.

Marcelo had told the Supreme Court when he brought the case to it that the dismissal did not follow procedures. It was based on the flight of one witness and the recantation of two others. PNP Senior Police Officers-2 Eduardo delos Reyes and Corazon dela Cruz had earlier sworn that they were with the raiding-rubout operation from dusk of May 17 to dawn of May 18, 1995. They had told a Senate tri-committee inquiry that they were under orders to write a false after-operation report to cover up the murders. News photographer Armando Capili also swore he had covered the raid and seen the suspects taken alive, if not kicking. For years, they were in the government’s Witness Protection Program, waiting for a court trial to begin after endless twists and turns at the Ombudsman and Sandiganbayan. In late 1997, soon after the PNP brass reinstated the dozens of police officers implicated in the murder, delos Reyes suddenly fled to Canada. Days later, dela Cruz and Capili recanted their testimonies and left the WPP. (Two other eyewitnesses remained: Mario Enad who is still with the WPP, and Jane Gomez who left it after a fight with NBI guards.)

Marcelo argued that Agnir shouldn’t have dropped the case in 1999 due to mere recantation of two of five witnesses. He cited jurisprudence that enjoins judges to view recanting witnesses with suspicion, and to put them on the witness to find out if there was travesty of justice behind it. He thus assailed Agnir’s ruling that "as already seen, the documents attached to the Information in support thereof have been rendered meaningless, if not absurd, by the recantation of the principal prosecution witnesses."

While 13 justices of the Supreme Court were deliberating Tuesday, a television station interviewed Lacson’s lawyers, who insisted that there was no monetary inducement for the witnesses to recant. Juxtaposed was Capili, who expressed happiness to be earning a living as a jeepney driver since he left the WPP and gratitude to the accused PNP officers for gifting him with the vehicle.

Agnir did recognize jurisprudence in his 1999 dismissal, but said the KB case was "an exception to the general rule" on recantations. He also had based his ruling on the desistance of the fatalities’ next of kin. This again, Marcelo questioned,. He told the Supreme Court that only seven offended parties, representing eight of the 11 dead, had signed affidavits that they no longer were interested in pursuing their plaint. Of the seven affidavits, Marcelo noted, one was unsigned. And even if the relatives of all 11 did execute affidavits of desistance, he said, Agnir has no proof of due notice to the offended parties before he (Agnir) dismissed the case. Only the lawyer who drafted the affidavits went to court. Perez’s prosecutors would now have to prove this before the Quezon City court, to which the Tribunal has remanded the job of determining the facts.

Both sides are confident of the strength of their cases. Government lawyer Peter Ong and private prosecutor Arno Sanidad believe they can reopen the case based on the continuing plaint of relatives of the three remaining fatalities. Lacson’s lawyers counter that the proof of notice to the offended parties lies in the mere notification of their lawyers.

Lacson says it was a close shave, had the Tribunal not upheld Rule 117, Section 8. But the justices also instructed the lower court to determine when the two-year count begins – on the day of Agnir’s decision to dismiss, or the day the notices were served to the offended parties, or on the day the intervening Rules of Court were promulgated. They further told the lower court to hear the justification of the state prosecutors in their belated revival of the case, if ever. Only then may the court rule on whether to reopen the murder trial, this time of 34 principal coaccused.

Lawyers who’ve been following Lacson’s case say that determining if the Rules of Court were followed would take several months. Judge Yadao admits she can schedule hearings on it only once a week, saddled as she is with 300 other cases. The lawyers add that if trial is reopened, it would take years before a decision of guilt or acquittal is rendered. And this again would take elevations to the Court of Appeals or the Supreme Court at every new twist and turn.

Lacson’s lawyer Sigfrid Fortun acknowledged that the legal battle is far from over: "What is certain is that it is going to take more time, which will ultimately be unfavorable for us." Sanidad, as private prosecutor, says that "at least the Supreme Court opened a chance for us to reopen the case." Marcelo added that his arguments before the Tribunal were part of "firm steps" for justice.

For now, however, Lacson’s opposition partymates prefer to see political color in the case. One senator says President Gloria Arroyo views Lacson as her strongest presidential rival in 2004 and thus wants him put behind bars for murder. To which Sanidad, who has been prosecuting the case from the start, retorts: "How were we to know in 1995 that then PNP-colonel Lacson would become a senator and presidential wannabe? How were we to know that he would enter politics, which he said several times was too dirty for him to engage in?"

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