UPDATE (Philippines): Replacement of a prosecutor required; complaint filed against a judge for grave abuse, violation of code of conduct 

[NOTICE: The AHRC have developed a new automatic letter-sending system using the “button” below. However, in this appeal, we could not include e-mail addresses of some of the Philippine authorities. We encourage you to send your appeal letters via fax or post to those people. Fax numbers and postal addresses of the Philippine authorities are attached below with this appeal. Thank you.]

[RE: UA-72-2005: PHILIPPINES: Prosecutor’s inaction to file murder charges against military officers who killed two people; UP-130-2006: PHILIPPINES: Court judge delays issuance of arrest warrants to military men charged with murder]
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PHILIPPINES: Extra-judicial killings; failure of the justice system; alleged violation of Code of Conduct by a member of the judiciary; delays in adjudication of cases
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Dear friends,

The Asian Human Rights Commission (AHRC) writes to inform you regarding a serious development in the case of a couple killed in Tagum City. On September 26, 2006, charges of homicide had been filed against a military sergeant and his 31 men for their alleged involvement in the killing of Bacar Japalali and his wife Carmen on September 8, 2004 (please see our previous appeal on this case: UA-72-2005). While the victim’s relatives acknowledged the filing of charges, they are shocked to learn that the City Prosecutor Francisco Rivero had been deputized to handle the case. It was prosecutor Rivero who earlier exonerated the respondents on the same case for ‘insufficient proof’.

It can be recalled that on December 17, 2004, City Prosecutor Rivero submitted his resolution to the Office of the Ombudsman for Military and Other Law Enforcement Office (MOLEO) exonerating respondents Sergeant Serafin Jerry Napoles and his 31 men. In his resolution, he declared that the respondents did not commit any abuse in the killing of the Japalali couple. Rivero’s resolution was submitted to the MOLEO for their appropriate actions and recommendation whether or not a charged can be filed in court.

But nine months later, on September 21, 2005, Prosecutor Beda Epres, Graft Investigation and Prosecution Officer II of the Ombudsman, reversed the resolution of prosecutor Rivero and recommended the filing of murder charges against the respondents. Prosecutor Epres found “probable cause” to charge the respondents in court for murder (For details please see our previous appeal: UP-130-2006). On May 11, however, the charges of murder was reduced to homicide after Regional Trial Court (RTC) Judge Justino Aventurado, the judge formerly handling the case, issued a directive to the prosecution panel to amend the complaint of murder into homicide. The prosecution then sent Judge Aventurado’s directive to the Ombudsman for their comment, which was also upheld by the Ombudsman.

According to a report from Task Force Detainees of the Philippines (TFDP-Mindanao), the Ombudsman issued an order on August 16 deputizing to city prosecutor Rivero to stand as a public prosecutor in the case. The amended complaint of homicide had been filed against the respondents before the prosecutor’s office on September 26. On October 27, it is learned that Regional Trial Court Judge (RTC) Danilo Belo of Tagum City had already assumed jurisdiction of hearing the case after it was raffled to which branch the case be tried. This occurring after Judge Aventurado inhibits himself from hearing the case following a motion filed by respondent Sergeant Napoles on September 15 before the Public Attorneys Office (PAO) demanding him to inhibit from the case.

The charge of homicide is a lesser charge than that of murder which was earlier recommended by the Ombudsman. It cannot be determined, however, as to what are the motives of respondent Sergeant Napoles for asking Judge Aventurado to inhibit from hearing the case although the latter’s earlier directive to reduced the charged was to their favour. However, there are observations from a reliable source that Judge Aventurado and Sergeant Napoles are alleged to have attempted to connive with each other.  Also, it is alleged that Sergeant Napole’s petition to the judge to inhibit could be “drama” to clear him from his wrong doings.

In his motion, Sergeant Napoles cited the order issued by Judge Aventurado last May 11 directing the prosecution to amend the charge filed against them from murder to homicide. Judge Justino Aventurado was quoted as saying as grounds after he inhibits: “wherefore, to free any party of worries and apprehensions of impartiality or bias on our part, this court hereby inhibits itself from further acting on these cases. Let the records hereof be returned to the Clerk of Court for re-raffling”.

Prior to inhibiting himself from the case, Judge Aventurado had been accused of wrong doings by the relatives of murdered victims. In a sworn statement issued by Hadji Hamid Japalali, brother of murdered victim Bacar Japalali, he alleged that Judge Aventurado was suggesting that “they are willing to pay” reportedly in exchange of dropping the charges against them. It was Hadji Hamid Japalali’s statement and other documentary evidence that were used in filing the complaint against Judge Aventurado on August 26 with the office of the Supreme Court.

The separate complaints for grave abuse of discretion, for violation of section 6 of the Rule 112 of the Revised Rules of Court and for violation of Code of Judicial Conduct were filed against Judge Aventurado even though he no longer hears the case. Under the Judicial Code of conduct, judges are required to dispose their duties with impartiality and promptness.

Once again, even though the charge was already filed before the RTC, Branch 31, the court has yet to issue an arrest warrant against the respondents. The charges that were filed had criminal case Nos. 14958 and 14959 for homicide. A bail bond of Php 40,000.00 (US$ 804) was recommended by the court for the temporary release of each of the accused once they are served with arrest warrants and are arrested. The further delay on the part of the court in the issuance of arrests warrant is contrary to Section 6 (a) of Rule 112 of the Rules of Court, which provides: “By the Regional Trial Court. – Upon the filing of information, the Regional Trial Court may issue a warrant for the arrest of the accused.”

SUGGESTED ACTION:
Please write letters to concerned authorities requesting their intervention, in particular the replacement of City Prosecutor Francisco Rivero and the immediate issuance by the Regional Trial Court (RTC) of arrest warrants against the respondents. Also, the authorities must ensure that the complaint against Judge Justino Aventurado is thoroughly investigated by an independent body.

 

 

 

 

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