LENIDO LUMANOG or “LEN” for short, the leading figure of the so-called “ABADILLA 5,” was buried on 15 September 2016. He died on 6 September 2016 at the National Kidney and Transplant Institute (NKTI) after a lingering kidney condition incurred while already in prison and shortly after turning 60 on 2 September 2016. He was at NKTI still serving a sentence of reclusion perpetua (20 years and 1 day to 40 years imprisonment) imposed on the “Abadilla 5” (also SPO2 Cesar Fortuna, Rameses de Jesus, Joel de Jesus and Augusto Santos) who were convicted for the 13 June 1996 murder of ex-Colonel Rolando Abadilla. The latter was ambushed by several gunmen urban guerrilla-style while he was in his car caught in traffic along Katipunan Avenue, Quezon City (in another sense of “traffic kills”). The original sentence promulgated by the Regional Trial Court (RTC) Branch 103 Quezon City Judge Jaime Salazar Jr. was death (but in 2006, RA 9346 prohibited the imposition of the death penalty in the Philippines). Upon learning of Len’s death from longtime A5 advocate Fr. Roberto Reyes, one of his campaigners for release on executive clemency Amyliza Balliao of the London-based Philippine Jury Campaign exclaimed “They killed him.” In a manner of speaking, the criminal justice system killed him – more precisely, killing him softly and slowly over a period of 20 years, 2 months and 18 days — counted from his police apprehension on 20 June 1996 and already in the early range of reclusion perpetua.
The full story of the saga of Len, the A5 and their families in their quixotic quest for justice and later even just clemency and the freedom these would bring is worth telling and retelling. Many separate news chronicles of that story can be found in the pages of the Philippine Daily Inquirer since June 1996. The Inquirer led by then managing editor Jose Ma. D. Nolasco notably did an unprecedented and award-winning four-part special report (actually more, including an epilogue, an editorial, an editorial cartoon, and a De Quiros column piece) in December 2012 with the lead article “Abadilla 5: Story straight out of martial pages” by Stella O. Gonzales and Juliet-Labog Javellana. Probably the most eye-catching and attention-calling part of the series was the second part where a “Senior cop talks about the art of torture” and the several graphic sketches by Inquirer artist Albert Rodriguez illustrating the forms of torture used by policemen on the A5. The third part highlighted that the “Judge junked ABB angle as PNP feared losing face.” ABB refers to the Alex Boncayao Brigade, the Manila-Rizal urban guerrilla (“sparrow”) unit of the New People’s Army, and which had claimed responsibility for the Abadilla ambush-killing. After the trial and promulgation of judgment of conviction, the ABB issued statements reiterating its claim and absolving the A5 as “fall guys” of the police. And then, one top leader of the ABB arranged to turn over to Fr. Robert the Omega wristwatch which its ambush team took from the slain Abadilla. The Inquirer series was capped by an epilogue that the A5
“Case raises doubts on guilt of convicts.” Unfortunately, the Court of Appeals (CA) and the Supreme Court (SC) did not see that way.
There were at least two other major reports and publications on the case of the A5. Actually ahead of the Inquirer special report in highlighting, internationally at that, the torture aspect of this case was the October 2000 Amnesty International (AI) report “The Rolando Abadilla murder inquiry – an urgent need for effective investigation of torture.” This report based mainly on the field work of AI researcher Timothy Parritt has been the best analysis of the A5 torture and its investigation, and the role herein of several government agencies (the CHR, DOJ and the Courts), ending with a number of recommendations to the Philippine government, based on a belief that “the conduct of the Abadilla murder investigation illustrates a wider failure of the laws, procedural safeguards and institutions established to protect fundamental human rights in the Philippines.” At least one of the recommendations we shall come back to later. The other major publication on the case of the A5 was the 2009 Asian Human Rights Commission (AHRC) book Abadilla 5 FAMILIES: When will their waiting end? which focused on the journey of the five families “… towards the Fullness of Life,” as Fr. Robert put it, as they accompanied the investigative and judicial saga of the A5. He documented the accounts of 14 family members (including four wives, a grandmother and a granddaughter) of the A5. In the stories of the A5 and their families there is much human interest and also much testimony about the human spirit. One cannot but note among others how Len in April 2003, after eighth months of waiting for a kidney donor, finally decided to receive one from his wife Malou, both at age 46. That his new kidney from a non-blood relative lasted him more than 13 years was a miracle of sorts more than he could ask for. But no miracles for him and the A5 would come from the criminal justice system.
It was a criminal justice system that the AHRC, led by its executive director Basil Fernando, in a special report February 2007 pointedly described as “rotten.” In his Foreword to above-said AHRC book Abadilla 5 FAMILIES, he said well that “The matters involved in delays of justice are not merely matters of jurisprudence there are also matters of ethics and morality.” He and his Filipino deputy executive director Danilo Reyes had been giving special attention to the case of the A5, particularly its torture aspect and the undue delays in its prosecution against the police officers concerned, in contrast to the speedier than usual prosecution of the murder case against the A5. In another special report in March 2011, the AHRC focused on torture in the Philippines and “the unfulfilled promise of the 1987 Constitution,” This included a comparative case analysis of the contradictory SC rulings in the A5 and Vizconde Massacre cases when it came to the “positive identification” by a lone purported eyewitness and to the probative value of forensic evidence. Fortunately or unfortunately, the SC rulings in the A5 cases form for now the main and most recognizable part of the legal legacy of the A5.
Len may be gone and buried but his name is immortalized in no less than three SC Decisions in 2001 on the A5’s post-RTC Judgment certiorari petition on non-admission of proffered evidence on the ABB angle (Lumanog vs. Salazar, Jr., 364 SCRA 719) and in 2010 and 2011 on the automatic review of the A5 convictions for murder (Lumanog vs. People, 630 SCRA 42 and 642 SCRA 248). I had the privilege of serving as long-time defense counsel of Len and the A5 starting in 1999 during the reconsideration stage of the RTC Judgment of conviction in the A5 case for murder, until my entering the judiciary in 2010. For the automatic review, referred first to the CA before it was finally determined in the SC, I worked with fellow Camarines Sur lawyer Vicente Dante P. Adan. Other fellow lawyers I also had the privilege of joining forces with while representing accused Lumanog and Santos during the automatic review stage were Dante S. David for accused Joel de Jesus, Arlene G. Lapuz-Ureta for accused Fortuna, and Grenalyn V. Virtusio for accused Rameses de Jesus. Of course, other defense lawyers had come before us in the trial stage at the RTC. In addition, I spent equally frustrating years, pursuing as a second front of legal struggle of the A5, the long-playing preliminary investigation mainly at the DOJ of the A5’s torture complaint against certain police officers.
One bright spot, however, during this period was a successful Communication No. 1466/2006 on behalf of Len and Augusto Santos filed by myself and then Geneva-based (now Davao City-based) Filipina lawyer Cecilia Jimenez(-Damary) with the UN Human Rights Committee in Geneva mainly on the issue of delay in the disposition of the appeal from the RTC conviction of the A5 in 1999. In the said Committee’s Views adopted on 20 March 2008 and released on 10 April 2008, and now part of international human rights jurisprudence, it ruled that Len’s and Augusto’s rights to “be tried without undue delay” under Article 14, paragraph 3 (c) of the International Covenant on Civil and Political Rights have been violated with “the delay in the disposal of the appeal, more than eight years.” The ruling reinforces human rights jurisprudence that this right covers “also the time until the final judgment on appeal.” It indicated a need to review the SC’s 2004 Mateo ruling which provided for intermediate review by the CA. It further indicated the Philippine State’s “obligation to provide the authors [Lumanog and Santos] with an effective remedy, including the prompt review of their appeal before the CA [at that time] and compensation for the undue delay. The State Party is also under an obligation to take measures to prevent similar violations in the future.” This kind of international ruling should benefit many more, including around the world, if not the A5 themselves. As it is, they have not been given by the Philippine State “compensation for the undue delay.” And may likely no longer be given any if the State instead goes by the SC ruling in its 2010 Decision in the main A5 case for murder that “Under the circumstances, we hold that the delay of (4) four years during which the case remained pending with the CA and this Court was not unreasonable, arbitrary or oppressive.” One bright spot of a legal victory there was, but overshadowed by more dark spots of legal defeats and setbacks, including grave abuse by delay in disposing cases, like in the A5 torture case.
And so it seems, not even a UN Human Rights Committee ruling and attention-calling national (Inquirer and other media outlets) and international (AI and AHRC) special reports on the A5 case, not to mention numerous Fr. Robert-led A5 justice campaign rallies before various government offices and advocacy runs in the streets, appeared to have made any difference or impact when it came to the SC, the DOJ and other concerned government agencies. For now. Things may (as they have to) change, if that indeed is coming in terms of judicial and legal profession reform. But the A5 saga surely gives a sense of what such reform is up against with the seeming intractability of the Philippine criminal justice system. The SC 2001 Decision in Lumanog vs. Salazar, Jr. (364 SCRA 719) upheld the RTC orders in January 2000 denying admission of defense post-Judgment proffered evidence on the ABB angle as mostly not being “newly discovered evidence” that would warrant a new trial, except for the Omega wristwatch that Fr. Robert had presented as turned over to him by a top ABB leader. This was to show that it was the ABB and not the A5 (who had no connection to the ABB) which was responsible for the Abadilla ambush-killing. But the Court considered this as “hearsay without the testimony in court of the said alleged member of the ABB” and that “the wristwatch allegedly belonging to the late Col. Abadilla is immaterial to the case of murder.” Incidentally, Fr. Robert was assisted in this case by my fellow human rights lawyer (and later Bayan Muna party-list representative) Neri Javier Colmenares. It was a unanimous En Banc Decision penned by Justice de Leon, Jr. of the then Davide Court, no dissents. But the ABB angle which Len among the A5 articulated the most, albeit post-Judgment of conviction, would not die and would resurrect in the automatic review Decisions of the SC.
This time, in 2010 and 2011, the En Banc Decision and Resolution of the Corona Court in Lumanog vs. People (630 SCRA 42 and 642 SCRA 248) on the A5 1999 convictions for murder were not unanimous, but on a split 9-4 vote. The majority Decision was penned by Justice Villarama, with a concurring opinion by Justice Bersamin. The four dissenting votes came from Justices Carpio, Carpio Morales, Abad and Sereno, with dissenting opinions submitted by Justices Carpio and Abad. In fairness and to be clear, the majority Decision, and even the RTC Judgment it reviewed, both disregarded the coerced (i.e. torture-induced) extrajudicial confessions of some of the A5 purported admitting to the Abadilla murder, and actually based their conviction and its affirmance ultimately on the adjudged “credibility” of their “positive identification” by one eyewitness Freddie Alejo, then a security guard near the scene of the crime. It reiterated the familiar rule that “defense of alibi cannot prevail over positive identification.” On the other hand, the majority considered ballistic and fingerprint examination results, which tended to absolve the A5, as “inconclusive and not indispensable.”
The main dissenting opinion by Senior Justice Carpio and the concurring opinion by Justice Bersamin revolved around the admissibility and reliability of an out-of-court/police line-up identification, proper photographic identification procedure under police auspices and finally in-court identification, but they differed in their application of the jurisprudential guidelines on these as regards witness Alejo’s identification of accused Joel de Jesus initially and then the rest of the A5. Justice Carpio most significantly addressed the bearing of the torture aspect even though the A5’s coerced confessions were disregarded as evidence against them: “Moreover, it was clearly established that Joel was tortured in admitting his participation in the crime and in providing the identities of his supposed co-conspirators… The torture, aside from the failure of the police to provide Joel with counsel, renders his extrajudicial confession inadmissible. Significantly, without such coerced confession, the police had nothing to implicate the other accused to murder.” I suspect that the Carpio-Bersamin judicial debate here will be replayed, if not already, in other cases, not necessarily just by the said Justices and not necessarily with the same majority-minority case voting result.
The other dissenting opinion by Justice Abad goes beyond the credibility of the lone eyewitness testimony of security guard Alejo and, to Justice Abad’s credit, picks up the ABB angle which Len through counsel had emphasized in his defense and one that is supported by forensic evidence (not just ABB statements and its turn-over of the Abadilla wristwatch its ambushing team took from him): “One cannot ignore the fact, based on the ballistics report, a slug recovered from the body of Colonel Abadilla matched a slug recovered from the body of a known victim of the Alex Boncayao Brigade (ABB) of the New People’s Army. This is clear evidence of the truth of the ABB’s claim, told the media, that they were responsible for Colonel Abadilla’s death. Again, physical evidence cannot lie; it is a silent witness that could not be housed and bought [like a supposed eyewitness]. Since none of the accused had been identified with the ABB, they could not have been involved in that killing…. The Court should have also taken judicial notice of the fact that, as former head of the dreaded Metropolitan Command Intelligence and Security Group of President Marcos’ Philippine Constabulary, Colonel Abadilla had always been a natural target of the communists’ death squad, the ABB. Indeed, there had been previous reports of its previous attempts to kill him.” It will be recalled that the RTC and then the SC had earlier considered Fr. Robert’s presentation of the Abadilla wristwatch turned over to him by a top ABB leader as “hearsay without the testimony in court of the said alleged member of the ABB.” But in 2014 the SC relaxed its interpretation of the hearsay rule, albeit in a very different context.
In 2014, a strong separate concurring opinion of Justice Brion to an En Banc Decision of the Sereno Court in A.M. No. SB-14-21-J, whereby Sandiganbayan Justice Gregory S. Ong was dismissed for gross misconduct, dishonesty and impropriety, had posited that “The rules on hearsay should be relaxed in disciplinary proceedings against members of the judiciary…. In special situations such as this case, where the illegal transaction is cloaked in secrecy and the dramatis personae include an expert on the intricacies of bribery…” If the rules on hearsay should be relaxed in disciplinary proceedings against members of the judiciary, then it may be argued that with all the more reason should such rules be relaxed where ordinarily hearsay evidence (like that proffered by Fr. Robert based on his meeting with a top ABB leader who was underground, and like the ABB’s authentic written statements claiming responsibility for the Abadilla ambush-killing and absolving the A5 who were not ABB) is substantially corroborated or supplemented by other evidence that are not hearsay (like the ballistics reports on the slugs recovered from the body of Abadilla showing a match with slugs recovered from the bodies of established victims of the ABB, and like the wristwatch taken from the slain Abadilla by the ABB and turned over by it to Fr. Robert) such that the totality of the evidence validates the presumption of innocence of the accused in criminal cases (and shows in the case of the A5 that they did not commit the Abadilla murder). It remains to be seen whether change is coming on the rules on hearsay, but certainly any modernization of the courts should start with the use of more modern or scientific methods that maximize the probative value of forensic evidence over supposed eyewitnesses that are “housed and bought” and easily coached.
It is ironic that while the issue most highlighted about the saga of the A5 was their torture at the hands of the police, it is this aspect that has not seen and will likely not see any resolution. To start with, there was still no Philippine criminal law specifically defining and penalizing torture in 1996 when the A5 through their families made their initial complaints of torture and other human rights violations with the Commission on Human Rights (CHR) and then filed criminal complaints for grave coercion, arbitrary detention, delay in the delivery of detained persons, and maltreatment with the Department of Justice (DOJ). To make a long and tortuous (or torturous) story short, the DOJ finally came out with a preliminary investigation Resolution in 2004 which it forwarded to the Office of the Ombudsman. The latter in turn only in 2011 filed criminal Informations against a reduced number of respondents/lower-ranked police officers for delay in the delivery of detained persons to the proper judicial authorities and maltreatment of prisoners with the Sandiganbayan court where it was docketed as SB-11-CRM-0001-0006. However, it appears that later in that same year, the cases were “ordered withdrawn” by that Court on motion of the Ombudsman Assistant Special Prosecutor for their remand to the Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO). That might well be the end of the A5 torture case in the bureaucratic labyrinth, coming the same year of 2011 as the SC Resolution denying the A5 motions for reconsideration of the SC Decision in Lumanog vs. People affirming their convictions for the Abadilla murder.
Perhaps the only consolation for the torture aspect in the case of the A5 was the enactment in the meantime of Republic Act No. 8745, the Anti-Torture Act of 2009. It will be recalled that among the number of recommendations in the 2000 AI report “The Rolando Abadilla murder inquiry – an urgent need for effective investigation of torture” was that the Philippine government “should designate the Bill defining torture as priority legislation…” Surely, it would not be amiss to say now that the Anti-Torture Act can well be considered part of the lasting legal legacy of the A5. Its actual effective implementation, however, may in turn well be considered their continuing challenge to all concerned.
There is perhaps still one possible legal legacy that may have been left to us by Lenido Lumanog. In December 2014, he and fellow A5 convict Augusto Santos represented by the Timoteo Sapurco and Amyliza Balliao of the London-based Philippine Jury Campaign filed a Communication with the Office the UN High Commissioner for Human Rights (UNHCHR) in Geneva seeking its action for the immediate release of the A5 on the theory that the Philippine President’s power of executive clemency to pardon and thus release imprisoned convicts is not absolutely discretionary and should be “exercised with the objective of preventing a miscarriage of justice or correcting a manifest injustice” as shown in the foregoing account of the A5 saga. This very issue on the parameters of the power of executive clemency could actually very well be the subject of constitutional litigation in the SC. After final conviction by the SC, the only hope left to the A5 for freedom and to rejoin their families after more than 20 years of imprisonment is executive clemency.
The said Communication was made because President Aquino had been sitting unduly long on the matter of executive clemency for the A5 despite the Board of Pardons and Parole recommendation in 2011 for the commutation of their sentences and Justice Secretary Leila de Lima’s recommendation in 2012 for their conditional pardon on the ground of “reasonable doubt” per the strong dissenting opinions of four Justices in the SC about their conviction. But President Aquino, for whatever reason, failed to act on these recommendations until he stepped down from office in mid-2016. We wonder whether change is coming for the A5 on the executive clemency front under the new President Duterte. Len died before seeing the dawn on this front. Hopefully, the rest of the A5 will see that dawn. But the ultimate legacy Len left is perhaps not so much the legal legacy as it is his heroic example of fighting the good long justice fight of his life up to the very end. May he now deservedly rest at least in peace, if not yet in justice.
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SOLIMAN M. SANTOS, JR. is a long-time Bikolano human rights and international humanitarian lawyer. He was counsel for Lenido Lumanog and the rest of the “Abadilla 5” from 1999 to 2010. He is presently Judge of the Regional Trial Court (RTC) Branch 61 in Naga City, Camarines Sur. He is the author of Justice of the Peace: The Work of a First-Level Court Judge in the Rinconada District of Camarines Sur (Quezon City: Central Books, 2015).
The views shared in this article do not necessarily reflect that of the AHRC.
