UPDATE (Philippines): Court judge delays issuance of arrest warrants to military men charged with murder 

Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information that Regional Trial Court (RTC) Judge Justino G. Aventurado of Tagum City, Mindanao has yet to issue arrest warrants for a military official and his men charged with murder. Please see our previous appeal to read the background of this case: UA-72-2005. Aventurado has failed to issue the warrants despite a prescribed period having now passed.

According to a report from the Task Force Detainees of the Philippines (TFDP)-Mindanao, murder charges were filed against Sergeant Napoles and his 31 men before the Office of the City Prosecutor in Tagum City on 10 September 2004. Talib Japalali, brother of murdered victim Bacar, filed the said complaint. On September 29, the findings by Provincial Crime Laboratory Office on the paraffin test it conducted on the victim’s body, Bacar Japalali, confirms he was negative of gunpowder nitrates. It disproves claims by the military men that Bacar had exchanged gunfire with them when they opened fire at his house in Barangay (village) Bincungan, Tagum City on 8 September 2004.

On 25 October 2004, Rodolfo Baluyo, father of Bacar’s wife Carmen who was also killed, executed an affidavit to the regional office of the Commission on Human Rights (CHR XI) in Davao City. Baluyo filed the complaint together with Talib who submitted relevant documents of the case. The Commission, however, have failed to conduct an investigation despite a formal complaint having been filed with their office.

On 17 December 2004, City Prosecutor Francisco Rivero submitted his resolution regarding the murder case filed in his office to the Office of the Ombudsman for Military and Other Law Enforcement Office in Quezon City for their review and recommendation. In his resolution, however, Prosecutor Rivero exonerated the respondents, Sergeant Napoles and his 31 men, from any liabilities for the death of Bacar and his wife Carmen–who was three months pregnant at the time her death. According to Prosecutor Rivero there was no sufficient proof that the respondents committed abuse in their performance of their duties.

The resolution by Prosecutor Rivero, however, was overturned by Prosecutor Beda A. Epres, of the Graft Investigation and Prosecution Officer II of the office of the Ombudsman for the Military. In Prosecutor Epres resolution on 21 September 2005, she found the following arguments below for the City Prosecutor’s Office to consider;

 “a. Perusal of the records show that the body of deceased Bacar Japalali was still in bed inside a mosquito net and per chemistry report no. C-026-2004 DN, the qualitative examination conducted on the pair of paraffin cast taken from both hands of the deceased yielded a negative result to the test for gunpowder nitrates. These facts would definitely belie respondent’s claim that there was a firefight.

      Furthermore, the recovery of fifty five (55) empty shells of M16 rifles two (2) empty shells of M-14 rifle and one (1) dud M203 grenade clearly show that the operation was an overkill

 b.  There exists a unity of purpose and unity in the execution of the unlawful objective of all the enlisted personnel who participated in the combat operation, should be held liable for two (2) counts of Murder for the death of spouses Bacar and Carmen Japalali as the killing was attended by treachery and with the aid of armed men.”

On 24 January 2006, information charging the respondents with murder was filed before the Regional Trial Court (RTC) in Tagum City and was docketed as criminal case number 14958 and 14959. It was the sala of Judge Aventurado that took over to preside in the case after it was raffled.

On February 10 it was learned from the Office of the Clerk of Court (OCC) that the case folder had just been given to Judge Aventurado for his review and study a day before. On March 3 Talib went to the office of Judge Aventurado to follow up whether the warrant of arrests had been issued. He was told however by the officer-in-charge that the case folder is still with Judge Aventurado for his review and study. On March 8 and 15, similar explanations were given to the victims’ family and the TFDP staff– the case folder is still with Judge Aventurado’s table for his review and study. It was only on March 20 when Judge Aventurado issued an order to the Prosecution office to submit additional evidences in accordance with Section 6 of Rule 112 of the Rules of Court.

Under Section 6 on Rule 112 of the Revised Rules of Court, it stipulates as to “ when [a] warrant of arrest may be issued”;

“By the Regional Trial Court – within ten (10) days from the filing of the complaint or information, the Judge shall personally evaluate the resolution of the Prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest.

In case of doubt on the existence of probable cause, the Judge may order the Prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint or information.

On April 4 the City Prosecutor’s Office issued an order received by Talib Japalali on April 25 directing him to submit additional evidence within five days. On April 28 Talib submitted additional evidence to the Prosecutor’s office, which was likewise submitted to the court on the same day.

On May 11 Judge Aventurado issued another order directing the Ombudsman for the Military to amend the information of the charge it filed from murder to homicide. Judge Aventurado had given credence to the affidavit of one of the respondents, Sergeant Napoles, claiming he had ordered his men that victim Carmen, who was seriously wounded, be taken to hospital before she died. Judge Aventurado was unable to acknowledge the affidavit by one of witnesses, Ladia, who claimed the military opened fire when he tried taking Carmen to hospital.

For one week the victims’ families and support groups consistently conducted follow ups with the Regional Trial Court (RTC), Branch 2 as to whether the arrest warrant had been issued but none had. They were told by court employees to either identify the accused military men so that a warrant of arrest maybe issued or the case is still pending for study by Judge Aventurado.

On May 30 the families of the victims with support groups lodged a protest against Judge Aventurado near the Hall of Justice office questioning his impartiality and independence and the performance of his duty as the presiding Judge and member of the Judiciary.

In this case, had the Ombudsman for the Military and Other Law Enforcement Offices not overturned the resolution by City Prosecutor Rivero of Tagum City exonerating the respondents from liability, the families would have been denied the possibility of seeking justice for the death of the victims. In addition, the Court Judge handling the case is delaying the issuance of arrest warrants despite the prescribed period having passed. The order of Judge Aventurado on May 11, which directed the Ombudsman for the Military to amend the case from murder to homicide, raises serious concerns that he may have been acting partially in performing his duties.

Judge Aventurado’s is also alleged to have been employing delaying tactics in the case by the victims’ families. Such an act is a violation of the Code of Judicial Conduct. Canon 1 Rule 1.02 and Canon 3 Rule 3.05 stipulates that a Judge should administer justice impartially and should dispose of a court’s business promptly by deciding on a prescribed period of time for this to be done.

SUGGESTED ACTION:

Please write letters to the concerned government agencies requesting for immediate intervention into this case. Regional Trial Court (RTC) Judge Justino G. Aventurado must act on this matter without delay by issuing arrest warrants. Please also write to the Office of the Ombudsman for Military and Other Law Enforcement Offices and request him to respond to the order of Judge Aventurado with urgency. It is essential that the Ombudsman for the Military act on the court’s order immediately so that the case progresses in court. An independent inquiry into the allegations of Judge Aventurado’s delay in issuing the arrest warrants must be conducted. Should there be negligence on his part, he must be held liable. Additionally, the regional office of the Commission on Human Rights (CHR XI) in Davao City must be investigated and answer to why it failed to investigate this case despite a formal complaint filed with them.

Automated email letters can be sent by the AHRC Urgent Appeals on-line support system. To support this appeal please refer to http://www.ahrchk.net/support.php?ua=UP-130-2006. For those contacts without an email address, we ask that you still write a letter and post or fax this. If you have any problems or questions using this system, please feel free to contact us at ua@ahrchk.org.

 

To support this case, please click here: SEND APPEAL LETTER