Lacson: DOJ circular may nullify downgraded charges in Espinosa slay

MANILA, Philippines – Senator Panfilo Lacson believes a Department of Justice (DOJ) circular may nullify the resolution that downgraded the murder charges against police officers involved in the killing of Albuera Mayor Rolando Espinosa Sr in November 2016.

Lacson raised this point on Wednesday, July 26, during the Senate inquiry into the reinstatement of Superintendent Marvin Marcos, the police officer who led the team implicated in the Espinosa slay. 

Lacson presented two circulars issued by Justice Secretary Vitaliano Aguirre II. One is Circular 003 dated January 4, 2017, transferring the power to handle petitions for review from state prosecutors to DOJ undersecretaries, among them Undersecretary Reynante Orceo.

Using this power, Orceo overturned an earlier ruling of a special panel of prosecutors and downgraded to homicide the murder charges against Marcos and 18 others in his team who were involved in the raid on Espinosa's Leyte jail cell. Aside from the mayor, inmate Raul Yap was also killed in the operation that the National Bureau of Investigation, to this day, deemed to be "rubout."

Lacson, chair of the committee on public order and dangerous drugs, pointed out that Aguirre also issued Circular 19, which set the implementing guidelines for Circular 003.

Lacson, quoting parts of Circular 19, said: "'These guidelines shall cover petition for review filed from July 1, 2016, until December 31, 2016, all Motion for Reconsiderations filed during the same period regardless of the date of petition for review, and all cases under automatic review only.' Naka-highlight pa 'only' ('only' is even highlighted)."

The special panel of prosecutors issued the resolution that found basis to file murder charges against Marcos and company on March 2, 2017. Marcos and the other respondents filed their petition for review only on April 5, 2017.

"My question is, would that invalidate your resolution downgrading murder to homicide, kasi hindi covered ng Department Circular, hindi saklaw 'yung period, kasi 2017 na ginawa (because it's no longer covered by the Department Circular, it's not covered by the set period, because it was filed 2017)," Lacson asked Orceo who attended the hearing.

Lacson also pointed out that all Department Circulars are uploaded on the DOJ website except for one – Circular 19, which supposedly sets the period for undersecretaries to handle petition for reviews.

"Itong Department Circular 19 wala sa website 'nyo (Department Circular 19 is not on your website), but my staff is very resourceful," Lacson quipped. 

Rappler had asked the DOJ for a copy of Circular 19.

Question of validity

In his defense, Orceo quoted a subparagraph of Circular 19.

"For purposes of existing petitions for review, covered by these guidelines, existing Department Orders and other assignments made by the Secretary are applicable unless the same is revoked," Orceo said.

He added, "I believe that undersecretaries are still authorized to resolve petition for reviews, considering these circulars."

But Lacson could not be convinced, saying Circular 19 was issued precisely to set the guideline for the earlier circular.

"Kaya nga clinarify, nilimit niya 'yung authority 'nyo within the period specified. Ni-revoke niya ba 'yun? Hindi a. Kaya tanong ko, valid ba 'yun (downgrade)? Pagka ganoon, coming from a layman, illegal ang act mo," Lacson said.

(That's why it was clarified, he limited your authority within the period specified. Did he revoke it? No, right? That's why my question is, is it [downgrade] valid? Because coming from a layman, I would say your act was illegal.)

Acting Prosecutor General Jorge Catalan Jr, who was also in the hearing, said they will "make a further study into whether it is invalid."

Senator Paolo Benigno "Bam" Aquino IV asked whether prosecutors can still backtrack on the homicide and re-file murder charges.

Senior Assistant State Prosecutor Lilian Alejo, speaking only in terms of procedure, said that since Marcos and his team have been arraigned on homicide, what prosecutors can do is to file a motion to withdraw the information.

Alejo was the chairperson of the special panel that found basis to charge Marcos and company of murder, which she stood by during the Senate inquiry. Their resolution was overturned by Orceo on May 29, marking another flip-flop by the DOJ.

Under pressure?

Senator Grace Poe insinuated that the panel of prosecutors might have been pressured on the issue. The prosecutors of the National Prosecution Service (NPS) is under the DOJ.

"Is it true that you are up for promotion? Are you affected by your first decision na na overturn, mukha atang binabalikan kayo (It looks like this is being used against you)?" Poe asked Alejo.

Alejo denied that promotion had anything to do with the issue.

"Ang implikasyon nito, hindi lamang sa liderato ng PNP. Ang gusto natin i-maintain ang independence hindi lang ng PNP, but most especially, in the DOJ for our state prosecutors," Poe said.

(The implication is not only on the PNP leadership. We want to maintain the independence not only of the PNP but also of the DOJ, for our state prosecutors.)

Referring to Orceo's resolution, Poe added: "With one different opinion naoverturn ito (this was overturned), the implication of that is more than overturning the decision, particularly with the examples being set in the DOJ."

Aguirre has already distanced himself from the charges downgrade saying "I was not the one who wrote it. I was not the one who signed it."  (READ: Senators hit Aguirre for downgrading charges vs Espinosa slay cops

The downgrading of the charges to homicide allowed the respondents to post bail, and paved the way for their reinstatement. President Rodrigo Duterte himself had announced that he ordered the reinstatement of Marcos, which was carried out swiftly  by National Police chief Director General Ronald dela Rosa. (READ: Dela Rosa admits Supt Marcos' reinstatement 'not so normal')

Senators who conducted the hearings on the Espinosa slay case had recommended murder charges against Marcos and his team had strongly criticized their return to duty. (READ: 'Put*ng i*a!': Lacson, senators slam reinstatement of Supt Marcos) 


Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.