Why CA dissenters call Joel Reyes freedom 'premature, preposterous'

MANILA, Philippines – The family of slain broadcaster and environmentalist Gerry Ortega waited a long time before they saw primary suspect Joel Reyes behind bars.

Now, they welcome 2018 with a huge setback.

Reyes was set free, and the Court of Appeals (CA) decision practically resets 7 years' worth of proceedings. 

The CA’s former 11th Division of 5 voted 3-2 to free Reyes, with Associate Justices Marie Christine Azcarraga-Jacob and Maria Filomena Singh dissenting.

Singh said it was "premature" of her colleagues to rule without even going to trial first, while Jacob called part of the decision "preposterous".

Here’s why.

Testimonies

Ortega was shot and killed in Puerto Princesa in January 2011. Investigation quickly began and by February 2011, alleged operations head Rodolfo “Bomar” Edrad named Reyes, former governor of Palawan, the mastermind.

Edrad said he was hired as security detail of Reyes in 2010. That same year, in December, Edrad said he got instructions from Reyes to mobilize people to kill Ortega.

Arwin Arandia, an accomplice, said that after Ortega was killed, he and Edrad went to a house in Ayala, Alabang where he saw the name “Joel T. Reyes” near the house’s garage. Dennis Aranas, another accomplice, said he was told by his recruiter that they were working for Reyes. The gunman, Marlon Recamata, said he worked for Edrad whom he believed was working for someone in Palawan.

Aranas died inside his jail cell in Quezon in 2013. (READ: TIMELINE: Gerry Ortega murder case)

The witness statements were the basis of Puerto Princesa Regional Trial Court (RTC) Branch 52 to order the arrest of Reyes, who went into hiding for 3 years before being caught in Thailand in 2015.

What did the CA say?

In freeing Reyes, the CA majority said that Puerto Princesa RTC Branch 52 had no basis to find probable cause to order Reyes’ arrest.

Why? “The RTC heavily relied on the prosecution witnesses’ sworn statements. Such reliance, however, was misplaced,” said the decision penned by Associate Justice Normandie Pizarro, with concurrences from Associate Justices Danton Bueser and Victoria Isabel Paredes. 

The CA explained that no other statement aside from Edrad’s directly implicated Reyes. There is a rule called res inter alios acta, which in essence means, the statement of an accused cannot be taken against another co-accused. In simple terms, Edrad’s admission cannot be taken against Reyes.

This rule is set aside, however, if there is conspiracy. Justice Singh believes that the statements of other accomplices sufficiently establish conspiracy.

There is also the statement of Reyes’ brother Mario Joel that he was instructed by his brother to give money to Edrad after Ortega’s shooting.

For the CA majority, it “should not be construed to mean that he paid the latter for the killing of Ortega for his act of doing so could also mean that he is innately generous.”

Justice Jacob said that to brush it off as generosity is “preposterous under the circumstances.”

‘Premature’

This case has gone back and forth over the years. Reyes’ lawyers found an opening when then justice secretary Leila de Lima created a 2nd panel of prosecutors, after the 1st panel cleared Reyes. It was the 2nd panel that charged Reyes before the RTC.

For years, Reyes’ camp filed several motions to question the irregularity of creating a 2nd panel. If the creation is nullified, there is no panel, and therefore no case.

Ortega’s family scored a major victory when in 2016, the Supreme Court categorically declared that De Lima was authorized to create the 2nd panel. The SC also ordered Puerto Princesa RTC Branch 52 to proceed with the case.

Reyes’ petition before the CA repeated the De Lima argument. But because the SC already made a decision, the CA rendered it moot.

Instead, the CA tackled the other prayers in the petition that largely touched on the merits of the case. In saying that Edrad’s testimonies are insufficient, the CA stopped the RTC proceedings altogether.

Justice Singh pointed out that trial has not even started yet. “As such, there is no occasion to rule on the admissibility of evidence, much less their weight,” Singh wrote.

But the CA majority sees it the other way: “It is the duty of this Court to shield the innocent from senseless suits right from the start. Why wait for trial if there is no evidence? Why proceed to trial if there is no evidence?” Pizarro wrote in his ponencia.

“The reasons cited by the ponente touched on plainly evidentiary matters which, as already mentioned, are properly threshed out only during a trial and prematurely at this stage,” Singh said.

‘Second chance’

Reyes’ lawyer Demetrio Custodio said that the only recourse now for the Ortegas is restart investigation, which he said would be difficult, seeing that the CA already ruled that Edrad’s testimony is insufficient.

Presidential Spokesperson Harry Roque, once a lawyer to the Ortegas, believes that the government, through the Office of the Solicitor General (OSG), can still pursue a reversal of the CA decision.

"I find it alarming that the CA decision, number one, overruled an earlier SC decision and, number two, arrogated its own judgment for that of the Regional Trial Court that had the opportunity to physically accept the evidence, observe the demeanor of the witnesses and concluded there was, in fact, probable cause," Roque said.

“Call it a second chance afforded to him by God, or a lucky three-point play for him to use a common street lingo, or a miracle in his favor, the petitioner must by all means be exonerated from the charge,” the CA majority said.

But is it a miracle? Not yet, as Reyes has been sentenced to 6-8 years in jail for a graft conviction at the anti-graft court Sandiganbayan. It is currently on appeal, so Reyes still enjoys liberty until the Sandiganbayan comes out with a decision on whether to acquit him also, or send him back to prison.

Whatever should happen to that case, Reyes still faces another 36 counts of graft for P1.5 billion worth of grossly incomplete projects in Palawan sourced from the Malampaya funds.

Somehow, the Ortegas’ bid for justice continues in the Malampaya case because it was Gerry Ortega who first exposed the scam, tirelessly pursuing scoops on corruption in Palawan, until one day in January 2011 when a bullet shot him dead.

Come January 24, the Ortegas will observe Gerry’s 7th death anniversary.

“Seven years of fighting for justice and press freedom,” his daughter Mika said, “we will need time with our lawyers to study and plan our next move, but until then, we ask everyone to remain vigilant.” – Rappler.com

 

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 lian.buan@rappler.com or tweet @lianbuan.

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