Court clears arrest warrant
for Esperat slay suspects

by The Center for Media Freedom and Responsibility

THE TRIAL of the alleged masterminds in the killing of journalist Marlene Esperat will resume as the 21st division of the Philippine Court of Appeals (CA) – Mindanao station denied their petition for certiorari and prohibition seeking the dismissal of the charges against them on 19 August 2011. One of the private prosecutors received the decision on 9 September 2011.

The pending resolution of the petition for certiorari and prohibition was the reason for the same court ordering in December 2009 to temporarily stop the trial of alleged masterminds Osmeña Montañer and Estrella Sabay, as well as the service of arrest warrants on the accused.

Esperat was killed on 24 March 2005 in her house in Tacurong City, Sultan Kudarat. During the trial against the gunman and his accomplices, a former accused turned state witness pointed to Montañer and Sabay as the ones who allegedly ordered the killing because of Esperat’s exposés on allegedly anomalous transactions at the Department of Agriculture in Region XXII, where they were the Finance Officer and Regional Accountant, respectively.

Montañer and Sabay claimed in their 21 May 2009 petition that former Tacurong City Regional Trial Court Branch 20 Judge Milanio Guerrero, the People of the Philippines, and Esperat’s sister Valmie Garcia Mariveles committed grave abuse of discretion under Rule 65 of the Rules of Court.

They alleged that: (1) “respondent judge gravely erred in denying petitioner’s motion to lift the warrant of arrests”; (2) “re-filing of the murder case against petitioners is barred by Section 8, Rule 117 of the Rules of Court, as interpreted in People of the Philippines, et. al. v. Panfilo M. Lacson Case”; and (3) “the dismissal of the same murder case against petitioners on 31 August 2005 has attained finality, thus could no longer be disturbed”. (Section 8 refers to provisional dismissal, which states “A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.”)

In denying the petition, Associate Justice Romulo Borja said in his 26-page said it constitutes forum shopping, a term referring to “the act of filing the same suit in different courts. It is an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes.” (Philippines Law Dictionary)

This was the third petition for certiorari Montañer and Sabay had filed since the reopening of the investigation of the murder charges against them around September 2007. Montañer and Sabay earlier filed separate petitions for certiorari and prohibition before the Manila and Visayas (Cebu) stations of the CA.

The petition filed before CA Manila was denied, while that filed before CA Cebu was granted. CA Manila ruled there is no prohibition against the re-filing of the murder case while CA Cebu ruled that the Regional Trial Court of Cebu City, then hearing and trying the murder case, had no jurisdiction over the same. The latter ruling prompted the prosecution to re-file the case in Tacurong City, Sultan Kudarat, which was then raffled to the sala of Judge Guerrero. (The Supreme Court eventually ordered the transfer of the case to the Regional Trial Court of Makati City.)

“They are now seeking a favorable judgment on issues they had previously received adverse judgment,” the court said.

It explained that “The heart of the present petition is petitioners’ insistence that the filing of the information in Criminal Case No. 3064 is time-barred under Section 8, Rule 117 of the Rules of Court and that the dismissal of the same murder case against the petitioners on August 31, 2005 had attained finality and can no longer be disturbed. These have already been addressed and resolved by Us acting through Our Eighth Division in Our Decision in CA G.R. SP No. 101348.” (CA G.R. SP No. 101348 refers to Montañer and Sabay’s November 2007 petition for certiorari and prohibition filed before the Manila station of the CA.)

It added that “Even if we were to disregard, arguendo, petitioners’ forum shopping, the present petition would nonetheless be dismissed on the merits of the claims.” It added that “The respondent court did not err, much less act with grave abuse of discretion, in denying their ‘Motion to Quash and the Supplemental Motion to Quash.” (See “Judge denies motion for reconsideration by alleged masterminds”)

The court also said that the time-bar rule cannot be applied on the case against Montañer and Sabay as elements of “provisional dismissal” and “express consent” are missing.

The petitioners’ “claim of grave abuse…in the issuance of the arrest warrant” was also found to be baseless. “The language of the Order clearly shows that the respondent judge made his own personal determination of the existence of probable cause by examining not only the prosecutor’s report but also his supporting evidence.”

Other members of the 21st Division were Associate Justices Edgardo Lloren and Carmelita Salandanan Manahan.

Note: Certiorari is “an extraordinary remedy to correct an actuation of a judge who has acted without jurisdiction or clearly in grave abuse of discretion, and not to correct errors of procedure and/or mistakes in the judge’s findings or conclusions.” Prohibition, on the other hand, is “a writ issued commanding a tribunal, corporation, board, or person…to desist from further proceedings when the same are without or in excess of jurisdiction.” (Philippine Law Dictionary, Moreno F., 1988 Reprint:
April 2005)

The Center for Media Freedom and Responsibility, a founding member of the Southeast Asian Press Alliance, strives to promote ethical journalism and to protect press freedom.