Aguirre defends Laud vs. CIDG, CHR

SC rules on DDS case: PNP
can search quarry for bodies

TWO YEARS AGO, the existence of the “Davao Death Squad” or DDS was enrolled and confirmed in the dockets of the Supreme Court of the Philippines.

In a decision issued on Nov. 9, 2014, the Supreme Court’s First Division upheld the grant of a search warrant to uncover the bones of six victims who, on the testimony of a first-hand witness, the DDS had killed and buried at the Laud Quarry in Davao City in 2005.

The ruling offers a new window of opportunity for the police and the Commission on Human Rights (CHR) to now resume their investigation into the DDS, on strength of a valid search warrant that has been upheld by the high court no less.

Indeed, the Supreme Court decision had even ordered the PNP in no uncertain terms to go search the Laud quarry. It said in part: “You are hereby commanded to make an immediate search at any time [of] the day of the premises… particularly the three (3) caves (as sketched) inside the said Laud Compound, Purok 3, Brgy. Ma-a, Davao City and forthwith seize and take possession of the remains of six (6) victims who were killed and buried in the just said premises.”

The case: RETIRED SP04 BIENVENIDO LAUD, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent, G.R. No. 199032, November 19, 2014.

The application for a search warrant had been filed by no other than the Philippine National Police (PNP) itself, through Senior Supt. Roberto Fajardo, then head of the Criminal Investigation and Detection Group (CIDG) in the National Capital Region, and who in 2014 would become chief of the PNP-Anti-Kidnapping Group.

In the latest revamp at the police force last July, PNP chief Director General Ronald ‘Bato’ de la Rosa named Fajardo acting deputy director of the Northern Police District.

The new CIDG chief is Senior Supt. Roel Barcena Obusan. He replaced Chief Supt. Victor Deona in July 2016. PCIJ sought Obusan for comment on what CIDG plans to do with the high court’s ruling, but his staff said the chief would have to consult first with CIDG investigation division and check out their copy of the decision.

Lawyer Jackie de Guia, CHR Director for Strategic Communications, for her part said she was not aware of the high court’s ruling but would check with the CHR Legal staff when she returns from fieldwork outside Manila. “It was only the office of then Chair (Leila) de Lima who was privy to all the facts of the case,” said De Guia. “She left in 2010 and the new chair, Etta Rosales, handled the case.”

LAUD vs. PP, GR 199032, Supreme Court

Bones of animals?

Curiously, among the lawyers of petitioner Laud in the case was Vitaliano Aguirre II, who is now the justice secretary.

Last week, Aguirre, still sounding like a defense lawyer for Laud, commented on what had been found in the Laud property years ago, saying, “The bodies did not prove anything. In fact, there were statements that they were bodies of people who were executed during the Japanese occupation.” Some of the skeletons, he added, were probably that of animals.

But it was not Edgar Matobato, the self-confessed hitman of the DDS testifying in the current Senate hearing on extra-judicial killings, who served as key witness in the case before the Supreme Court. Instead, it was someone named Edgar Avasola, who said he helped bury at the six bodies at the quarry owned by retired police officer Laud. PNP documents on the case, however, do not disclose the personal circumstances of Avasola.

On July 6, 2009, a CHR team had managed to enter the quarry in Ma-a, Davao City, by virtue of a search warrant issued by Manila RTC Judge Romulo Lopez.

Since the search warrant did not cover other parts of the Laud property, the CHR team applied for but was denied another search warrant by a Davao City judge, forcing them to get one from Manila.
On July 12, 2009, armed with a search warrant Judge William Simon P. Peralta had issued two days earlier, then CHR Chairperson Leila de Lima herself had visited the Laud quarry with the rest of her team.

The Supreme Court would later note that Judge Peralta, acting as Vice Executive Judge of the Manila-RTC, had “found probable cause for the issuance of a search warrant, and thus, issued Search Warrant No. 09-14407.”

Thirteen days after he issued the warrant, however, later, Peralta revoked it, adding that any evidence obtained by virtue of the search warrant he issued on Jul. 10, 2009, “may be suppressed for being inadmissible for any purpose in any proceeding.”

Quash-warrant motion

By then, another Laud lawyer, Victorio Advincula, had filed an urgent motion to quash the search warrant that allowed the CHR team entry into the area, which had been converted into a firing range. The quarry site yielded a few leg bones, skull parts, and license plates.

Laud, Advincula said, “was not served the search warrant properly nor was he allowed to enter his own property during the first week of the CHR search,” according to a Philippine Star story.

Secretary Aguirre, acting as yet another Laud counsel, had also argued that courts in Manila have “no territorial jurisdiction over the place where the alleged offense was committed.”

No criminal action has yet been filed against his client, Aguirre said, and “clearly, any application for a search warrant should be filed only with the judge within whose territorial jurisdiction the crime was committed.”

“The place of the commission of the offense being Davao City, the (Manila) court clearly had no jurisdiction to entertain any application for, much less issue the search warrant,” he said, adding that police did not substantiate claims that Davao courts would be biased against them.

Aguirre raised more arguments against the issuance of the search warrant.

He said that aside from failing to follow the legal requirements for custody of evidence, the police “also ignored laws on exhumations, provided for under the Sanitation Code (Presidential Decree 856.”
The Sanitation Code, according to Aguirre, “requires the supervision of local health officers in handling exhumed human remains, and any violation of this carries a penalty of up to six months in jail.”

Laud, on the side, also filed an indirect contempt case against de Lima for her public comments about the Davao courts as being “uncooperative, obstructionists and accessories to the culture of impunity.”

The PNP filed a motion to quash the revocation of Judge Peralta’s search warrant. When this was denied, PNP filed a motion for reconsideration on Dec. 8, 2009.

The Manila RTC reiterated its reasons for quashing the PNP’s new motion thus:

• “The People failed to show any compelling reason to justify the issuance of a search warrant by the Manila RTC which was to be implemented in Davao City where the offense was allegedly committed, in violation of Section 2, Rule 126 of the Rules of Court;

• “The fact that the alleged offense happened almost four (4) years before the search warrant application was filed rendered doubtful the existence of probable cause; and

• “The applicant, i.e., the PNP, violated the rule against forum shopping as the subject matter of the present search warrant application is exactly the same as the one contained in a previous application22 before the RTC of Davao City, Branch 15 (Davao-RTC) which had been denied.

CA upholds warrant

Undaunted, the PNP pressed on and filed a petition for certiorari before the Court of Appeals in the case docketed as CA-G.R. SP. No. 113017.

This time around, it met with success. On April 25, 2011, the CA “granted the People’s petition and thereby annulled and set aside the Orders of the Manila-RTC for having been tainted with grave abuse of discretion.”

In the case of heinous crimes such as murder, the CA said law-enforcement agencies have every right in the law to secure search warrants.

The CA ruled: “The requirements for the issuance of a search warrant were satisfied, pointing out that an application therefor involving a heinous crime, such as Murder, is an exception to the compelling reasons requirement under Section 2, Rule 126 of the Rules of Court as explicitly recognized in A.M. No. 99-20-09-SC25 and reiterated in A.M. No. 03-8-02-SC,provided that the application is filed by the PNP, the National Bureau of Investigation (NBI), the Presidential Anti-Organized Crime Task Force (PAOC-TF) or the Reaction Against Crime Task Force (REACT-TF),27with the endorsement of its head, before the RTC of Manila or Quezon City, and the warrant be consequently issued by the Executive Judge or Vice-Executive Judge of either of the said courts, as in this case.”

Too, the CA found that “probable cause was established since, among others, witness Avasola deposed and testified that he personally witnessed the murder of six (6) persons in December 2005 and was actually part of the group that buried the victims – two bodies in each of the three (3) caves.”

The CA also noted that “the Manila-RTC failed to consider the fear of reprisal and natural reluctance of a witness to get involved in a criminal case, stating that these are sufficient reasons to justify the delay attending the application of a search warrant.”

The appeals court gave credence to “the physical evidence of a protruding human bone in plain view in one of the caves, and Avasola’s first-hand eye witness account both concur and point to the only reasonable conclusion that the crime of Murder had been committed and that the human remains of the victims were located in the Laud Compound.”

The CA also debunked Laud’s claim of forum shopping by the PNP, citing that “the prior application for a search warrant filed before the Davao-RTC was based on facts and circumstances different from those in the application filed before the Manila-RTC.”

On to high court

Laud and his lawyers then moved for reconsideration on Oct. 17, 2011, this time before the Supreme Court.

But the high court’s First Division found Laud’s petition to have “no merit.”

At the time, the First Division was composed of Chief Justice Ma. Lourdes Sereno, and Associate Justices Presbitero Velasco, Jr. Teresita J. Leonardo-de Castro, Jose Portugal Perez, and Estela M. Perlas-Bernabe.

The division issued the decision per curiam — in the name of the Court rather than by specific judges, hence the name of the ponente or author was not disclosed.

The high court noted that, soon after the Peralta’s RTC had issued a search warrant, the PNP-CIDG, in coordination with the members of the Scene of the Crime Operatives, enforced it on July 15, 2009. The result: “The search of the Laud Compound caves yielded positive results for the presence of human remains.”

The court’s resolution offered the following facts of the case:

“On July 10, 2009, the Philippine National Police (PNP), through Police Senior Superintendent Roberto B. Fajardo, applied with the Regional Trial Court (RTC) of Manila, Branch 50 (Manila-RTC) for a warrant to search three (3) caves located inside the Laud Compound in Purok 3, Barangay Ma-a, Davao City, where the alleged remains of the victims summarily executed by the so-called ‘Davao Death Squad’ may be found.”

To support the application, the PNP presented Avasola to the RTC, and he “testified that he personally witnessed the killing of six (6) persons in December 2005, and was, in fact, part of the group that buried the victims.”

Judge Peralta then issued Search Warrant No. 09-14407. But five days after the PNP team visited Laud’s quarry, Laud filed an “Urgent Motion to Quash and to Suppress Illegally Seized Evidence” on the following premises:

• “Judge Peralta had no authority to act on the application for a search warrant since he had been automatically divested of his position as Vice Executive Judge when several administrative penalties were imposed against him by the Court;

• “The Manila-RTC had no jurisdiction to issue Search Warrant No. 09-14407, which was to be enforced in Davao City;

• “The human remains sought to be seized are not a proper subject of a search warrant;

• “The police officers are mandated to follow the prescribed procedure for exhumation of human remains;

• “The search warrant was issued despite lack of probable cause;

• “The rule against forum shopping was violated;

• “There was a violation of the rule requiring one specific offense and the proper specification of the place to be searched and the articles to be seized.”

First-hand account

The high court ruled otherwise. “In this case,” it said, “the existence of probable cause for the issuance of Search Warrant No. 09-14407 is evident from the first-hand account of Avasola who, in his deposition, stated that he personally witnessed the commission of the afore-stated crime and was, in fact, part of the group that buried the victims:”

In response to questions from a lawyer, Avasola had testified in court thus:

• Q9-Who are these six (6) male victims who were killed and buried in the caves in December 2005 at around 9:00 p.m.?
• A9-I heard Tatay Laud calling the names of the two victims when they were still alive as Pedro and Mario. I don’t know the names of the other four victims.

• Q10-What happened after Pedro, Mario and the other four victims were killed?
• A10-Tatay Laud ordered me and the six (6) killers to bring and bury equally the bodies in the three caves. We buried Pedro and Mario altogether in the first cave, located more or less 13 meters from the makeshift house of Tatay Laud, the other two victims in the second cave and the remaining two in the third cave.

• Q11-How did you get there at Laud Compound in the evening of December 2005?
• A11-I was ordered by Tatay Laud to go [to] the place. I ran errands [for] him.

Avasola’s statements in his deposition were confirmed during the hearing on July 10, 2009, where Judge Peralta conducted the following examination:

Court: x xxAnong panandaan mo? Nandoon ka ba noong naghukay, nakatago o kasama ka?
• Mr. Avasola: Kasama po ako sa pagbuhat ng mga tao, sir.

Court: Mga ilang katao?
• Mr. Avasola: Anim (6) po.

Court: May mass grave ba na nahukay?
• Mr. Avasola: May tatlong kweba po na maliliit yung isa malaki. xxx.

(Avasola told Judge Peralta that he had helped lift the bodies of six people and that there were three caves, two small ones and a big one.)

High court speaks

Although it came seven years later, the high court ruling thus firmly upheld the validity of Search Warrant No. 09-14407 notably for the three caves located inside the Laud Compound in Purok 3, Barangay Maa, Davao City.

Upholding the authority of Judge Peralta to issue the search warrant, the Supreme Court noted that “it may be said that there was general acquiescence by the public since the search warrant application was regularly endorsed to the sala of Judge Peralta by the Office of the Clerk of Court of the Manila-RTC under his apparent authority as 2nd Vice Executive Judge… and that (he) can be considered to have acted as a de facto officer when he issued Search Warrant No. 09-14407, hence, treated as valid as if it was issued by a de jure officer suffering no administrative impediment.”

The high court also upheld the Manila-RTC’s decision to issue the search warrant outside of its jurisdiction, according to exceptions in the Rules of Court for special criminal cases pertaining to those “involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions, as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and other relevant laws that may hereafter be enacted by Congress, and included herein by the Supreme Court.” Search warrant applications for such cases may be filed, the high court pointed out, by “the National Bureau of Investigation (NBI), the Philippine National Police(PNP) and the Anti-Crime Task Force (ACTAF),” and “personally endorsed by the heads of such agencies.”

The high court gave credence as well to the testimony of the PNP’s witness, Avasola, saying, “Verily, the facts and circumstances established from the testimony of Avasola, who was personally examined by Judge Peralta, sufficiently show that more likely than not the crime of Murder of six (6) persons had been perpetrated and that the human remains in connection with the same are in the place sought to be searched.”

There is, the high court said, “a quantum of proof to establish the existence of probable cause had been met” regardless of the “considerable length of time” that had lapsed between the application for the search warrant and the commission of the crime.

This time lapse, said the high court, “does not, by and of itself, negate the veracity of the applicant’s claims or the testimony of the witness presented” and may be explained in part by the CA’s observation that “the delay may be accounted for by a witness’s fear of reprisal and natural reluctance to get involved in a criminal case.”

“Ultimately,” said the Supreme Court, “in determining the existence of probable cause, the facts and circumstances must be personally examined by the judge in their totality, together with a judicious recognition of the variable complications and sensibilities attending a criminal case.”

It continued: “To the Court’s mind, the supposed delay in the search warrant’s application does not dilute the probable cause finding made herein. In fine, the probable cause requirement has been sufficiently met.”

The Court similarly concluded that there was compliance with the constitutional requirement that there be a particular description of “the place to be searched and the persons or things to be seized.” — PCIJ, September 2016