DEEPLY DISTURBING. That may be the best way to describe the decision of the Special Fifth Division of the Court of Appeals invalidating the creation and thus the conclusions of a second panel of prosecutors that had investigated last year’s murder of Palawan environmentalist Gerry Ortega.

The three-person division, under acting chair Justice Leoncia Real-Dimagiba, ruled that Justice Secretary Leila de Lima committed grave abuse of discretion when she constituted the second panel, and that therefore both the panel and its Resolution of March 12, 2012, finding probable cause to charge the powerful Reyes brothers of Palawan with murder were null and void.

In a passage remarkable for its sudden, telling shift in language register, the decision sounds the alarm over potential abuse of power by the head of the Department of Justice. “It behooves … the Secretary of Justice to adhere to the Rules of Procedure the DOJ promulgated for orderly and effective administration of justice otherwise the vast power of the Secretary of Justice would be susceptible of abuse. Scary!! With all its resources it behooves … the State to balance the scales in what would otherwise be an uneven contest between an individual versus the State.”

That tweet-ready explosion in the middle of the passage has gotten much attention, because it neatly sums up the case against De Lima and her second panel. But truth to tell, “scary” (with or without the exclamation marks) also encapsulates our serious misgivings about the court’s decision, and its implications.

The CA is only right to place the highest premium on a suspect’s civil liberties, precisely because a criminal case can be a decidedly uneven contest. But is that in fact the reality of the Ortega case? If anything, it is the State that labors under a disadvantage. Just before the finding of probable cause was circulated, for example, the former governor Joel Reyes and his brother, the former mayor Mario Reyes, managed to flee the country. To this date, they have not been located; they are wealthy and well-connected enough to stay out of sight. And yet amazingly, the court had nothing to say about this. “Flight is an indication of guilt” is a famous legal axiom built on the accumulated wisdom of generations of lawyers; does this not apply to the Reyes brothers?

The heart of the decision is the justices’ appreciation of a fine point of law: Whether De Lima had “compelling reason” to constitute a second, all-new panel. The decision admits, repeatedly, that a justice secretary has “wide discretion” to substitute his/her judgment for that of a subordinate—and yet in the end finds that De Lima crossed even that generous latitude of discretion, by failing to give a compelling reason that would justify ignoring the first panel and creating the second.

We cannot follow the justices’ logic on this point; isn’t the offer of new evidence enough to justify a review of the original case? That is what disturbs us the most: that the evidence presented to the second panel, including a record of incriminating text messages, is now in prosecutorial limbo.

We should make clear: De Lima’s failure to act on an earlier petition or to officially end the work of the first panel is puzzling.

But if it’s a legal mystery the division’s three justices want, they need look no further than their own decision. After summarizing the facts of the case in the first 19 pages, the decision defines three “issues for resolution.” The first is whether De Lima committed grave abuse when she created the second panel; the second is whether the panel committed grave abuse when it issued its Resolution. And the third? Whether the Puerto Princesa Regional Trial Court committed grave abuse of discretion “when it took cognizance of the criminal information filed” as a result of that March 12 Resolution.

We know the court’s answer to the first two; what does it say about the third issue? Why, nothing. Either the justices forgot they raised a third point, or they decided they could not rule on it. To be sure, Associate Justice Ramon A. Cruz’s lucidly written separate and concurring opinion does raise the third issue—but only to say that the court is “the best and sole judge on what to do with the case before it.”

Yes. And that same trial court accepted the finding of probable cause and issued a warrant of arrest. To imagine what would happen if the RTC took it all back—now that is scary.

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Tags: Court of Appeals , Department of Justice , editorial , Gerry Ortega murder case , grave abuse of discretion , joel reyes , mario reyes

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