Scary, revisited

For the second time, a division of the Court of Appeals has invalidated Justice Secretary Leila de Lima’s creation of a second prosecutorial panel to investigate the 2011 killing of Palawan environmental activist and radio anchor Gerry Ortega. The five-member Special 10th Division found that De Lima committed “patent grave abuse of discretion” when she violated the Department of Justice’s “specific rules of procedures” governing the review of criminal cases. As with the first time, however, the CA failed to address the general public’s concerns about the fugitive status of the petitioners themselves—wealthy, well-connected politicians who went into hiding just before the warrants for their arrest were issued.

That De Lima chose to ignore the recommendations of the first panel of prosecutors she had herself convened, and instead proceeded to convene a new one, is not without its mysteries. But we fail to see how this sequence of events rises to the level of grave abuse of discretion “tantamount to lack of or in excess of jurisdiction.”

The Special 5th Division declared the second panel invalid four months ago, for essentially the same reason. In unusual language, that division aired its concern about possible abuse by the government’s lawyer-in-chief. “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.”

But as we noted last November in this space, the case involving the suspects Joel and Mario Reyes, former governor and former mayor, respectively, was more complicated than the court assumed. “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.”

The State continues to be at a disadvantage. The Reyes brothers remain in hiding; it takes either unusual good luck or considerable resources to outrun a warrant of arrest, and to this day the brothers remain out of sight and out of the government’s reach. Whatever happened to the legal axiom that holds that “flight is an indication of guilt”?

We should also note that the brothers had filed two petitions before different divisions of the CA, a course of action not readily available to everyone.

In the new ruling, which voids the second panel’s findings that the brothers should be prosecuted for Ortega’s murder and instead advances the first panel’s conclusions absolving them of involvement, the CA makes much of the supposed “chaotic situation” that now surrounds the case. By establishing the second panel, the court said, De Lima “only caused disorder in what could otherwise have been an orderly administration of justice.” If only De Lima had followed the DOJ’s own rules, it said, “the chaotic situation … could have been very well avoided.”

Maybe. But one can also argue that the chaos is judge-made. Both divisions of the CA noted that the justice secretary had the last say on whether criminal charges should be brought before the court. As the Special 10th Division phrased it: The justice secretary “can, consistent with the rules, modify, affirm or reverse the findings of either of them (referring to the panels).”

Isn’t that exactly what De Lima did? The only difference we can see is that she did not reverse the first panel’s recommendations by fiat; she set up a second panel, to give the matter a fresh look. And yet the CA found that she “failed to observe the procedural rights of petitioner and violated the guarantees of due process.” This flies against the basic principle, pointed to in Justice Noel Tijam’s dissenting opinion and recognized by the Supreme Court, that the DOJ chief has “superior authority” in prosecuting offenses.

We think the CA’s overzealous focus on a procedural aspect of the case scants the substantive issue. Indeed, as the Tijam dissent also points out, the DOJ had “ordered the creation of more than one panel” in other cases, most prominently in the Ampatuan mass murder case—and none has been “struck down for having been issued with grave abuse of discretion.” By impugning De Lima’s creation of the second panel, then, the court, by a 3-2 vote, overrides the justice secretary’s own conclusion that the work of the first panel was inadequate, and that new evidence warranted a fresh take.

Scary thought.