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Breaking Impunity: The Rigors of Case Prosecution
Volume 20 Number 3
Saturday, 30 September 2006 00:00

by Rita Melecio

On the fateful morning of 8 September 2004 at 5:30, victims Abubacar Japalali and his wife Carmen were inside their house in barangay Bincungan, Tagum City sleeping while their neighbors, Oslamic Ladia and Rosalim Padama were also in an adjacent house. When Ladia went outside to urinate, he saw several soldiers in a firing position and their house surrounded as well as the house of the Japalalis.

Ladia rushed inside their house. He and his companion Padama immediately dropped to the floor for safety. The military opened fire on the two (2) houses. According to Ladia and Padama the gunfire lasted for about ten (10) minutes.

The operation resulted to the death of spouses Bacar and Carmen Japalali. The two victims both succumbed to multiple gunshot wounds in different parts of their bodies. Bacar died on the spot, his lifeless body sprawled inside the mosquito net. His wife Carmen was able to shout for help but she was gunned down by the military which resulted to her fall in their stairway witnesses said. She was rushed to the hospital but later died due to severe gunshot wounds with fractures on feet, back and abdominal bleeding (as shown in her death certificate). Carmen was three (3) months pregnant. This incident happened when elements of the 404th IB, Philippine Army conducted an operation in response to the reported presence of more or less forty armed men in the said area. This resulted in the tragic death of the Japalali couple.

The Provincial Crime Laboratory Office based in Tagum City conducted a thorough and methodological way of searching for evidence in the crime scene, with SOCO report no. 002-04. The following were the evidence obtained by the team;
1.    fired bullet of caliber 5.56 marked “AB”
2.    fired bullet of caliber 5.56 marked “BC”
3.    fired bullet of caliber 5.56 marked “CD”
4.    cigarette butt mark “RM1”
5.    cigarette butt marked “RM2”
6.    cigarette butt marked “RM3”
7.    cigarette BUTT marked “RM4”
8.    cigarette butt marked “RM5”
9.    paraffin casting was conducted on the victim, Bacar Japalali

On 13 September 2004, Police Superintendent Wilbert B. Clarin Sr., Chief of Police in Tagum City submitted their report regarding the result of ocular investigation in the area. They stated that at the crime scene, the remains of Abubacar Japalali was sprawled inside a mosquito net. The house occupied by spouses Abubacar and Carmen Japalali were peppered with bullets as evidenced by scores of gunshot bores in the different portions of the house. The other house occupied by Oslamic Ladia and Rosalim Padama were also peppered with bullets, but they were both unharmed. Photographs of the crime scene and paraffin tests of the victims were made. Recovered from the crime scene were fifty-five (55) empty shells of M-16 rifle, two (2) pieces empty shells of M-14 rifle, and one (1) dud M203 grenade.

On 29 September 2004, the Provincial Crime Laboratory Office released their findings on the result of paraffin cast taken from Bacar Japalali with Chemistry report no. C-026-2004DN which stated that “both hands of the cadaver do not contain gunpowder nitrates”.

The Labyrinth of Case Prosecution: A Chronicle

10 September 2004, the victim’s brother Talib backed by two (2) eyewitnesses  filed murder charges against Sgt. Napoles and his 31 men involved in the death of the couple before the City Prosecutor in Tagum City, Davao del Norte;

04 October 2004, TFDP sent a letter of complaint to office of the Ombudsman for the Military and office of the Commission on Human Rights XI;

11 October 2004, Fiscal Francisco G. Rivero, the investigating prosecutor approved the motion of extension of time to file counter-affidavit filed by respondent Sgt. Serafin Jerry Napoles. He was given 15 days to submit his counter-affidavit;

25 October 2004, Rodolfo Baluyo, the father of Carmen executed an affidavit before the Commission on Human Rights in Davao City. He filed the complaint and Talib Japalali (brother of the victim) submitted the relevant documents of the case. However, until this date the commission has not taken any action and no investigation has been conducted in the area;

17 December 2004, Prosecutor Francisco Rivero sent his resolution to the Office of the Ombudsman for Military for review and recommendation finding the respondent military personnel not liable for the death of the couple as there is no sufficient proof that the soldiers committed abuse in the performance of their duty, as the prosecutor agreed that it was a legitimate encounter;

03 January 2005, Harry G. Ravelo , officer-on-case, office of the Military Ombudsman sent letter to TFDP and requested additional documents to be submitted in order for them to proceed with the preliminary investigation within ten (10) days;

27 January 2005, TFDP sent a reply to the office of the Ombudsman with additional evidences and documents;

21 September 2005, Prosecutor Beda A. Epres, Graft Investigation and Prosecution Officer II, office of the Ombudsman for the Military, disapproved the resolution under consideration of the City Prosecution office of Tagum City. Prosecutor Epres found the following;

perusal of the records show that the body of deceased Bacar Japalali was still in bed inside a mosquito net and per chemistry report no. C-026-2004 DN, the qualitative examination conducted on the pair of paraffin cast taken from both hands of the deceased yielded a negative result to the test for gunpowder nitrates.
These facts would definitely belie respondent’s claim that there was a firefight.

06 July 2005, Ombudsman for the Military makes an evaluation report of the complaint filed and informed TFDP that they already received the endorsement of the Prosecutor’s office and subsequently assigned to Prosecution Officer II Beda A. Epres on February 25,2005 for preliminary investigation;

TFDP constantly follows up to Military Ombudsman for speedy resolution of case and sending of urgent actions was done to add more pressure;

24 January 2006, prosecution office filed an information for murder docketed as criminal case # 14958 and 14959 at the Office of the Clerk of Court of Tagum City and subsequently raffled at RTC branch 2 under Hon. Judge Justino G. Aventurado;

20 March 2006, Judge Aventurado ordered the prosecution’s office to submit additional evidences according to Section 6 of Rule 112 of the Rules of Court;

20 March 2006, TFDP wrote Supreme Court Administrator, thru email request for intervention for the delay of judge in issuance of warrant of arrest

4 April 2006, the Prosecution’s office issued an order directing the complainant Talib Japalali to submit additional evidence within five (5) days, which was received by the complainant on April 25 personally because the Prosecution’s office failed to deliver the said order;

28 April 2006, the court received the additional affidavits of 3 witnesses, photographs, death certificates, police report and police blotter;

TFDP spearheaded the following activities:

Mass and ecumenical prayer for the speedy resolution of the case was done with candle lighting and offering of flowers;

Meetings with families, relatives, witnesses and support groups and promised to support the campaign and work together to obtain justice;

Hanging of streamers in different conspicuous places in Tagum City (Justice for Japalali couple) and displayed during media events;

Two (2) press conferences attended by about 50 people with photo-exhibit and t-shirt worn (Justice for Japalali couple) for projection of case and issuance of arrest warrants against the accused military;

Two (2) mobilizations were done attended by about 130 people, urging judge to issue warrant of arrest against the accused military and questioning his impartiality;

Letters were sent to Hon. Judge by networks asking for the speedy disposition of the case;

Organized meeting with LGUs (committee on Human Rights both in Province and City and Governor) regarding the delayed issuance of arrest warrants against the accused by the Hon. Judge;

Sending of urgent appeals to network, issuing of public statements and media events for projection of case;

11 May 2006, Judge Aventurado issued an order directing the Prosecution  (Ombudsman for the Military) to amend the information from Murder to Homicide;
Until now, the Military Ombudsman has yet to respond to the directive.

8 - 12 May 2006, the families of the victims conducted follow-up at the court but it was futile since they were only told by the court employees to identify first the accused military so that warrant of arrest may be issued and the case is still under study by the Hon. Judge. The same answer was given to some support groups who followed-up on May 19,2006;

26 June 2006, TFDP wrote Hon. Christopher Lock, Supreme Court Administrator for Mindanao, citing the delay of judge in issuing the arrest warrants against the accused military and reiterating the violation of the judge to the Code of Judicial Conduct, sent thru email;

30 June 2006, Hon. Christopher Lock, sent 1st endorsement addressed to Hon. Judge Aventurado for comment and appropriate action directing him to take action within 20 days from receipt;

21 July 2006, Judge Aventurado answered the directive of the court administrator, but only reiterated his previous answer and only reproduced his previous explanation dated April 27,2006;

28 August 2006, TFDP facilitated the filing of a complaint against Hon. Judge Justino Aventurado for Grave Abuse of Discretion, violation of section 6, Rule 112 of the Revised Rules of Court and violation of the Code of Judicial Conduct Canon 1 Rule 1.02 and Canon 3 Rule 3.05. Backed by the affidavit of the victim’s family Hadji Hamid Japalali and Talib Japalali during their encounter with the Judge and other supporting evidences;

Recommendations:

Section 6, Rule 112 of the Revised Rules of Court:

When warrant of arrest may be issued - (a) by the Regional Trial Court - within ten (10) days from the filing of complaint or information, the Judge shall personally evaluate the resolution of the Prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause, if he finds probable cause, he shall issue a warrant of arrest.

In case of doubt on the existence of probable cause, the Judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.

a.    Hon. Judge Aventurado clearly violated the provisions therein, the evidences submitted could have been enough to determine probable cause to issue warrants of arrest. The Judge is delaying the issuance of such and is failing to act on this matter with urgency. In his answer to the query of the Court Administrator dated April 27, 2006, wherein he cited the previous dismissal of the Prosecutor’s office stating that what transpired was a legitimate encounter, did not warrant the delay of his issuance of arrest warrants to the accused military. The dismissal of the Prosecutor’s office was already overturned upon review by the Military Ombudsman hence; there is a deliberate intent by Judge Aventurado to delay the issuance. He can immediately dismiss the case if he did not find probable cause and yet he did not do so. His actuation demonstrates his partiality in which he acted as lawyer of the accused rather than a Judge;

b.    Hon. Judge Aventurado should be held liable for Grave Abuse of Discretion by directing the Prosecution (Military Ombudsman) to amend the case from Murder to Homicide, as he gave credence to the counter-affidavit of Sgt. Napoles that he ordered that Carmen (wife) be brought to the hospital but failing to recognize the affidavit of one of the witnesses which stated that the military fired at the man who brought the wounded Carmen to the hospital. He also failed to recognize the photographs of the victim Bacar Japalali which clearly shows that he was killed inside the mosquito net. In his 2nd answer to the Supreme Court administrator, he only reiterated his previous answer without even evaluating the evidences at hand (Review and recommendation of Military Ombudsman, SOCO report which yielded Japalali negative of gun powder nitrates, Police report and Police blotter);

c.    The delay on the part of Judge Aventurado has caused undue anxiety to the victim’s families who have long been deprived of justice. Promptness in resolving cases in court is essential in delivering justice to victims of human rights violations. Failure to meet this objective further reinforces the culture of impunity that exists in the country as if the judiciary is condoning the mockery of justice. Judges are obligated to discharge their duties in accordance with the Code of Judicial Conduct Canon 1 Rule 1.02 and Canon 3 Rule 3.05 which provides that a judge should administer justice impartially and without delay and that a judge shall dispose of the court’s business promptly and decide cases within the required period, which was violated by Judge Aventurado himself.

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