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| Augusto Santos (AHRC) |
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| Cesar Fortuna (AHRC) |
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| Joel de Jesus (AHRC) |
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| Leonido Lumanog (AHRC) |
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| Rameses de Jesus (AHRC) |
(In the light of the latest update about the Abadilla 5 case we are sharing with you this article below of AHRC, posted in www.article2.org. Please follow the link for the original post.CAT ALERT!)
Asian Human Rights Commission, Hong Kong
Source: http://www.article2.org/mainfile.php/1001/395/
The Asian Human Rights Commission (AHRC) wishes to draw the attention of the Supreme Court (SC) of the Philippines to its recent decision on two well-known cases tried in the lower courts; the conviction in the Vizconde Massacre case was overturned while that of the Abadilla murder case was affirmed. The SC rendered its judgment on the Abadilla case on September 7 and on the Vizconde case on December 14 of this year [2010].
The SC’s decision affirming the guilty verdict by the Regional Trial Court (RTC) of Quezon City on the Abadilla Five, the five men accused in the murder of police colonel Rolando Abadilla on June 13, 1996, is already the subject of a final appeal filed on October 8, 2010. The AHRC is deeply concerned by the contradiction in the application of jurisprudence by the SC in these cases, particularly its ruling on “positive identification”, the “credibility of witness” and its appreciation of forensic evidence. All of these had been applied in acquitting the accused in the Vizconde case, which is contradictory to its earlier decision affirming the conviction of the Abadilla Five. The jurisprudence mentioned above that the SC invoked has not been equally applied.
The facts of the cases are as follows.
VIZCONDE MASSACRE CASE: This case is about the gang rape and murder of a 19-year-old woman, the murder of her 7-year-old sister and their mother on June 30, 1991 at their home in Paranaque City, Metro Manila. This is one of the most controversial and widely publicised massacre cases because of the involvement of the son of a former Philippine Senator, Freddie Webb; and six others from a wealthy family background similar to that of the accused.
Webb’s son, Hubert Jeffrey, is also the brother of a television host, Pinky, in one of the largest television networks in the country. Webb’s co-accused, Antonio Lejano, is a son of a known singer and celebrity. The other accused were Artemio “Dong” Ventura, Michael A. Gatchalian, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez, and Joey Filart. A police officer, Gerardo Biong, has also been charged for destroying the evidence at the crime scene.
The prosecution of this case only began in August 10, 1995, four years after the massacre happened, when Jessica Alfaro, an informant working for the National Bureau of Investigation (NBI), told lawyer Artemio Sacaguing, an official of the NBI, that “she knew someone who had the real story behind the Vizconde massacre”. When she could not produce the person, Sacaguing continued to press her saying that “she might as well assume the role of her informant.”
Acting solely on Alfaro’s testimony, the Department of Justice (DoJ) filed charges of rape with homicide against the eight accused on August 1995. The DoJ also placed Alfaro under the Witness Protection Program (WPP) during the trial period. The NBI is the agency responsible in providing security and protection of witnesses admitted under WPP. The NBI is a special investigating body attached to the DoJ.
On January 4, 2000, the Regional Trial Court of Paranaque City rendered its judgement “finding all the accused guilty as charged” imposing a penalty of life imprisonment. When the accused appealed the decision, the Court of Appeals (CA) affirmed the judgement of conviction by the RTC. On April this year, the Webbs filed an “urgent motion to acquit” when they found out that the NBI “no longer has custody of the specimen” that was taken from the body of the rape victim, Carmela Visconde.
During the trial, accused Webb made a defence of alibi claiming that he was in the United States when the massacre of the Vizcondes happened. To support this, Webb presented a “Certification issued by the U.S. Immigration and Naturalization Service” of August 31, 1995 confirming that “his entry into that country was recorded”. But both the RTC and the CA rejected his defence ruling that his “alibi cannot stand against Alfaro’s positive identification of him as the rapist and killer”.
On December 14, 2010, the SC rendered its decision on the appeals of the accused, questioning the guilty verdict by the RTC and the CA. It took the trial and appeal process in this case fifteen years. The SC acquitted all the accused, reversing and dismissing the guilty verdict of the RTC and the CA.
ABADILLA MURDER CASE: This case is about the murder of Rolando Abadilla, a police colonel during Marcos regime, at 8:30 on June 13, 1996 at the Katipunan Avenue, Quezon City. Originally, there were seven accused charged in this case. On August 11, 1999, the Regional Trial Court of Quezon City acquitted two of them and convicted the five others, now collectively known as the Abadilla Five. They are Lenido Lumanog, Augusto Santos, Senior Police Officer 2 (SPO2) Cesar Fortuna, Rameses de Jesus and Joel de Jesus. Their original conviction was capital punishment but their sentence was modified to life imprisonment when the death penalty was abolished.
There was only one vital witness for the prosecution, Freddie Alejo. It was Alejo who had “positively identified Joel and Lorenzo (delos Santos) during a police line-up. Alejo confirmed these two (2) as the persons he saw from his guard post walking to and fro before the shooting incident”. The RTC, however, acquitted Delos Santos despite being “positively identified” also by Alejo as one of those who was present at the crime scene.
Alejo’s testimonies in open court were also not consistent to what he had said to the police investigators immediately after the murder. In open court, he already said there were six, not four assailants; that it was two other gunmen, not one of the four present close to the car who pointed the gun at him; and he was not nervous but rather had the opportunity to see the faces of all the assailants facing him all at the same time.
Apart from Alejo, earlier there was another witness, Merlito Herbas. Herbas and Alejo worked for the Abadillas as security guards. Like Alejo, Herbas also at first instance identified Joel de Jesus as one of the gunmen during a police line-up but later withdraw his statement in open court. The court rejected his testimony because he was a ‘disgruntled witness’. Herbas had testified for the defence instead of the prosecution when the Abadilla “did not fulfil his promise to give him (Herbas) exactly the same salary he was receiving” and when he was “told that he would no longer be presented as witness because the testimony of Alejo would be sufficient”. The prosecution did not present him as their witness during the trial.
Like Herbas, court records had also shown that Alejo has been receiving money and free accommodation from the Abadillas. For example, the prosecutor, instead of admitting Alejo to the WPP during trial, rather “chose instead to allow the Abadillas, who had an interest in Alejo’s testimony, to make him dependent on them for his livelihood at least for the duration of the trial of the case”. The prosecutors, the RTC and the CA have been made aware of this fact by the defence.
Similar to the Vizconde case, the five accused made a defence of alibi claiming that they were somewhere else on June 13, 1996 when the murder of Abadilla happened. Their claims were corroborated by witnesses who are disinterested parties, their relatives and friends and documentary evidence.
In their alibis, Joel de Jesus claimed he was driving his passenger tricycle in Fairview, Quezon City the whole day; for SPO2 Cesar Fortuna, he was at Camp Crame (headquarters of the Philippine National Police, PNP) for official business and his presence was also corroborated by two police officials whom he had transacted business with; for Augusto Santos, he was at the Jose Fabella Hospital in Sta. Cruz, Manila accompanying his brother-in-law, Jonas Padel Ayhon, whose wife had just given birth; and Rameses de Jesus and Lenido Lumanog had just left Manila for Mabalacat, Pampanga where they stayed until the evening of June 14.
DISCUSSION:
1. Credibility of a witness: In Vizconde case not credible, but credible in the Abadilla case
In Vizconde case: Jessica Alfaro’s “positive identification” was rejected because she did not meet the test of a “credible witness” and that what “she personally saw must be believable, not inherently contrived”. The SC required this test as necessary before a testimony of “positive identification” could be accepted as credible and with merit.
Firstly, the SC held Alfaro was not a credible witness. “She did not show up at the NBI as a spontaneous witness (only after four years) bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecution’s worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI”.
The SC also held that it was possible for Alfaro to know the details about the Vizconde killings because she “had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony”. Thus, it was not surprising for Alfaro to testify with great details in court.
Secondly, “Alfaro’s quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient”. The SC identified the inconsistencies and the incredible facts in Alfaro’s testimony: her claim that Hubert Jeffrey Webb and Carmela Vizconde had a relationship; that Carmela had another lover whom she met just before Hubert came to her home and that she saw in open the five other accused taking turns in raping Carmela. Alfaro claimed that Hubert was angry at Carmela thus raping and murdering her, her younger sister and her mother, to supposedly revenge her unfaithfulness to him.
Alfaro could not possibly prove the relationship between Hubert and Carmela, as they were strangers to each other, and Alfaro also could not have possibly identified the other accused because all of them were strangers to her. She did not know nor met any of them.
The SC, however, held that by failing to prove the existence of a relationship between Hubert and Carmela; and that the ‘lover’ that Alfaro claimed that Carmela had met did not come forward in public or in court, her testimonies about the accused and the victims were “like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces” and the lover was “a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals”.
In Abadilla case: The SC admitted the ‘positive identification’ of witness Freddie Alejo when it considered him a credible witness. This is despite questions to his credibility for receiving money and enjoying privileges while he was in Abadilla’s custody and the existence of inconsistencies in his testimonies in open court.
Firstly, like Alfaro, Alejo also received money and free accommodation from the persons who had interest in his testimony. Alejo had been under the Abadillas’ custody and protection instead of that of the WPP of the government. The SC did not apply the two tests it invoked on the Vizconde case before accepting the “positive identification” of Alejo as credible, and him as a credible witness.
Secondly, the SC affirmed the CA’s assertion that Alejo was a credible witness ignoring the questions to his credibility by arguing that: “positive and unequivocal declaration is sufficient to support a conviction for murder against appellants. Indeed, the testimony of a single witness, when positive and credible, is sufficient to support a conviction even for murder”.
On the acquittal of Lorenzo delos Santos, the accused whom Alejo had also positively identified, it ruled that his acquittal did not damage Alejo’s credibility; and his “positive identification” of the accused. It held that “the acquittal of their co-accused does not necessarily benefit the appellants. We have ruled that accused-appellant may not invoke the acquittal of the other conspirators to merit the reversal of his conviction for murder. For there is no law requiring that the testimony of a simple [sic] witness should be corroborated for it to be accorded full faith and credit”.
In rejecting questions to Alejo’s credibility, the SC affirmed the CA’s ruling that “the credible testimony of a lone witness(es) assumes more weight when there is no showing that he was actuated by improper motive to testify falsely against the accused, as in the case of Freddie Alejo”. Both the SC and the CA affirmed the RTC’s sentence of guilty verdict without applying the test on the credibility of a witness as they did in Vizconde case.
2. Inconsistencies: In Vizconde case damages credibility, in Abadilla case does not
In Vizconde case: The SC applied two tests in rejecting the “positive identification” of Alfaro: firstly, the “credibility of a witness”; secondly, the testimony should be “believable, not inherently contrived”. It strictly laid down these as the least requirement in evaluating the credibility of the claim of “positive identification”. It cautioned itself from accepting the testimonies of witnesses without applying these tests. It held that “a positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can”.
As already mentioned, the SC concluded Alfaro to be not a credible witness because she did not meet these two criteria. Thus, her testimony could not be admitted.
In Abadilla case: Both the RTC and the CA did not apply this test of credibility of a witness before accepting the testimony of Alejo. The CA rather held that “positive and unequivocal declaration is sufficient to support a conviction” which was affirmed by the SC. It was also not true that there was “no showing that he (Alejo) was actuated by improper motive to testify falsely against the accused” because the defence had since been challenging his credibility during the trial.
One of the justices, Roberto Abad, who dissented the majority decision affirming the guilty verdict wrote: “the public prosecutor chose instead to allow the Abadillas, who had an interest in Alejo’s testimony, to make him dependent on them for his livelihood at least for the duration of the trial of the case. Knowing this, I cannot but hesitate to swallow everything that Alejo said at the trial”.
While the SC rejected Alfaro’s testimony being not a credible witness, it held Alejo still a credible witness despite the inconsistencies in his testimony. It defended the attack on Alejo’s credibility, for example, his inconsistencies on the number of gunmen, arguing that this had “already been explained by Alejo during cross-examination by correcting his earlier statement” and that the “affidavits, being ex-parte, are almost always incomplete and often inaccurate, but do not really detract from the credibility of witnesses.[165] The discrepancies between a sworn statement and testimony in court do not outrightly justify the acquittal of an accused,[166] as testimonial evidence carries more weight than an affidavit”.
3. Defence of Alibi: In Vizconde case not admissible, in Abadilla case court acted on conjectures
Similar to the accused in the Vizconde case, all the accused in the Abadilla case invoked their defence of alibi. Two of the accused have also been acquitted by the RTC on the basis of their defence of alibis. Lorenzo delos Santos was acquitted due to lack of evidence, but the RTC, the CA and the SC ignored that fact that the same “positive identification” it invoked in convicting the Abadilla Five came from exactly the same testimonies that have been used to acquit Delos Santos.
The SC, however, upheld the RTC and the CA’s judgement that the defence of alibi of the accused “is a weak defense, (and that) for it to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime, but also, that it was physically impossible for him to be” or “within its immediate vicinity”. In rejecting the defence of the accused, the SC also affirmed the conjecture the CA had put forward as to the possibility that the accused could have been present or somewhere at the vicinity where the crime took place, as mentioned below:
On Joel de Jesus, “it was not impossible for him to have gone also Katipunan Avenue (from Quezon City where he was driving), which is also part of Quezon City, not to mention the fact that with his tricycle, he could have easily moved from one place to another”;
On Rameses de Jesus and Lenido Lumanog, their claims “lack credence as they are unsupported by the testimonies of independent witnesses. At any rate, Rameses de Jesus admitted that they were using the new car of Lenido Lumanog. Hence, it was not physically impossible for them to travel to Quezon City via the North Expressway at the time the crime took place”;
On Augusto Santos, the corroboration of his brother-in-law, Jonas Padel Ayhon, that he was at the Jose Fabella Hospital when the crime happened, the CA rejected his corroboration because he was not an “impartial witness” and ruled that “where nothing supports the alibi than the testimony of a relative, it deserves scant consideration”.
On SPO2 Cesar Fortuna, the RTC, the CA and the SC, accepted the fact that he was at Camp Crame, but the SC affirmed the RTC and the CA’s conjecture that “it was not impossible for him to have gone to Katipunan road, Blue Ridge, which is relatively near Camp Crame when the shooting happened around 8.40 in the morning. After the shooting, he could have easily and quickly transferred to Camp Crame between 9:00 and 9:30 in the morning”.
4. Conjectures have become the facts
In Vizconde case: The majority of the justices strongly argued against relying on conjectures on deciding the case, particularly on the claim that Hubert Jeffrey could have been in the Philippines, and not in the U.S., when the crime happened. Webb presented certifications from the U.S. Immigration but he failed to submit as evidence in court the original copy of his passport with immigration entry stamped on it.
But Justice Conchita Carpio Morales, who concurred with the decision, wrote strongly against basing judgement on conjectures: “Facts decide cases. Conjectures and suspicions are not facts, hence, they have no evidentiary value. They cannot be the bases of conviction as they cannot substitute for the constitutional requirement of proof of guilt beyond reasonable doubt. Suspicions, no matter how strong they are, must never sway judgment”. The majority of the justices also rejected as conjecture the argument of one of the dissenting justices, Martin Villarama Jr., that “it would not have been impossible during the interregnum for Webb to travel back to the country and again fly to the US several times considering that the travel time on board an airline from the Philippines to San Francisco, and from San Francisco to the Philippines takes only about twelve (12) to fourteen (14) hours”.
Justice Villarama argued that a photocopy of Webb’s passport in court to support his alibi and the testimonies of witnesses, mostly his relatives and friends, could not be given merit, by cautioning his fellow justices that it “can be gleaned from the fact that passports and plane tickets indicating dates of arrival and departure do not necessarily prove that the very same person actually took the flight” and added that “indeed, alibi cannot be sustained where it is not only without credible corroboration, but also where it does not, on its face, demonstrate the physical impossibility of the accused’s presence at the place and time of the commission of the crime.[139] Against positive evidence, alibi becomes most unsatisfactory. Alibi cannot prevail over the positive identification of a credible witness [140].”
But Villarama’s opinion was not considered by the SC in their majority decision. Therefore, the SC’s rejection of Villamara’s opinion demonstrates a fundamental contradiction to its September 7 decision on the Abadilla case.
Firstly, in the Vizconde case, the SC still held as credible the corroborating testimonies of the witnesses favouring Hubert Jeffrey who are mostly his relatives and friends in support of his defence of alibi. But in the Abadilla case, the relatives and friends are “not an impartial witness” to corroborate the defence of alibi of the accused. For example, it rejected as not impartial the corroborating testimony of Augusto Santos’s brother-in-law that he was at the hospital with him when Abadilla was murdered.
Secondly, in the Abadilla case the SC held that the “defense of alibi is weak”, but in the Vizconde case it held that “not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangman’s noose in the face of a witness positively swearing”.
Therefore, the applications of the SC on evaluating the defence of alibi of the accused have not been equally applied in these two cases.
In the Vizconde case, the SC does not accept “conjecture” as the basis of its decision. But in the Abadilla case, not only did the SC affird the CA’s ruling in rejecting the defence of alibi, it did not also question the CA’s formulation of conjectures on which it based its judgement. The CA in effect crafted and formulated the conjectures giving them the appreciation similar to facts offered as evidence where it had based the judgment.
5. Forensic evidence: In Vizconde case it “cannot lie”, in Abadilla case it is “inconclusive”
In Abadilla case: The SC affirmed the CA’s judgement as “inconclusive” the use of forensic evidence, for example, the fingerprints and ballistic test results, showing that none of the five accused had their fingerprints match to those extracted from the murder victim’s car. The ballistic test results also did not match to any of the firearms supposedly taken from the accused to the empty shells that were recovered at the crime scene. The CA held that “these ballistic results are inconclusive and can never prevail over appellants’ positive identification by eyewitness Freddie Alejo”.
In Vizconde case: The SC has given weight to the importance of forensic evidence in a court trial. Hubert Jeffrey Webb sought for an acquittal after he had found out that the NBI could no longer produce the DNA specimen extracted from the cadaver of the rape victim. Hubert argued that the specimen could exonerate him from the charge and support his defence that he did not rape the victim. As to the failure to present the forensic evidence and its subsequent loss, the SC held: “the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.[8] If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple”.
Once again, the SC’s applications of jurisprudence on the admissibility of forensic evidence in criminal trial have not been equally applied.
CONCLUSION: The Asian Human Rights Commission (AHRC) is deeply concerned by this unequal application of jurisprudence by the SC on the Abadilla murder and the Vizconde massacre. The SC’s decision in acquitting all the accused in the Vizconde case has fundamental contradictions to its earlier decision affirming the guilty verdict of the accused in the Abadilla case.
The AHRC urges the SC to thoroughly review the pending final appeal of the accused in the Abadilla case. It would be a serious miscarriage of justice and a demonstration of inequality before the law should jurisprudence not be applied equally. Like the accused in the Vizconde case and for any other cases for that matter, the accused in the Abadilla murder case also deserve equal protection of the law. Equal protection of the law is fundamental in the country’s Constitution.
References:
1. G.R. No. 176389 / G.R. No. 176864. December 14, 2010: http://sc.judiciary.gov.ph/jurisprudence/2010/december2010/176389.htm
2. G.R. Nos. 182555/G.R. No. 185123/G.R. No. 187745. September 7, 2010 http://sc.judiciary.gov.ph/jurisprudence/2010/september2010/182555.htm
3. Abadilla Case Petition for Review on Certiorario: http://campaigns.ahrchk.net/abadilla5/docs/A5-FinalAppealPetition.pdf
4. Abadilla Case Decision from the Court of Appeals: http://campaigns.ahrchk.net/abadilla5/docs/A5-CAdecision.pdf
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Footnote: This article comprises the text of a statement issued by the Asian Human Rights Commission, AHRC-STM-266-2010, dated 21 December 2010.
Posted on 2011-03-29
Back to [Vol. 10 - No. 01 March 2011 -- Special Report: Torture in the Philippines & the unfulfilled promise of the 1987 Constitution]
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