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MANILA, Philippines – Ten active and retired Navy officers charged with murder for the death Ensign Philip Andrew Pestaño in 1995 on Tuesday, January 24, asked the Sandiganbayan Third Division to throw out the case for alleged defects in the information filed by the Office of the Ombudsman.
In separate motions to quash information and to defer issuance of arrest warrants, the 10 accused cited lack of jurisdiction and what they claimed were fatal errors in the indictment that constitute sufficient ground to dismiss the murder charge.
Accused of killing Pestaño and attempting to cover up the murder were Navy Capt Ricardo M. Ordoñez; Commanders Reynaldo P. Lopez and Alfrederick A. Alba; Lt Commanders Luidegar C. Casis, Joselito L. Colico and Ruben B. Roque; Machinery Repairman 2nd Class Sandy P. Miranda; Hospital Corpsman 2nd Class Welmenio U. Aquino; Petty Officer 1st Class Carlito B. Amoroso; Petty Officer 2nd Class Mil Leonor Y. Igacasan and a “John Doe”.
In a 21-page resolution approved by Ombudsman Conchita Carpio-Morales on January 10, investigators said Pestaño was killed because of his opposition to the use of the Navy vessel, BRP Bacolod City, for the transport of hot lumber supposedly intended for then Vice Admiral Pio Carranza, PN Flag-Officer-in-Command.
Defense lawyers Ana Luz B. Cristal and Donnabel Cristal Tenorio claimed the case ought to be thrown out immediately because the Sandiganbayan has no jurisdiction over it since at the time when the offense was allegedly committed, none of the defendants have attained the rank of Naval Captain over whom the graft court may exercise its authority.
They pointed out that under Section 4 sub-paragraphs (a) and (d) of RA NO. 8249 otherwise known as the Sandiganbayan Law, the graft court has exclusive original jurisdiction where “at the time of the commission of the offense”, the public official bore the rank of colonel in the army or the air force; “naval captains and all officers of higher ranks”.
Among all the defendants, the one with the highest rank was Ordoñez who retired on Dec 26, 2005 with the rank of Naval Captain.
However, in 1995, Ordoñez was still a Lt. Commander hence outside the rank requirement.
“On the other hand, at the time of the filing of the Information, January 12, 2012, accused Ordoñez is no longer in the active military service, hence, the Sandiganbayan has no jurisdiction over his person, both at the time of the commission of the offense and at the time of the filing of the Information.
At the same time, the defense claimed the information was both “defective and invalid” because it contained four separate offenses including graft and smuggling based on the allegations of using navy vessel BRP Bacolod City for “carrying and transporting illegal lumber”; and murder and obstruction of justice in connection with the death of Ensign Pestaño and the alleged attempt at cover-up.
The lawyers pointed out that in the information there were two gunshot wounds, while the resolution only cited a single gunshot wound.
“The allegation in the information that Ensign Philip Andrew Pestaño sustained two large gunshot wounds in the head is certainly misleading. There is only one single (sic) gunshot wound self-inflicted by the deceased. The exit wound is not considered another gunshot wound. This statement in the Information is misleading and deliberately deceiving. Thus on this score alone, the information should be quashed and the case should be dismissed,” the defense said. – Rappler.com