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Ombudsman may withdraw murder charge in Pestano case

Rappler.com
Prosecutors admit they may have overlooked the issue of lack of jurisdiction.

MANILA, Philippines – Ooops!

Prosecutors from the Office of the Ombudsman have admitted that they may have overlooked the question of lack of jurisdiction by the Sandiganbayan on Philippine Navy officers named defendants in the alleged murder of Ensign Philip Andrew Pestaño in 1995.

In a 19-page Omnibus Motion filed with the Sandiganbayan’s third division late Tuesday, February 21, prosecutors said they are prepared to withdraw the information filed last January 11 accusing 10 retired and active Navy officers of murder — if and when it is proven that none of them was holding the rank of naval captain at the time of Pestaño’s demise.

The motion was signed by Assistant Special Prosecutors Lalaine D. Benitez and Harry R. Caldino and noted by Deputy Special Prosecutor Jesus A. Micael.

“(T)he prosecution is amenable to the withdrawal of the Information should there be an official document to show that the position of accused does not fall within the jurisdiction of the Sandiganbayan,” they said.

Defense lawyers Ana Luz B. Cristal and Donnabel Cristal Tenorio earlier pointed out that under Section 4 sub-paragraphs (a) and (d) of RA NO. 8249 (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.”

Charged 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.”

Still in active military service are Lopez and Casis, from Philippine Military Academy Class 1992; Alba and Colico of Philippine Military Academy Class 1994; and Aquino and Miranda.

Prosecutors said Pestaño was killed to silence him due to his vocal objections to the use by his superiors of the Navy vessel to transport hot lumber and suspected illegal drugs.

Burden of the defense

They said the defendants then conspired to cover-up the crime by making it appear that Pestaño took his own life by firing a gun into his temple.

Among the defendants, the one with the highest rank was Ordoñez who retired on Dec. 26, 2005 with the rank of Naval Captain.

However the defense said Ordoñez was still a Lieutenant Commander in 1995 which was one level below the rank requirement.

Still the prosecution insisted that the burden of proving this point rests with the defense as it stressed that evidence on hand show Ordoñez was within the graft court’s jurisdiction.

“The records of the case including the evidence gathered during the preliminary investigation, particularly the pleadings submitted by accused Ordoñez, indicate that his rank was only that of Naval Captain at the time of the commission of the crime. The onus of thus proving the contrary is on the defense,” the prosecution said.

Defendants also have a pending motion for the dismissal of the murder charge citing lack of basis and claiming that Pestaño had suicidal tendencies and had in fact attempted to take his own life by slashing his wrist on Sept. 10, 1995 but was saved by 2 classmates who reportedly rushed him to the Camp Navarro General Hospital in Zamboanga City. – Rappler.com

 

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