MANILA, Philippines – Opposition senators Franklin Drilon and Risa Hontiveros called on Justice Secretary Vitaliano Aguirre II to turn over to the Office of the Ombudsman the murder case of 17-year-old Kian delos Santos, who was allegedly shot and killed by policemen conducting a drug raid in Caloocan City.

“Nananawagan ako na pormal mag-inhibit [ang DOJ] sa kasong ito, at sinusuportahan ko ang panawagan ni Senator Drilon na ipaubaya sa Ombudsman,” Hontiveros said in an interview on GMA News TV’s News To Go on Monday, August 28.

(I am calling on the DOJ to formally inhibit itself from this case, and I support the call of Senator Drilon to turn over the case to the Ombudsman.)

Murder and torture complaints were filed before the Department of Justice on Friday against Police Officer 3 Arnel Oares, Police Officer 1 Jerwin Cruz, Police Officer 1 Jeremias Pereda, their station commander Chief Inspector Amor Cerillo, and several “John Does.”

When Hontiveros first called on Aguirre to inhibit himself from the case, the justice seretary responded by saying the senator is ignorant about the process of prosecution. Aguirre said he does not have to inhibit himself because it is the state prosecutors of the DOJ and not him who will investigate the case and subsequently file charges in court if they find probable cause.

DOJ’s independence

Hontiveros said the independence of the entire DOJ has been tainted by Aguirre’s statements that Delos Santos’ case is isolated and blown out of proportion.

“Ano pa ba ang mas malinaw na gusto ‘nyong sabihin ko? Sinasabi ko na ngang kinukundena ng DOJ, hindi maaaring kampihan ng DOJ ang mga pulis na ‘yan, the DOJ is going to prosecute this to the best of our ability,” Aguirre responded.

(What else do you want me to say that is clearer than what I’ve already said? I have said that the DOJ condemns the killing, that the DOJ will not side with the policemen. The DOJ is going to prosecute this to the best of our ability.)

Hontiveros claims Aguirre had a hand in the downgrading to homicide the charges against Supertintendent Marvin Marcos and other cops who conducted the raid that killed Albuera Mayor Rolando Espinosa Sr in 2016.

Aguirre already said he had nothing to do with the downgrade, which was approved by his Undersecretary Reynante Orceo.

“Sabi ni  Secretary Aguirre, hindi nila hahawakan ang kasong ito, but I am not ignorant either na hinawakan niya ‘yung kaso ni Marcos kay Mayor Espinosa, kaya ‘yung kasong dapat murder [against the policemen] ay idinowngrade sa homicide. Kaya hindi nagbibigay ng kumpyansa sa independent investigation sa ilalim ng kanyang pamumuno dito sa kaso ni Kian. Hayaan na sa Ombudsman kung maaari,” Hontiveros said.

(Secretary Aguirre said he would not handle this case, but I am not ignorant either that he handled the case of Marcos, the case of Mayor Espinosa, that’s why the murder charges [against the policemen] were downgraded to homicide. It does not give you confidence that the investigation into Kian’s case will be handled independently under his leaderhsip. He should let the Ombudsman handle this.)

Jurisdiction

Drilon earlier said the laws do not stop the DOJ from giving up its jurisdiction and referring the case to the Ombudsman.

A 2014 Memorandum of Agreement (MOA) between the DOJ and the Office of the Ombudsman states that the two agencies have concurrent jurisdiction over “complaints for crimes involving public officers and employees falling outside the exclusive jurisdiction of the Sandiganbayan.”

The same provision of the MOA also says “that the office where such a complaint is filed for preliminary investigation shall acquire jurisdiction over the complaint to the exclusion of the other.”

Similar murder complaints against local cops in Payatas and Caloocan conducting drugs raids are pending before Office of the Ombudsman. Those complaints were filed by lawyers from the Center for International Law or CenterLaw.

CenterLaw’s Rommel Bagares told Rappler that the Ombudsman’s Memorandum Circular Number 02 Series 2003 states that the Philippine National Police (PNP) falls under the Ombudsman’s jurisdiction.

Hontiveros said a representative from the Office of the Ombudsman, upon her invitation, has already spoken to the witnesses who are under the Senate’s protective custody.

Kian witnesses

Aguirre was adamant on Monday that Hontiveros must turn over the witnesses, who are minors, to the DOJ.

“Hindi po tama ‘yung ginawa n’ya sapagkat ang dapat mangalaga diyan ay hindi siya, sapagkat wala siyang kakayahan, wala siyang training na mag-provide ng protection diyan. Sapagkat ang may kakayahan na mag-provide ng protection ay ang ating Witness Protection Program (WPP) na may sapat na kakayahan, may sapat na pondo, para pangalagaan ang witness na dito,” Aguirre said.

(What she did was not right because she does not have the ability and the training to provide them protection. The Witness Protection Program (WPP) is able, and has the funds, to protect these witnesses.)

Aguirre said that the witnesses are being handled now by the child protection unit of the Philippine General Hospital (PGH), which, according to him, does not specialize in witnesses, such as the ones in the Delos Santos case.

“‘Yun po lamang ‘yung mga witnesses na dumaan sa trauma, ‘yung binugbog, eh ‘yan ay ordinary witness lamang, nang tatanungin ng NBI ayaw n’yang ipatanong at sabi sa NBI kinakailangan ay isulat sa papel ang tanong at kami ang magtatanong. Hindi po ganyan ang imbestigasyon,” Aguirre said.

(The witnesses fit for that unit are the ones who are traumatized or beaten up. But they are just ordinary witnesses. When the NBI wanted to ask the witnesses, the NBI was told they had to write the questions on a paper and they would be the ones to ask. That’s not the proper way to investigate.)

Hontiveros said the PGH’s child protection unit was just observing proper rules in questioning minor witnesses.

Aguirre added that children are “susceptible to suggestion.”

“Sabi naman ni Senator Hontiveros, children are susceptible to telling the truth…pero kung ‘yung batang ‘yan nasa ilalim ng isang biased witness tulad nina Senator Hontiveros, ‘yan po ay nakakabawas sa kredibilidad nila because susceptible to suggestion ang mga bata,” Aguirre said.

(Senator Hontiveros said children are susceptible to telling the truth. But if the witnesses are under a biased witness like Hontiveros, it lessens their credibility because children are susceptible to suggestion.)

Hontiveros insists that the witnesses, as well as their parents, have given their permission to be put under the custody of Senate through her. (READ: Hontiveros: DOJ, PAO motives for custody of Kian slay witnesses questionable)

“But if at any time the witnesses would change their minds or their families kung saan nila gustong kustodiya, ang prinsipyo ko ay sila ang masusunod,” Hontiveros said.

(But if any time the witnesses or their families would change their minds about who they want to have custody of them, my principle is that they have the last say.)

Delos Santos’ case is being handled by the Public Attorney’s Office (PAO).

The Senator added in Filipino: “PAO is free to talk to these witnesses anytime. The witnesses don’t have to be under their custody to interview them. In fact when the witnesses were interviewed by the PGH on Wednesday, I invited PAO, NBI, CHR. The NBI, CHR and Ombudsman were there, only PAO did not send a representative. – Rappler.com