Lawyers to activists: Press legal pushback vs trumped-up charges

BAGUIO, Philippines – After an Abra court’s dismissal on May 11 of a rebellion case against six activists and a community journalist in the Cordillera Administrative Region (CAR) and the Ilocos Region, their lawyer advised them to file legal cases against their tormentors.

Two other human rights lawyers also gave inputs on legal redress mechanisms available for activists repeatedly charged – and cleared – in a string of similar cases.

They suggested civil cases for malicious prosecution cases, and filing for damages as compensation for the impact brought by trumped-up charges.

Rappler reviewed cases against at least 13 activists who faced repeated arrests from 2016 to 2022, under then-president Rodrigo Duterte’s government, and furnished the lawyers with the background.

Some findings from the review:

• In one case, the military filed a new case using the same information in a case a judge had dismissed.
• In another, the soldier-witnesses altered their affidavits weeks and months after signing these to drag a health worker to a murder case.
• A high-profile leader of the Cordillera People’s Alliance found himself facing a murder case more than a thousand kilometers from his base of work. 
• A few court decisions raised similar concerns that soldiers were merely echoing the contents of what activists describe as “red tagging” propaganda.

“I have advised them to file civil cases for damages even on a small amount,” lawyer and Baguio City Councilor Jose Molintas told Rappler on Tuesday, May 16.

Molintas was co-counsel in the Abra rebellion case, filed by the 24th Infantry Battalion, against Windel Bolinget, Jennifer Awingan, and Stephen Tauli of the Cordillera People’s Alliance, development workers Sarah Abellon-Alikes and Florence Kang, peasant rights advocate Lucia Lourdes Gimenes, and Nino Joseph Oconer, the Ilocos correspondent of Northern Dispatch.

Judge Corpuz Alzate of Bangued Regional Trial Court (RTC) Branch 2 on May 11 ordered their names to be excluded from the information for lack of probable cause.

Duterte strategy

Molintas said the activists could file civil cases for “damages and sufferings out of the false charges.”

“Example, the mental anguish, actual detention, sleepness nights,” he added.

The May dismissal is the latest victory for activists who experienced what health worker Rachel Mariano described as “relentless judicial harassment” after she battled three cases and spent a year in jail.

Molintas lawyered for Bolinget when authorities charged the CPA leader for the 2018 killing of a Lumad leader in Kapalong town, Davao del Norte – 1,264 kilometers southeast of Bagiuo.

A Davao del Norte court issued a warrant for Bolinget’s arrest in September 2020. It dismissed the case in July 2021 after the prosecution acknowledged the respondents’ evidence that they were somewhere else when the killing happened.

Bolinget was included in the Department of Justice’s 2018 petition to proscribe the Communist Part of the Philippines and its New People’s Army as terrorist organizations, but his name was later removed. 

Philippine National Police also included him in a “confidential memorandum” ordering a dossier of individuals labeled as NPA leaders. 

Pattern

Like Bolinget, several of those named in the recent Abra case have had to contend with previous charges, which courts eventually dismissed.

For Alikes, the January 2023 rebellion charge is her fifth legal victory since 2017.

The police first arrested her in February 2017. They filed arson and robbery complaints for her alleged involvement in the rebels’ torching of Philex Mining Corporation dump trucks in Itogon, Benguet. The court dismissed the case in the same year. 

Then from July to October 2017, the 81st Infantry Battalion based in the Ilocos region filed multiple frustrated murder and homicide cases against Alikes, Mariano, Sherry Mae Soledad, Joan Villanueva, and Asia Isabelle Gepte. 

The military claimed they were part of the NPA units that clashed with government soldiers in the towns of Salcedo, Sigay, and Del Pilar. 

Judge Eilyn Castillo-Rimando of the 8th Municipal Circuit Trial Court Branch in Galimuyod town dismissed the Salcedo clash case on September 16, 2022.

Her ruling said soldiers had “preconceived” perceptions against the women, “shaped even prior to the actual happening of the incident, which result(ed) [in] identifying the assailant(s) even if they were not the perpetrators of the offense.”

In September 2018, Mariano voluntarily submitted herself to the court.

She faced a murder charge filed by the same military unit, this time for allegedly joining the October 2017 NPA attack that killed a soldier in Quirino town, also in Ilocos Sur. She spent a year in detention before Judge Mario Anacleto Bañez of Ilocos Sur RTC Branch 25 acquitted her.

He cited Mariano’s strong alibi, complete with witnesses and affidavits that she was in Baguio City, a 10-hour drive from the encounter side. The judge also noted how soldiers changed their original affidavits to include Mariano weeks or months after undertaking these.

Gunmen killed Judge Bañez in San Fernando, La Union on November 5, two months after Mariano’s acquittal. He was the sixth judge killed under the Duterte administration. No one has been charged for his murder.

The military on August 31, 2022, filed a new complaint against the five women for allegedly committing war crimes in the August 2017 Sigay clash.

The Cordillera Human Rights Alliance (CHRA) said the prosecutor dismissed the December 2022. The rights group said the complainants used information almost copy-pasted from the case the Del Pilar-Sigay Municipal Circuit Trial Court had dismissed in February 28, 2020.

Molintas, a legal adviser in the case, said the complaint was “inconsistent with the earlier charge,” which accused the five women of the common crimes of murder and frustrated murder. International humanitarian law (IHL) cases refer to political crimes.

“They (state forces) should be consistent in what they are filing,” the lawyer said. “They should charge them with political offenses, like rebellion. But since it is more difficult to prove political offenses, the practice has been to charge them (accused NPAs) of common crimes,” he added.

‘Bad faith’

Rappler shared the details of the Cordillera and Ilocos Region cases with Free Legal Assistance Group (FLAG) Metro Manila regional coordinator Theodore Te and former Ateneo School of Government dean Antonio La Viña.

They shared insights on these developments and suggested remedies for other activists in a similar plight.

“This strategy by the police, military, and prosecutors must be condemned. This is forum shopping of the worst kind, which the law and the Bill of Rights do not allow,” La Viña told Rappler.

“Human rights lawyers should develop a counter strategy against this approach of the state, maybe challenge such prosecutions as politically motivated,” added La Viña, the defense counsel of other activists facing similar cases.

He pointed out the Supreme Court 1990 decision on the case of (movie director Lino) Brocka vs Enrile, on political prosecutions being null and void. The case stemmed from the January 28, 1985, arrests of Brocka, fellow film director Behn Cervantes, and several companions.

The defendants, the High Court said, clearly showed that the criminal proceedings had become a case of persecution, undertaken by state officials in bad faith.

CPA leaders

Cordillera activists John “Tanglaw” Lipato (Mountain Province) and Beatrice “Betty” Belen (Kalinga) have also faced charges. 

Lipato is the secretary-general of the elders’ organization Movement for the Advancement of Inter-tribal Unities and Development. Belen is a regional council member of Innabuyog-Gabriela. Both CPA affiliates groups have been red-tagged.

The Office of the Provincial Prosecutor Mountain Province dismissed on November 6, 2020 a murder complaint against Lipato for the September 2020 murder of Bauko town anti-corruption advocate Salvador Liked after the main witness recanted his statements.

Belen walked free in February 2021 after four months in detention that followed an early morning October 25, 2020 raid on her house.

Judge Randy Bulwayan of RTC Branch 39 in Lubuagan town dismissed her illegal possession of explosives case for lack of evidence. He ruled that three rifle grenades were inadmissible evidence as the items “were neither particularly described in the (search) warrant nor seized under the plain view doctrine.”

Belen in 2018 received the “Gawad Bayani ng Kalikasan” award for her long-term advocacy opposing Chevron Energy Company’s Kalinga geothermal energy project.

‘Malicious prosecution’

Te told Rappler, “The most obvious remedy/redress available to them (activists) would be to sue civilly for malicious prosecution.”

Te said the Supreme Court has handed down the elements of malicious prosecution:  

• The prosecution did occur, and the defendant was himself the prosecutor or that he instigated its commencement
• The criminal action finally ended with an acquittal
• In bringing the action, the prosecutor acted without probable cause
• The prosecution was impelled by legal malice – an improper or sinister motive

In a June 8, 2020 ruling, the High Court said the essence of malicious prosecution is not the filing of a complaint based on the wrong provision of law, but the deliberate initiation of an action with the knowledge that the charges were false and groundless. – Rappler.com