DOJ panel ‘suppressed truth’ in clearing Faeldon in shabu case – PDEA

MANILA, Philippines – The Philippine Drug Enforcement Agency (PDEA) said the prosecution panel of the Department of Justice (DOJ) “deliberately suppressed the truth” when it cleared former Customs commissioner Nicanor Faeldon in the P6.4 billion shabu shipment case.

“Close scrutiny of the resolution would lead us to an inevitable conclusion that the Honorable Panel of State Prosecutors, with all due respect, deliberately suppressed the truth about the liability and involvement of the respondents in the illegal importation of the subject dangerous drugs,” the PDEA said in its Motion for Reconsideration submitted to the DOJ on December 8, 2017, a copy of which was recently made available to Rappler.

The panel, headed by Assistant State Prosecutor Aristotle Reyes, dropped the charges against Faeldon on November 23, and only pursued charges of drug importation against fixer Mark Taguba and other businessmen accused of being middlemen in the deal.

The PDEA said in its motion that the DOJ panel tried very hard to look away from the damning testimonies against Customs officials during the hearings at both the Senate and the House of Representatives.

The PDEA said the panel’s resolution did not mention “even a single sentence discussed or made consideration as to the result of the public hearings.”

“If the Honorable Panel exerted effort in giving consideration to the result of the public hearing conducted by both houses, surely, they would have a different decision on the matter, for the probable cause that they should look for in all the cases charged against respondents would clearly be established,” the PDEA said.

Faeldon resigned amid the shabu scandal, but President Rodrigo Duterte has appointed him as deputy administrator of the Office of Civil Defense.

Senate hearings

In a press conference on November 24, Justice Secretary Vitaliano Aguirre II defended his prosecutors, saying it was not their job to obtain and use for their own assessment the testimonies during congressional hearings.

A member of the panel, Associate Prosecution Attorney Joan Garcia, said in that November press conference: “We know that the Senate conducted exhaustive hearings. However, much of the evidence and testimony submitted during the Senate was not given or submitted before our panel. We can only judge based on evidence submitted before us.”

The PDEA’s 70-page motion includes parts of the official transcript from the hearing. Nevertheless, the PDEA said the DOJ violated the Rules of Evidence when it overlooked the Senate hearings.

They cited Section 1, Rule 129: A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.”

“Clearly, the members of the Panel of Prosecutors have capriciously and whimsically disregarded the respondents’ incompetence, gross negligence, and corruption, which are the very reasons of the illegal importation or bringing into the Philippines of the 602.279 kilograms of methamphetamine hydrochloride or shabu,” the PDEA said.

Overreach?

The PDEA said the DOJ’s demand for a more sufficient evidence is an overreach.

The PDEA noted that when the DOJ panel cleared Faeldon et al, they applied the equipoise doctrine. Under such doctrine, when the evidence of both prosecution and defense are balanced, the appreciation of the evidence shall favor the accused.

By applying the doctrine, the PDEA said, “the Honorable Panel unduly arrogated upon itself an authority that solely belongs to the province of the trial courts.”

Faeldon et al are being accused of the crime of drug importation in relation to attempt at conspiracy and violation of Presidential Decree Number 1829, which penalizes the obstruction of apprehension of criminal offenders.

The PDEA accuses Faeldon et al of being “protectors and coddlers.”

The DOJ panel said the PDEA was unable to state with clarity in its complaint the acts of omission supposedly committed by Faeldon and other customs officials.

Resigned customs intelligence director Neil Estrella slammed the PDEA complaint as making “sweeping inferences of wrongdoing” instead of specifying the acts of corruption and incompetence of the respondents.

The PDEA reminded the DOJ that, at this level, there is no need to look for a sufficient evidence to convict the respondents. 

“It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of prosecution's evidence in support of the charge,” the PDEA said.

“The records of inquiries in the Senate would lead us to an inevitable conclusion that the subject officials and employees of the Bureau of Customs have indeed violated Republic Act 9165 when the scheme used by Richard Tan and his cohorts was proven effective because of the clear incompetence of the above-named officials of the Bureau of Customs,” the PDEA said.

No proactive role yet

The DOJ has yet to take a more proactive role in investigating the case, in the absence of an official order by Aguirre to the National Bureau of Investigation (NBI) to conduct a case build-up.

Aguirre usually taps the NBI for high-profile cases. In this case, Aguirre said he couldn’t authorize the NBI for such task because of a memorandum signed by Duterte at the time designating PDEA as the sole agency in the war on drugs.

In the November press conference, Aguirre said he could sign an order to NBI once Duterte signed a new memorandum bringing back NBI to the war on drugs. The NBI was brought back to the war on drugs in December.

Asked for an update, Justice Undersecretary Erickson Balmes told Rappler on January 24 that the DOJ was still “studying” whether to tap the NBI for the shabu shipment case.

The case against Taguba and the other middlemen, meanwhile, has been refiled with the Manila Regional Trial Court.

Faeldon and other public officials are the subject of a separate investigation by the Office of the Ombudsman, which notes of Taguba's testimony implicating the so-called "Davao" group. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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