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Prosecutor blocks release of journalist, unionist despite being cleared of charges

A Mandaluyong prosecutor is blocking the release of journalist Lady Ann "Icy" Salem and unionist Rodrigo Esparago despite a judge's decision that cleared them of charges of illegal possession of firearms and explosives.

Mandaluyong Regional Trial Court (RTC) Branch 209 Judge Monique Quisumbing-Ignacio dismissed the cases against the two in a ruling on February 5, finding the search warrants void and the evidence inadmissible. But the ruling did not expressly order the release of the two.

The Public Interest Law Center (PILC) filed an urgent motion to release the activists on Monday, February 8, but Mandaluyong Senior Assistant City Prosecutor Queruben Garcia has opposed it.

In a 2-page opposition filed Tuesday, February 9, Garcia, claiming they will appeal the decision, said that Judge Ignacio's ruling "has yet to attain finality."

"Sans conclusiveness, the order dismissing the charges against Salem remain subject to reconsideration or appeal, rendering improper her plea for immediate release," said Garcia.

In a pleading again on Thursday, February 11, the PILC said an appeal would be tantamount to double jeopardy.

What does this mean?

Acquittals in general cannot be appealed because doing so would violate the rule on double jeopardy or being tried for the same offense you were already cleared of. 

But there are cases where a person can re-prosecuted.

Section 7, Rule 117 of the Revised Rules on Criminal Procedure said only those who were cleared "without their express consent" are safe from re-prosecution.

Salem and Esparago's cases were dismissed upon their own motions, in which Judge Ignacio decided that the search and seizure were illegal and therefore the pieces of evidence against them were inadmissible.

The PILC argued that a dismissal based on the accused's own motion does not mean there was "express consent" within the framework of existing rules.

Citing a Supreme Court decision in People vs Labatete, the PILC said "with express consent" spells out 3 situations, which do not apply in the case of Salem and Esparago.

  1. If the prosecutor wants to postpone, but the accused doesn't so the court dismisses the charges provisionally;
  2. If the prosecutor or the accused wants a reinvestigation, and the court opts to just dismiss provisionally;
  3. If the accused will act as state witness so the case is provisionally dismissed

Those not being the case for Salem and Esparago, the PILC said theirs is a case of clear acquittal.

"Our rules on criminal proceedings require that a judgment of acquittal, whether ordered by the trial or the appellate court, is final, unappealable, and immediately executory upon its promulgation. Thus, it is immediately executory. The defense invokes the finality-of-acquittal rule," said the PILC in its Thursday pleading.

Garcia's opposition did not cite a rule or a past decision, just that "the order of dismissal has yet to attain finality."

Salem, editor of red-tagged alternative publication Manila Today, and Esparago, a trade unionist, were among the 7 people arrested on Human Rights Day on December 10, 2020, on the power of search warrants by Quezon City Judge Cecilyn Burgos Villavert. (READ: 'Human Rights 7' cases question 'warrant factory' and writs doctrine in Supreme Court)

Villavert was behind the issuance of search warrants that have yielded the arrests of around 58 activists in Manila and Bacolod in 2019, including young mother Reina Mae Nasino, whose infant River died 3 months after being born while her mother was in prison. –

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 or tweet @lianbuan.