Reyes brods cleared due to technicality?

Posted at 11/29/2012 11:02 AM | Updated as of 11/29/2012 11:45 AM

MANILA, Philippines – Lawyers of opposing camps in the Gerry Ortega murder case quarreled on-air Thursday morning over a Court of Appeals resolution that nullified the creation of a justice department panel to investigate the case.

Ferdinand Topacio, lawyer of ex-Palawan Governor Joel Reyes, said it is clear from the Court of Appeals ruling that Justice Secretary Leila de Lima committed grave abuse of discretion when she decided to create a second panel of prosecutors in the preliminary investigation in the killing of environmentalist Gerry Ortega.

It was the second panel that recommended the indictment of Reyes and several others for the murder.

Topacio said the National Prosecution Service has guidelines that provide for the procedure that if a person is exonerated or indicted, “the party that is not satisfied may appeal to the Secretary of Justice.”

“There is no provision for the creation of a second panel to review the findings of the first panel to receive additional evidence. This is an aberrant procedure applied only to the Reyes brothers…It is abuse of discretion,” he told Mornings@ANC.

“She could have junked the findings of the first panel, which is a right provided for her,” he added.

Topacio noted that de Lima had tried to distance herself from the Ortega case because of previous ties with the Reyeses. However, he noted that the justice chief has several undersecretaries which she could have ordered to review the case.

“An undersecretary could have reversed the ruling of the first panel,” he said.

In its ruling, the CA noted that the creation of the second panel and the order for reinvestigation are within the authority of the Secretary of Justice. However, it said de Lima committed grave abuse of discretion "when she refused/failed to exercise her power to review the resolution of the original panel despite a petition for review" filed by the Reyes' brothers.

The appellate court also ruled that there was grave abuse on the part of the second panel "when it exceeded the authority vested upon it by the Secretary of Justice which was to assess the admissibility of the additional evidence submitted during the investigation, but issued a resolution modifying the resolution of the original investigating panel, which it did not have the authority to, as the same rests exclusively with the Secretary of Justice."

Meanwhile, lawyer Alex Avisado, counsel for the Ortega family, said the basis to clear the Reyes brothers of the crime seemed to be hinged on a mere technicality.

He said the case is different from the Lacson case wherein the appellate court dismissed the information and recalled the warrant of arrest.

“Nothing of the sort happened in the Reyes case. It is only the issue of technicality. The criminal case was not dismissed. The warrant of arrest was not recalled. It is very different. In the Lacson case, the CA ordered the quashal of the warrant of arrest,” he said.

He also noted that the CA resolution in the Reyes case already noted that it cannot order the dismissal of the criminal case since the decision is vested with the regional trial court judge.

He added: “It does not follow because there is no acquittal by presumption. There is no such thing in our criminal jurisprudence.”

He said the Ortega family is set to file a motion for reconsideration before the CA.

For his part, Topacio said the nullification of the second panel of prosecutors will make the entire case collapse.

“The creation of a second panel was null and void. The legal implication of that is that all of the acts of the panel are also null and void including resolution finding probable cause and the information filed in court, which is the basis of the warrant of arrest. Without the panel, there should be no resolution, no information and no warrant,” he said.