WHERE IS JUSTICE, MY SON?

  IMPERFECT SUICIDE, ARROGANT COVERUP

Ensign Phillip Andrew Pestaño while yet a cadet at the PMA

(Note: I am re-publishing this article I wrote and posted on my Facebook wall on and published in Dyaryo Magdalo in January 2011. This is being published because JUSTICE HAS BEEN HALF WON AFTER A YEAR THIS WAS PUBLISHED.  

THE OFFICE OF THE OMBUDSMAN REVERSED THE RULING OF THEN OMBUDSWOMAN MERCEDITAS GUTIERREZ to file murder charge before the Sandigabayan against 10 Navy officers identified as Capt. Ricardo Ordoñez; Cmdr. Reynaldo Lopez, Hospital Man 2 Welmenio Aquino, Lt. Cmdr. Luidegar Casis, Lt. Cmdr. Alfrederick Alba, Machinery Repairman 2 Sandy Miranda, Lt. Cmdr. Joselito Colico, Lt. Cmdr. Ruben Roque, PO1 Carlito Amoroso and PO2 Leonor Igcasan.

Thank you, Madam Conchita Carpio-Morales. )

 

WHERE IS JUSTICE, MY SON?

 By BERTENI "TOTO" CATALUÑA CAUSING


     Really, heroes die in mysterious ways. On the face, it looks in vain and pain. In the inside, it is one big gain not drain.

     Often a hero’s death is never resolved, never given justice, never given closure.  As if it is the mystic that makes magic. As if that issue is designed to stay forever so that heroic flame would burn forever.

     National Hero Jose Rizal’s trial has remained a mystery why he was convicted to die on December 30, 1897 before a firing squad.  Was there injustice in the hands of prosecutors, his lawyer and his judge?

     National Hero Andres Bonifacio’s trial has also remained a mystery why he was convicted of treason when there was no country that existed at that time.  Was there conspiracy among General Emilio Aguinaldo and his ilk?

     Modern National Hero Ninoy Aquino’s death at the tarmac of then Manila International Airport has remained a mystery.  Who killed him?  Who ordered to shoot him as he descended from the stairs of a plane from the United States of America?  His wife Cory became the president but justice eluded them.  His son Noynoy is now the president but justice remains elusive as ever.

        Well, this is another story of a mysterious death.  Another story of heroism so very rare among the men and women who marched out of the Philippine Military Academy (PMA).   The rarity is like looking for a needle in a heap of soil.

Ensign Pestaño already a navy officer

         Once upon a time in September of 1995, this 23-year-old Navy ensign from the “Maalab” Class (Batch 1993) of the country’s only school for leadership in soldiery silently defied his father’s wish for the love of country even though the son knew death waited for him on his ship.

        As written by Fr. James Reuter, this was how the last conversation occurred for the father, Felipe Pestaño, and his son, Philip Andrew Pestaño.

        “Please, son, resign your commission. Give up your military career. Don’t go back. We want you alive. If you go back to that ship, it will be the end of you!”

         “Kawawa ang bayan!”  This, the young man uttered the last on the eve of his death he knew was coming.

        Yes, “Kawawa ang bayan!” was the last sentence uttered with a burning passion by the ensign, as if it was the shortest version of the “Mi Ultimo Adios” poem that was spoken of the soul of Rizal.

        It was the same substance spoken by the national hero when he wrote that patriotic goodbye on the eve of his death he knew was coming, which in original Spanish language reads:

              "Adiós, Patria adorada, región del sol querida, 
              “Perla del mar de oriente, nuestro perdido Edén!  
              “A darte voy alegre la triste mustia vida, 
              “Y fuera más brillante, más fresca, más florida, 
              “También por ti la diera, la diera por tu bien.”

              In English, it was translated by Edwin Agustin Lozada as follows:

               “Farewell, beloved Country, treasured region of the sun,
               “Pearl of the sea of the Orient, our lost Eden!
               “To you eagerly I surrender this sad and gloomy life;
               “And were it brighter, fresher, more florid,
               “Even then I’d give it to you, for your sake alone.”

        Looking a bit at the last line of the first stanza of the poem, he was referring to the country when he wrote “you.”  That he offered his life to his country. “To you, for your sake alone. “

         Correlating to Philip’s circumstances, he too was offering his best life and career as a military officer for the country alone.   This is encapsulated in his words: “Kawawa ang bayan!”

         Thus, it is very clear that Ensign Phillip Pestaño died a hero’s way.

  
Never-ending search for justice


        So many accounts of various writers on the issue are one in saying that since the officer died on September 27, 1995, the father of Ensign Phillip and his mother, Evelyn, have never stopped searching for justice insisting he died not by suicide but that he was murdered.

        Published accounts said that the parents never stopped pressing for justice even if Admiral Pio Carranza warned them they would lose their business with the Philippine Navy if they would not stop.

        Carranza was the commander or the Flag-Officer-In-Command of the Navy at that time.             

        The parents never stopped even after the National Bureau of Investigation, the Western Police District, and other investigating agencies officially ruled that it was a case of suicide.

        His classmates at the PMA wrote then Senate President Marcelo Fernan (formerly Supreme Court Justice). This led to a Senate investigation that produced Senate Report 8000.  It found that Phillip was murdered; debunking the findings of the NBI, the Navy and the WPD that he committed suicide.

        This gave spirit to the fighting parents. But the Ombudsman was never coming to their side.

        Nevertheless, armed with the Senate report, Felipe and Evelyn filed their complaint before the Ombudsman.  Nothing happened.

        One Enrique Angeles helped the Pestaño couple to file a complaint before the United Nations Committee on Human Rights.

        The UNCHR adopted its resolution of the issue on March 26, 2010, finding out that Phillip was bludgeoned to death and he did not commit suicide.                

        Despite this finding of the international body and the finding of the Senate, the Office of the Ombudsman dismissed the complaint for murder and grave misconduct filed by Pestaño parents against several Navy officers.

        The Ombudsman ruled that there was no sufficient evidence to arrive at a fair and reasonable resolution that the crime of murder was committed and that those accused were likely guilty thereof.

        The decision was released August 2, 2010, just after the Pestaño parents filed an impeachment complaint against Ombudswoman Merceditas Navarro Gutierrez.

        Thus, it was said that the dismissal of the case was a retaliatory act by her.

        The manner the parents of the victim have been fighting for, it is expected that they would fight tooth and nail until the Supreme Court to seek justice for their son.

        Nevertheless, this is so painful. After more than a decade of looking for vindication and after seeing two chances in the reports of the Senate and the UNCHR, they would only find their desire stopped by the Ombudsman.

        This must have prompted the father of Phillip to say: “Where is justice, my son?”

Ensign Pestaño on his boat.

The background


        Prior to the death of Ensign Pestaño, he was reported to have discovered that the cargo that was being loaded to BRP Bacolod included logs illegally cut down and 50 sacks of flour that was said to be shabu worth billions of pesos.

        The young idealist disapproved the cargo.  His superiors told him: “Please! Be reasonable! This is big business. It involves many important people. Approve this cargo.”

        He never signed the approval.

        It was also reported that his parents got two phone calls telling them: “Get your son off that ship! He is going to be killed!”

        Phillip was given a pass to go home. It was thereafter that the last conversation with his dad occurred.

        As said above, his dad incessantly begged to him to resign from the military and never to go back to the boat again.  But he rejected his father’s love in favor of the country.  He insisted: “Kawawa ang bayan!”


Findings contrary to suicide


        The Senate cannot believe it was suicide. It reasoned out that there was no trace of blood sprays on a white wall or the bed.

        The Senator Marcelo Fernan report also noticed that there was no bone tissue or any human tissue that was found on the bed, the floor, or the wall.

        The report concluded that Ensign Pestaño was killed somewhere else and brought inside his cabin.

        “Absence of blood spatters, bone fragments or other human tissues is physical evidence more eloquent than a hundred witnesses,” the senate report said.

        Substantially similar are the findings of the UNCHR.

        Astonishingly, the Ombudsman ruled the other way.

        That is, despite the fact that material pieces of evidence led Dyaryo Magdalo to opine there was clear probable cause that the crime of murder was committed and clear probable cause that the those accused by the Pestaño parents, and those who were not included in the complaint affidavit, committed the crime of murder that they must be brought to the court for trial.

        On the part of then Senator Alfredo Lim, he delivered a privilege speech saying: “Then who did?”
Lim named one Lt (jg) Carlito Amoroso (PMA class ’94), who moonlighted as a close-in security for Admiral Carranza, as the most likely who did the act of actually killing Pestaño.

        “Strong evidence linked him (Amoroso) to the crime as the possible gunman,” Lim declared, although Amoroso was not a crew member of BRP Bacolod City.

        Lim said that Amoroso became scarce since the death of Pestaño and he noticed that the Navy was not interested in locating him.

        “To date, as like the others, (Amoroso) got off scot-free,” Lim fumed. “Was there an intelligence officer who also boarded in Cavite?”

        Lim protested heavily why Ensign Joselito Colico was not even charged administratively after admitting that he wiped the fingerprints on the .45 caliber pistol. “This tampered with evidence,” Lim protested.

        Lim further revealed in his privilege speech that the ship commanders, Capt. Ricardo Ordoñez and executive officer Lt. Cmdr. Ruben Roque, already left the Navy.  Obviously avoiding any liability.

        Lim also said that Petty Officer 2 Zosimo Villanueva, the one who tipped Pestaño about the shabu inside 20 sacks of the rice aboard the ship, was reported to have been washed away in a sea tragedy a week after Pestaño’s murder occurred.

        Lim also said that Ensign Alvin Parone died in an unsolved murder after he was scheduled to talk to Pestaño’s parents.

        Lim said that the vessel’s radio operator, Petty Officer 3 Fidel Tagaytay, vanished when summoned to testify.

        “Alam ko po marami siyang alam kasi siya ang duty operator, (“I know sir he knew a lot because he was duty operator”), Tagaytay’s wife Leonila wrote then Defense Secretary Avelino Cruz.

         To the contrary, it was officially declared that Tagaytay had gone AWOL (absent without leave).

Our language is truth, our spirit is liberty.

Dyaryo Magdalo’s ruling

         At 8:10 in the morning of September 27, 1995, his ship, BRP Bacolod, was to dock at the Headquarters of the Philippine Navy on Roxas Boulevard after a one and a half hour of voyage from Sangley, Cavite, which normally takes half an hour.

        Aboard were eight officers and 42 enlisted men. It was said that somebody noticed that deck and cargo officer Pestaño was not at his post so that Ensign Colico was ordered by Lt. Cmdr. Ruben Roque to look for him.

        It was reported that Colico knocked on the cabin of Pestaño but nobody answered, compelling the former to open the door with a master key and he found Phillip dead.

        When seen, Phillip’s body was lying perpendicular or across his bed with his two feet resting on the floor.

        A pistol without a magazine was found between his feet.  The magazine clip was found beside the gun.

        There were a few blood stains seen beneath his head.  Drops of blood were also seen in the left corner of the bed, the corner nearest the door.

        On the floor area located at the foot of the bed in the said corner were seen other drops of blood.

        There was no pooling of the blood that was noticed under the head or anywhere in the room.

        If Ensign Pestaño was indeed killed or really killed himself inside his cabin, heavy pool of blood should develop below his head.  It is because it is but natural that when the person is dead, the pressure acting on the blood is dictated by the law of gravity and no longer by the pump of the heart.   So that blood should drift out heavily on the exit point and entry point of the bullet in his head.

        Now, both hands of Phillip were stretched out straight touching both sides of his body with the right hand’s edge resting on the middle just below his waist.   It is what happens with the hands of a cadet when he stands in attention while his right hand is placed hanging in front of his body.   This alone is inconsistent with the normally outstretched hands away from the body after a victim has shot himself in the head or on his temple.

       Now, another unexplainable circumstance is the place where the spent shell was found.

       The empty shell was found on the bed, at the right side of the body of Pestaño. The shell was lying about three feet perpendicular from the right side of his waist.

       Now, what was being tried to be impressed was that Ensign Pestaño was sitting first on the edge of his bed with his back directed across the bed. 

       And if he is right-handed, as he is, and he would shoot his right temple while he would be facing away from the bed, the chamber hole of the pistol must be facing in the direction away from the bed, too.   This is because the hole where the empty shell throws off after a live bullet is fired is always in the right side of any pistol.

       Such that if the right side of the gun is facing away from the bed, it is impossible for the spent shell to fly to the bed.  It should fly away from the bed and land on the floor.  With the downward trajectory of the bullet as it traveled Pestaño’s head, it is improbable that he would hold the gun with the bottom of the grip directed to the ceiling.

       Another circumstance that makes suicide claim impossible to happen is the location where the pistol and the magazine were allegedly found.

       The gun was reported to have been found lying with its right side touching the floor.  Now, the magazine was not found inside the gun.  The magazine was located just about three inches away from the pistol’s edge farthest from the bed.

       The first question here is this: Was it possible for the magazine clip to remove itself from the gun after the pistol is fired?

       No way!

       The second question is: Why was it that there was no more live bullet inside the magazine?

       The third question is:  Was it possible for the pistol to drop between the feet of the suicide victim after the gun is fired?

       Highly improbable!

       Under that position, while it would be possible for the gun to loosen out of the hand of the suicide victim while sitting and pulling the trigger, the only thing that would happen should be that the gun recoil back to fall to the bed as it would slightly be pulled towards the bed by the hand of the suicide victim while the victim would be falling on the bed.

       Now, there was no blood tissue, or bone tissue, or flesh tissue that was found. This is contrary to the natural law or physics that as the bullet exits in the other end of the head it will bring along some blood and some flesh to be sprayed on the wall.  The wall was clean white and there was no single droplet of flesh tissue or blood that was found.

       If the bullet was tested for presence of a human tissue, Dyaryo Magdalo bets its reputation that nothing can be found therein.  Instead, it is the opinion of this weekly paper that the said bullet found in the cabin was a simulation shot and did not hit any part of the body of Pestaño.

       Now, Dyaryo Magdalo again bets its name that this bullet was fired by pressing the muzzle of the pistol on a thick pillow, the reason why very fine strands of fiber was found clinging to the nose of the bullet.

       And if the bullet would be subjected to DNA test, it will surely show that it will not give a trace of blood or flesh in it.

       These circumstances are very clear to declare without reasonable doubt that murder was committed.

       Another thing, the handwriting in the alleged suicide note is clearly different from the records of handwritings of Ensign Pestaño.

       One more thing is that:  Why is it that forensic result shows that the trajectory of the bullet from the right temple to the left ear is downward, while the deformed spot on the steel door jamb caused by a bullet is located horizontally in the same level of the head of Pestaño if he were sitting?  Remember that the temple is always higher than the ear when the head is in an upright position.

       Is it possible for a person resolved in killing himself to tilt his head to the right so that the bullet would enter the right temple and exit just beneath the ear?

       Or, is it possible for a person to raise the gun with the muzzle lower than the level of the firing pin?

       Now, another puzzle.

       Why Pestaño had injuries on his left ear where the bullet exited?

       Still another: Why is it that none of the hands of Pestaño had no gun powder when subjected to paraffin test?

       Also, why was there no powder burns on the entry point of the bullet?

       And the clincher that solved the jigsaw puzzle to know where Pestaño was killed: Why is it that there is a bullet hole in the most bottom layer of a three-drawer study table placed in the adjacent cabin?

       Pestaño’s cabin shared one toilet with the adjacent cabin and there is a door for every side of the toilet for each cabin.  This means that one can go from one cabin to another by passing through the toilet.

       So that when Pestaño was found inside his cabin, his body must have been dragged thereto from the adjacent cabin through the toilet.

       As to the question of whether there was probability that those accused by Pestaño’s parents were likely the ones who are guilty, Dyaryo Magdalo answers in the positive.

       First, this is just a question of probability and not one conclusion beyond reasonable doubt.

       Second, the law requires only sufficient probability to justify filing of a case in court and to hold the accused for trial.

       Third, the motive could be proven by the fact that Carranza threatened the parents to drop their bid at justice.

       Fourth, it can be established from the books of the ship that there were logs that were loaded and discharged even though the 20 sacks of shabu disguised as flour cannot be found.  And if these books were lost, this fact adds up to the proof that the officers of the boat were guilty for no one could have the access to steal the books without the knowledge of the captain or his assistants.

       Fifth, the call to the parents can add up to the evidence to establish that the motive of the killing was connected to the cargo.

       Sixth, these circumstances if proven are enough to prove beyond reasonable doubt that those who controlled the ship are guilty.

       The degree of proof when it is considered beyond reasonable doubt should only be enough to say that the judge in conscience is convinced.

       Seventh, the admission of Ensign Colico was enough to convict him of at least obstruction of justice and for being accessory to the crime.

       And when Colico is pressed, he will likely squeal who ordered him to wipe the gun clean of fingerprints.

       So that these circumstances are enough to prove that the Office of the Ombudsman, particularly Overall Deputy Ombudsman Orlando Casimiro and Gutierrez, evaded their positive duty, enough ground for impeachment for the culpable violation of the Constitution.