USING DE LIMA LOOPHOLE NO REASON
TO THROW OUT ORTEGA MURDER CASE
ALAB ng Mamamahayag (ALAM) leaders is blaming Justice Secretary Leila De Lima for the loophole in the investigation case of murder against broadcaster Gerry "Doc Gerry" Ortega, but the same is not sufficient to justify the Court of Appeals in throwing to the trash can the finding of probable cause that former Palawan ex-governor Joel T. Reyes and company are likely guilty thereof and that they must be tried.
"The most basic issue in the criminal indictment in court when probable cause is already determined is whether the office that filed the information has the authority to file in court a criminal information sheet. It does not matter how the authority came out with the finding of probable cause. The remedy for any defect in the procedure that led to the determination of probable cause is to ask the court for a reinvestigation and not to ask the court to completely reject the indictment," said Berteni "Toto" Cataluña Causing, president and chief legal counsel of ALAM.
Causing opined that it was improper and unwarranted for the CA to throw out the determination of probable cause by the Department of Justice (DOJ).
The CA reasoned out that the first investigating panel was still existing when De Lima created the second panel to handle what she termed as "re-investigation."
"The CA decision is faulty, with due respect to the CA and Justice Leoncia Real-Dimagiba, the ponente of the CA decision that affirmed the finding of the first panel that dismissed the case against Reyes and his brother Mario Reyes, the mayor of Coron, Palawan at the time Ortega was killed while shopping at a used-clothing store in Puerto Princesa," said Causing, who has been charged with disbarment and libel by Janet Lim-Napoles for being the blogging about the lavish lifestyle of her daughter Jeane.
Causing noted that the falsity of the legal theory of the CA begins from the presumption that the first panel was still existing at the time De Lima issued a written order directing the creation of the second panel to handle the re-investigation.
"Why will the CA say that the first panel was still existing when it is the CA itself that stated that the first panel disposed of the motion for reconsideration filed by the Ortega family against the first panel's resolution exonerating the Reyeses for insufficiency of evidence?" Causing started.
"Right at the time the first panel issued the order denying the motion for reconsideration, the first panel's life or existence automatically expires. It has become functus officio after it has completed its task. It is like the board of election canvassers. As soon as they finished proclaiming the winners, the panel or board automatically disbands by operation of the law. It is the same as what happened in the first panel of investigators. Once it issued the last and final order, which happened to be the denial of the motion for reconsideration filed by the Ortega family, the life of the first panel is dead at that very moment. It had nothing more to do. By operation of law, it was already automatic that the first panel was disbanded at that time,” Causing explained.
Causing further said:
“After the denial of their motion for reconsideration, the Ortega family through their lawyer Alex Avisado filed a petition for review before Secretary De Lima, attaching therein new set of evidence.
“Under the National Prosecution Service Rule on Appeal, a party aggrieved by the decision of a panel may file a review of the findings of the panel or a re-investigation.
“If it is for review, the appealing party did not submit additional evidence. If it is for re-investigation it means that the aggrieved party submitted more evidence.
“The Secretary of Justice has an option to treat the petition for review, although incorrectly named that should have been a petition for re-investigation, as a re-investigation if the petition submitted new pieces of evidence.
“She can do the work of re-investigating by herself or by delegating it to another official or by creating a panel or by remanding the work to the original investigating body or officer.
“In the case of the petition for review of Ortega that added new evidence, De Lima issued an order forming a new panel to conduct a re-investigation and not a review.
“When De Lima formed the new panel, the first panel was already not existing.”
“Clearly then, the CA erred although there was that loophole committed,” Jerry Yap, chairman of ALAM, said.
“What is important is that the panel that filed the indictment against the Reyeses had the required authority to file the murder case in court,” Causing stated.
“The remedy of the Reyeses was to challenge the findings of the second panel and not to invoke that the first panel was still alive,” Causing said.