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SPECIAL APPEARANCE FOR PROFESSOR JOSE MARIA SISON

Republic of the Philippines
KAGAWARAN NG KATARUNGAN
Department of Justice Manila

 

DILG-PNP-CI DG-AOCBCD, et.al.,

Complainants,

-versus

JOSE MARIA SISON, et. al.,

Respondents.

I.S. 2003-043

For: Murder/Frustrated Murder

x -------------------------------------------- x

SPECIAL APPEARANCE
FOR
PROFESSOR JOSE MARIA SISON

Statement of the Case

The original case initiated by the government of the Republic of the Philippines (GRP) involving the killing of retired colonel Rodolfo Aguinaldo and his aide P02 Joey Gam, and the wounding of Amelia Soriano on June 12, 2001 was filed by the PNP Provincial Command of Cagayan in the Prosecutors Office of Tuguegarao City. The respondents in this case were Felix Robregado, Gerard Mendoza and Iner Bulusan. The complainant PNP of Cagayan Province claimed that the three respondents were members of the New Peoples Army (NPA) Fortunato Camus Command and the Communist Party of the Philippines (CPP) Regional Party Committee of Cagayan Valley. Without admitting that there is sufficient evidence to establish probable cause against the three respondents, it is clear that they were charged as perpetrators or principals by direct participation. And, as we shall discuss later, this in itself is a violation of the doctrine of political offense.

On 28 January 2003, more than one (1) year and seven months after the incident, the GRP initiated another criminal complaint, this time through the Criminal Investigation and Detection Group Anti-organized Crime and Businessmens Concern Division of the PNP. Included as additional respondents in this new complaint are Prof. Jose Maria Sison, seven alleged officials of the NPA Fortunato Camus Command and/or the CPP Regional Party Committee of Cagayan and several “John and Jane Does.”

In the first Resolution dated 10 November 2004 of the Department of Justice (DOJ) under then Secretary Simeon Datumanong, the three-member panel composed of prosecutors Aristotle Reyes, Melvin Abad and Nestor Lazaro, with the approval of Chief State Prosecutor Jovencito Zurio, dropped Prof. Sison from the criminal charge on the ground that “since it is of public knowledge and an established fact that Jose Maria Sison presently enioys recognition of being a political refugee who now resides in Utrecht. Netherlands, our criminal iustice system iust could not acquire iurisdiction over his person at the moment” (p. 5 underscoring is ours). However, on 01 December 2005, more than one year after the first Resolution was promulgated, the DOJ under the incumbent Secretary Raul Gonzalez, invoking “automatic” review “modified” the first Resolution and ordered the amendment of the Informations by including Prof. Sison therein.

No explanation was given by Secretary Gonzalez why he conducted motu propio a so called “automatic review,” a term not found in our statutes or in the rules. The records do not show and none was cited in the Gonzalez resolution that additional evidence was adduced or considered to justify the inclusion of Prof. Sison in the amended informations. The records do not show that another preliminary investigation or additional setting of preliminary investigation was conducted against Prof. Sison between the first and the second resolutions.

The first Resolution states that the preliminary investigation was set on March 25, 2003, April 11 and 21, 2003 and July 21 and 28, 2003. The records however, do not show any valid service of subpoena and return of service on respondent Prof. Sison. Despite an entry of Special Appearance on 25 March 2003 by the Public Interest Law Center as counsel for Prof. Sison, no notice of preliminary investigation or of the two DOJ Resolutions or of any legal processes in this case was ever received by Prof. Sisons counsel.

Significantly, the first Resolution did not explicitly find probable cause against Prof. Sison on the basis of the evidence. The first Resolution merely speculated that “had Jose Maria Sison xxx been in the Philippines, there would speculation, and on hearsay evidence, baseless conclusions, unreliable and patently concocted sworn statements coming from former NPA rebels-turned military assets and other inadmissible and incredible evidence, Secretary Gonzalez motu propio modified the first Resolution under his predecessor and ordered the inclusion of Prof. Sison in the informations. Equally significant is the fact that while Secretary Gonzalez ordered the filing of criminal charges in court against Prof. Sison, he also noted that compulsory court processes against Prof. Sison shall be “on hold” “to await the eventual acquisition of jurisdiction over the person of the respondent Jose Maria Sison to answer for his actions” (p. 3 Resolution dated 01 December 2005).

GRPs Evidence against Prof. Sison

GRPs case against Prof. Sison rests on mostly irrelevant, inadmissible and incredible sworn statements and documentary exhibits which are contained in the case files. We studiously read the entire records and have taken pains to determine those that are relevant to the GRPs case against Prof Sison and to the issues we raised in this submission.

  1. Indisputably, GRPs evidence on the killing and wounding of the victims did not implicate, insinuate or even mention Prof. Sison as a perpetrator or coconspirator. There is no iota of evidence that he knew any of the three victims or had any motive to harm them. There is absolutely no evidence of any overt or covert act attributed to Prof. Sison in the commission of the common crime. The police and military investigation reports and the sworn statements of complainants and witnesses in the incident are totally bereft of any evidence against Prof. Sison (see Sworn Statements of Lerma Aguinaldo dated June 19 and 21, 2001; complaint affidavit of Asuncion de Garo dated June 20, 2001, Sworn Statement of Amelia Soriano dated June 15, 2001, affidavit of SP02 Avelino Guinukay dated June 21, 2001 and affidavit of P01 Charlemagne Tabije dated June 20,2001).

  2. The relevant documentary evidence consists of the alleged organization structure of the CPP/NPAINDF; July 4, 2001 issue of Ang Bayan, the alleged official publication of the CPP/NPAINDF; and alleged fax message of the Fortunato Camus Command dated June 13, 2001 claiming responsibility for the incident as a political act of revolutionary justice. These documents are heresay and inadmissible evidence as to the truth of their contents. More importantly, there is nothing in any of these documents that links Prof. Sison to the killing and wounding of the victims or to the CPP/NPAINDF. At best, the documents show that the CPP/NPAlNDF are a genuine revolutionary movement with a concrete program for the social and national liberation of the Filipino people and its own system of revolutionary justice.

  3. GRP’s remaining “evidence” consists of the sworn statements of alleged former NPA or CPP members who are in the payroll and have become AFP assets. Their principal task is to assist in the counter-insurgency campaign of the GRP against the NPA and CPP. The case of the GRP against Prof. Sison rests solely on the perjured and hearsay statements of these military assets. (Sworn Statement of Ruben Guevarra dated December 19, 2002; Sworn Statement of Franklin Nillama Realiza dated October 24, 2002; Supplementary Sworn

Statement of Realiza dated December 19, 2002; Sworn Statement of Antonio Vitus dated July 18, 2001; Supplementary Sworn Statement of Vitus dated January 21, 2003; Sworn statement of Clyde Patingga Follante dated June 19, 2001; and sworn Statement of Lani Montanez dated December 6, 2002). The letter of Police Senior Inspector Wilfredo Calimlim dated 28 January 2003 to then DOJ Secretary Simeon Datumanong is the initiatory complaint of the GRP against Prof. Sison and seven other named respondents. In this letter, the PNPCIDG summarized the relevant portions of these statements on which the GRP relies to implicate Prof. Sison in the commission of the crime. Without admitting the truth of these implicatory albeit inadmissible and incredible statements, let us closely examine them.

Ruben Guevarra claimed that immediately after Prof. Sison was released from detention in 1986, Prof. Sison “re-assumed the chairmanship of the CPP/NPAlNDF Central Committee during a meeting of the Executive Committee of the CPP Central Committee in Las Pinas, which he presided. He also claimed that “Joma Sison used Armando Liwanag as his pseudonym or nom de guerre immediately after he re-assumed chairmanship of the CPP/NPAlNDF.” This alleged meeting was held in 1986 or 20 years ago. From this allegation, Guevarra concluded “that Joma Sison is the most influential leader of the CPP/NPAlNDF and has the capability to order the operations and programs of the said committee whether offensive or administrative in nature.”

Ruben Guevarra is a discredited former leader of the CPP who now earns his living as a military asset. In a prior criminal case initiated by the GRP against Prof. Sison in the City Prosecutors Office of Manila in 1991 (I.S. No. 41-24836) of which the DOJ may take judicial notice, Guevarra was the principal witness against Prof. Sison. In his sworn statement in that case, Guevarra made the same allegation that Prof. Sison was the chairman of the CPP and implied that he should be accountable for all its revolutionary activities both nationally and internationally and at all times. In rejecting his testimony, the City Prosecutors Office of Manila categorically stated that “the supposed participations of the respondents (Sison and others) as planners or masterminds are sheer speculation,” and added that “to indict the respondents, therefore, based solely on the submitted sworn statements is tantamount to a hasty, malicious and oppressive prosecution which is precisely what is being avoided through a preliminary investigation.” (March 2, 1993 Resolution of the City Prosecutors Office of Manila in I.S. No. 91-24836).

Indeed, the alleged election of Prof Sison as chairman of the CPP in 1986, assuming this to be true for the sake of argument, cannot make him liable for the crime of murder and frustrated murder attributed to the CPP or NPA members committed in 2001 or fifteen years later or to conclude that he conspired to commit such crimes. Article 8 of the Revised Penal Code explicitly states that “a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.” In the recent case of People of the Philippines vs. Huang Zhen Hua and Jogy Lee (GR. No. 139301, September 29, 2004 citing Magsuci v. Sandiganbayan, 240 SCRA 13 (1995); People v. Gomez, 275 SCRA 482 (1997); and People v. Woolcock, 244 SCRA 235 (1995), the Supreme Court held that “[c]onspiracy cannot be presumed. Conspiracy must be proved beyond reasonable doubt like the crime subject of the conspiracy. Conspiracy may be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design.”

The evidence adduced by the complainant, assuming again for the sake of argument that it is true, proves the existence of an on-going armed revolution by the CPP, NPA and NDF against the existing government. And in accordance with the time-honored universal doctrine of political offense enshrined in our law and jurisprudence as well as in the 1998 GRP-NDFP Comcrehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL), the killing of colonel Aguinaldo and Sgt. Garo and the wounding of Soriano was a political act in pursuit of that revolution which can only be the subject of a prosecution for a political offense and not of a common crime (People vs. Armando Hernandez Vol. 99, Phil. 515; Part III, Article 6, CARHRIHL).

In essence, Franklin Realiza merely repeated the patently perjured statement of Guevarra that Prof. Sison allegedly re-assumed the chairmanship of the CPP in a meeting in Las Pinas City in 1986, using the nom de guerre Armando Liwanag. Without stating any factual basis, he concluded that “Jose Maria Sison is the most powerful and highest leader of the CPP/NPAlNDF “who directs the party in its offensive operations and administrative works. Xxx.” Like Ruben Guevarra, Realiza is a “rebel-returnee” and a military operative going by the cover designation of consultant for local government units. Based on his own admission, the reason he was in Camp Crame on 24 October 2002 was because he wanted to render a statement about the “character” of Jose Maria Sison. The following question of PNP investigator P02 Arvin Garces and Realizas answer is decisive as to the nature and admissibility of his entire sworn statement:

Tanong OS: “Ano ang dahilan at narito ka sa aming tanggapan at nagbibigay ng isang malaya at kusang loob na salaysay?
Sagot: Upang magbigay ng salaysay hinggil sa pagkatao ni Jose Maria Sison ..xxx. (underscoring is ours)

Thus, the lengthy allegations of Realiza in his two sworn statements are not only immaterial and inadmissible, they are explicitly excluded by Section 57, Rule 130 paragraph (a) (1) of the Revised Rules on Evidence that “unless in rebuttal, the prosecution may not prove xxx bad moral character which is pertinent to the moral trait involved in the offense charged.”

Witnesses Antonio Vitus, Clyde Patingga Follante and Lani Montanez claimed that they were also former members of the CPP and the NPA. Despite evident coaching by the police investigator, the only reference to Prof. Sison which Vitus made in his sworn statement contradicted the statements of the better trained, more experienced and more “professional” witnesses Ruben Guevarra and Franklin Realiza. In question and answer No. 12, Realiza stated:

12    What do you know of the involvement of Jose Maria Sison with the operations of the New Peoples Army (NPA) in your area when you were (are) still a member”?
What I know is that he is the founder of the NPA and spokesman for the operations of the NPA nationwide .” (underscoring is ours)

Clyde Patingga Follante, on the other hand, was a nineteen-year old fourth grade school drop-out at the time of the incident who claimed he was a member of the NPA from November 1999 to February 2000 or for the period of three months. He said nothing about Prof. Sison in his two-page sworn statement.

Finally, witness Lani Montanez, whose sworn statement was taken in the headquarters of the 41st Battalion of the 51h Philippine Army Division claimed that she voluntarily rendered her sworn statement so that she could state what she knew about the revolutionary movement of the CPP and NPA. She also could not say anything about Jose Maria Sison and merely stated that Armando Liwanag is the head of the “kilusan” because she allegedly read orders coming from their superiors in Manila bearing the name of Armando Liwanag.

The Gonzalez Resolution has No Factual and Legal Bases

We respectfully submit that the DOJ Resolution of Secretary Raul Gonzalez dated 01 December 2005 has no factual and legal bases for the following reasons:

  1. the evidence against Prof. Sison failed to establish probable cause;
  2. Prof. Sison has been denied his right to due process;
  3. the aforesaid resolution is politically motivated and is intended to persecute Prof. Sison

We shall discuss the three grounds together.

Probable cause means “such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting et. al. vs. Maxicorp, Inc. G.R. No. 140946, September 13, 2004 citing the old case of U.S. vs. Addison, 28 Phil. 566)

As we have shown in our narration and analysis of the evidence of the GRP, the Resolution of Secretary Gonzalez cannot pass the above test requiring reason, caution, justice and propriety. In the case at bar these requirements are imperative. Reason is required because the law eschews any evaluation or conclusion that cannot pass the litmus test of rational thinking. Caution is required because the law abhors hasty, malicious and oppressive prosecution or persecution of an innocent person. Justice is required because this is the bedrock of all legal systems from the ancient time to this era of constitutional democracy. And, lastly, propriety or delicadeza is also required because the Secretary of Justice, even in our own legal history and tradition should be above partisanship and political vendetta in the exercise of his quasi-judicial power.

If we follow the logic of the Gonzalez resolution, what it seeks to prosecute and punish are not criminal acts per se but political activities and beliefs, particularly alleged links or association with the CPP, NPA or NDF. This line of reasoning contravenes the intent and purpose of repealing the anti- subversion law, R.A. 1700 by R.A. 7636. In the first place, and as we have shown earlier, there is no evidence that Prof. Sison is Armando Liwanag, the alleged chairman of the CPP. There is no evidence that he holds any position in the CPP, the NPA or the NDF other than Chief Political Consultant of the NDFP in the peace negotiations with the GRP, a fact expressly acknowledged by the latter since September 1992 when the current GRP-NDFP peace negotiations began. In the second place, if the GRP has evidence that Prof. Sison is engaged in any prohibited or illegal revolutionary activity that violates GRP laws, the GRP is mandated to prosecute him for the commission of a political offense and not for any common crime. Although there have been aberrational departures especially in practice from the doctrine, the well-settled rule in international law and in Philippine jurisprudence is the Amado Hernandez doctrine on political offense. Because of its relevance not only to this case but more importantly to the current political crisis, it is timely and imperative to quote the formulation of that fundamental doctrine in the elegant language of former Chief Justice Roberto Concepcion fifty years ago in 1956 in the aforestated landmark case of People vs. Amado Hernandez (Vol. 99 Phil. 515)

“National as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense, are divested of their character as “common” offenses and assumes the political complexion of the main crime of which they are mere ingredients, and, consequently, could not be punished, under Article 244 of the old Penal Code of the Philippines, separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.”
“According to Article 135 of the Revised Penal Code, one of the means by which rebellion may be committed is by engaging in war against the forces of the government and committing serious violence in the prosecution of said war. These expressions imply everything that war connotes, namely: resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damages to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. Being within the purview of “engaging in war” and “committing serious violence,” said act of resorting to arms, with the resulting impairment or destruction of life and property- “when, as alleged in the information, performed “as a necessary means to commit rebellion, in connection therewith, and in furtherance thereof” and “so as to facilitate the accomplishment of the * * * purpose of the rebellion” —constitutes neither two or more offenses, nor a complex crime, but one crime-that of rebellion plain and simply, punishable with one single penalty, namely, that prescribed in said Article 135.

Recognizing the wisdom of this doctrine and its relevance to the on-going armed conflict, the GRP and NDFP adopted and signed the CARHRIHL on March 16, 1998 which provides as follows:

“The GRP shall abide by its doctrine laid down in People vs Hernandez (99 Phil. 515, July 18, 1956), as further elaborated in People vs. Geronimo (100 Phil. 90, October 13, 1956), and shall forthwith review the cases of all prisoners or detainees who have been charged, detained, or convicted contrary to this doctrine, and shall immediately release them. (Article 6, Part III, CARHRIHL)”

CARHRIHL is binding upon both the GRP and the NDFP after it was subsequently approved and ratified by the respective principals of both parties.

On April 20, 1998 the DOJ issued a certification of which this department may also take judicial notice, the pertinent portion of which reads as follows:

“This is to certify that based on the records of the Department of Justice of the Republic of the Philippines there is no pending criminal charge against Prof. Jose Maria
Criminal Case No. 74896 which was filed against him on October 17, 1988 in the Regional Trial Court of Pasig, Metro Manila, for violation of the Anti-Subversion Law Republic Act No. 1700, was motu propio dismissed by the court due to the repeal of the Anti-Subversion Law, Republic Act No. 1700 by Republic Act No. 7636 on September 22, 1992.
The case filed in the City Prosecutors Office of Manila, I.S. No. 91-24834, entitled Philippine National Police-Criminal Investigation Service Command (PNP-CISC) vs Jose Maria Sison, et. ai, was dismissed on March 2, 1994, “for lack of sufficient evidence.”

This Certification, aside from conclusively proving that there was no criminal charge against Prof. Sison as of April 20, 1998, also proves that until this date the GRP either did not have any evidence that Prof. Sison committed any criminal or illegal act whether political or common crime, or that the GRP did not have the policy of implicating and charging Prof. Sison for alleged criminal or illegal acts attributed to the CPP, NPA or NDF, or both.

The truth is that the inclusion of Prof. Sison in this case is a belated decision of the GRP. Prof Sison is now being subjected to indiscriminate filing of criminal charges nationwide for alleged illegal and criminal acts attributed to and involving the revolutionary activities of the CPP and the NPA. This current GRP policy specifically targeting Prof. Sison is politically motivated. It is part of the grand scheme of the GRP to defeat the national democratic revolution in the Philippines being waged by the CPP, NPA and NDFP and in support of the bogus US global war on terror.

The DOJ (Gonzalez) resolution to include Prof. Sison in the informations violates his fundamental rights under the GRP Constitution and under international law, more specifically his right to due process, his right to free speech and expression, freedom of thought, political belief and assembly which are guaranteed by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and its Five Protocols and the 195 Convention Relating to the Status of Refugees.

As we have already pointed out, even the first DOJ Resolution explicitly which renders him legally incapacitated or unable to avail himself of his due process rights and similarly disables and legally incapacitates the GRP from acquiring jurisdiction over his person. This essential requirement of due process is aptly stated in Article 2 Section three of the European Convention of Human Rights:

“Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

xxx

(b) to have adequate time and the facilities for the preparation of his defence:
(c) to defend himself in person or through legal assistance of his own choosing or,

xxx

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

xxx

On the basis of the foregoing submission, we respectfully pray for the outright dismissal of this case.

RESPECTFULLY SUBMITTED.

City of Makati for City of Manila. January 27, 2006.

PUBLIC INTEREST LAW CENTER Counsel for Prof. Jose Maria Sison 4/F KAIJA Bldg. 7836 Makati Ave. cor. Valdez St., Makati City

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