2 prosecutors face probe over Kerwin Espinosa

MANILA, Philippines — Justice Secretary Vitaliano Aguirre II directed yesterday the National Bureau of Investigation (NBI) to conduct a probe of members of the panel that dismissed the complaints against self-confessed drug trader Kerwin Espinosa, suspected drug lord Peter Lim and several others.

Assistant State Prosecutor Michael John Humarang and Aristotle Reyes, a prosecutor at the time and now a judge, dismissed the charges of sale, administration, dispensation, trading, delivery and transportation of illegal drugs under Republic Act 9165 (Comprehensive Dangerous Drugs Act) filed by the police Criminal Investigation and Detection Group (CIDG).

Reyes was also part of the panel of prosecutors that cleared former Bureau of Customs commissioner Nicanor Faeldon and other BOC officials of drug charges stemming from the P6.4-billion shabu shipment seized last year. He was appointed judge in Lucena City last January.

The directive did not say whether Senior Assistant State Prosecutor Rassendell Rex Gingoyon, approving chairman of the Department of Justice (DOJ) anti-organized crimes division, would also be covered by the probe.

President Duterte has ordered a review of the decision by state prosecutors to dismiss complaints against Lim, Espinosa and the other accused amid outrage among the public and some of his allies about the accused walking free.

The DOJ panel, citing weak evidence, cleared 22 suspects in a decision they made in December but became known to the public only on Monday when journalists obtained a copy of the resolution.

Espinosa, a self-confessed drug dealer, was among those cleared.

Aguirre issued Department Order No. 152 that directed the NBI to determine if the two prosecutors in the investigating panel “committed possible misfeasance, malfeasance or non-feasance or other violations of law in the dismissal of complaint.”

NBI spokesman Ferdinand Lavin said this is not the first time that the bureau is investigating state prosecutors.

Asked if this would set a bad precedent, with the NBI investigating state prosecutors for resolutions that do not please higher-ups, Lavin said the bureau was duty-bound to follow the DOJ.

Lavin said NBI Director Dante Gierran may also form a panel out of different investigating units to look into possible malfeasance, misfeasance or nonfeasance of the DOJ prosecutors.

The Revised Penal Code defines malfeasance as “an act prohibited by law or an act ought not to be done,” while misfeasance is “the improper or irregular performance of an act” and nonfeasance is “the non performance, failure or refusal to do an act which one is required to do.”

In its resolution dated Dec. 20, 2017, the DOJ faulted the police CIDG for presenting weak evidence and “inconsistencies” in the testimony of lone witness Marcelo Adorco as reasons for dismissal of the charges.

Adorco claimed in his affidavit that Lim had supplied narcotics in “staggering amounts” to Espinosa for more than two years.

But the investigating panel held that Adorco’s claims were contrary to the “standards of human experience and the logical course of reality.” 

The prosecutors also cited as basis the complainant’s “failure to present any circumstantial evidence to prove respondents’ illegal drug transactions.”

Also cleared by the DOJ apart from Lim and Espinosa were Bilibid inmate Peter Co, Max Miro, Ruel Malindangan, Jun Pepito and Lovely Adam Impal as well as several other unidentified persons.   

Duterte has publicly named and shamed several provincial politicians and businessmen as “drug lords.” Some have been killed in what police said were shootouts.

“I will invoke my power of supervision and control and will review (the) dismissal,” presidential spokesman Harry Roque quoted the President as saying during a joint command conference with police and military officials on Tuesday evening.

Police insisted on Wednesday they had strong cases against the suspects led by Lim and Espinosa, who was arrested by Abu Dhabi police in October 2016.

Espinosa’s father Rolando, a mayor of Albuera, Leyte, was killed in what police said was a gunfight in his prison cell three months after he surrendered in August 2016 to answer drug charges.

Duterte has warned Aguirre that he would put the DOJ chief in jail if both Lim and Espinosa go free, Roque said.

Aguirre said in a radio interview that the panel’s decision was not final and still subject to an appeal and automatic review by his office.

However, he said a new panel of prosecutors would be created to review and strengthen the case against the suspects.

More than 4,000 people have been killed under Duterte’s 19-month anti-narcotics campaign in what police call legitimate operations against “drug personalities” they say violently resisted arrest.

Police have blamed mysterious vigilantes for about 2,300 drug-related homicides.

Duterte’s critics have said many of those killed were small-time drug dealers and users from poor communities, while the so-called big fish, or main suppliers, remain at large.

Aguirre said that despite the controversy, the trust and confidence in President Duterte’s leadership is still there.

He hoped that police investigators take the opportunity to submit all necessary evidence needed to prosecute Espinosa, Lim and the other accused.

In separate orders released yesterday, Aguirre created a new panel of prosecutors to resolve the appeal filed by the Philippine National Police (PNP) last month and also ordered an investigation into possible liabilities of the two state prosecutors who junked drug trafficking charges against Lim, Espinosa and several others.

In Department Order 151, Aguirre designated Senior Assistant State Prosecutor Juan Pedro Navera, Assistant State Prosecutor Ana Noreen Devanadera and Prosecution Attorney Herbert Calvin Abugan as members of the panel to review the dismissal of the case.

He also tapped Senior Deputy State Prosecutor Richard Anthony Fadullon as “acting prosecutor general” tasked to approve the panel’s findings.

“The panel of prosecutors and the acting prosecutor general shall resolve the motion for reconsideration under existing laws, rules and regulations,” read the directive.

DOJ rules provide for automatic review of dismissed drug charges by the office of the justice secretary. But since the PNP filed a motion for reconsideration last month, Aguirre opted to create a new panel to resolve the appeal.

Aguirre earlier distanced himself from the dismissal of charges against Lim and Espinosa, saying he had no hand in the conduct of preliminary investigation.  – Delon Porcalla, Marc Jason Cayabyab, Miriam Desacada, Reuters

Related video: