Friday, February 09, 2007
2 probe bureau agents in van attack stay
By Karlon N. Rama
CEBU CITY -- After ruling last year to boot out everyone involved in the 2002 anti-drug operation that ended in the strafing of a private van ferrying off-duty resort employees home, the appellate court change its decision.
In a ruling promulgated Wednesday last week, the Court of Appeals (CA) no longer wants Angelito Magno dismissed from service. It resolved that Magno's partner, Special Investigator Arnel Pura, is to be merely placed under six-month suspension.
However, the original penalties against Teodoro Saavedra and Danilo Garay--the two lower-ranking agents who took part in the December 13, 2002 operation--still stand.
They are to be sacked from their present post and banned from working for the government again.
A fifth agent, Rey Tumalon, is deemed excluded. He died in 2005.
The new decision was penned by CA Associate Justice Agustin Dizon for the 19th Division and amended the one penned by Associate Justice Apolinario Bruselas Jr.
It stemmed from the motions for reconsideration that the parties separately submitted following the promulgation of the Bruselas ruling on the administrative aspect of the case.
The NBI agents still face criminal charges for the strafing of a Plantation Bay resort van, which they chased from Mandaue City all the way to Cebu City.
Five resort employees were injured.
Pura, who is now in the United States, was originally dismissed together with Magno in the August 8, 2006 decision.
He was also perpetually disqualified from holding government office.
The salient point of the new 10-page ruling is that the CA no longer believes conspiracy existed among the players in the NBI operation.
"A reassessment of the facts tends to show that the evidence to support it (existence of conspiracy) is not convincingly strong enough to show community of criminal design, notwithstanding the fact that the vehicle was peppered with 72 bullet holes," the ruling read.
"At most, the grossly impulsive and hasty judgment of the operatives, occasioned by their eagerness to arrest (drug suspect) Obet Hegremosa, purely constitute gross negligence in the performance of duty," it added.
According to the ruling, the mere presence of the agents at the scene of the crime, or even the knowledge of a planned crime, is not enough grounds to hold all those involved as conspirators.
"There being no conspiracy, petitioners are liable only for their own separate and individual acts," it said.
The appellate court said Magno cannot be held liable for any negligence because, as stated in the Bruselas ruling, Magno did not even fire a gun or acted as team leader during the incident.
The new Dizon ruling said "an oversight" was made when Magno was ordered dismissed "solely because petitioner was part of the bungled operation."
Pura was the team leader but, according to the Dizon ruling, the records show how he, "from the briefing to the active phase of the fateful incident," instructed the NBI operatives "to act with caution."
The ruling drew swift reactions from the agency that, immediately after the botched operation, swiftly changed leadership.
NBI 7 Director Medardo de Lemos said he is "saddened by the ruling" and felt that the appellate court was too exacting in its expectations of agents on the field.
Other agents felt let down that the more senior agents-the one who had control over the operation--were acquitted while the low-ranking ones were dismissed.
However, Stephen Ygnacio, CA information officer, said the ruling was made after judicious consideration.
Moreover, court procedures still offer the parties remedies that include filing a petition for certiorari before the Supreme Court.
The implementation of the ruling, he said, will be left to the Office of the Ombudsman-Visayas, which conducted the original investigation.
An injunction order from the Supreme Court can stop its implementation.
Five Plantation Bay Resort employees were injured during that botched December 13, 2002 operation. The employees were being ferried home when the agents opened fire on their van along H. Cortes St. in Mandaue City.
The van failed to stop and the agents, together with a squad of "civilian assets," gave chase and continued firing until the vehicle reached Banilad Road in Cebu City.
The operation began with the arrest of Eli Nuñez and Emmylou Gimeno for peddling over a hundred grams of shabu to an undercover agent.
Upon interrogation, Gimeno gave up her ex-boyfriend, Hegremosa, as the supplier. She then agreed to cut a deal by setting up Hegremosa, who was based in Mandaue and traveled in a van flanked by armed bodyguards, for a buy-bust.
The team of agents aboard three vehicles proceeded to Mandaue, with Gimeno in a taxicab being driven by another agent.
Gimeno, according to Pura's counter-affidavit, called him up on his mobile phone and asked him to check a dark van that almost collided with the taxicab. She said the van looked like the one Hegremosa often uses.
Pura, who was in the same car as Magno, broke off from the convoy and gave chase but, after reaching the Mandaue Reclamation Area, they heard on their radio that Hegremosa's vehicle had been spotted along H. Cortes St., forcing them turn back.
They said they heard gunshots in the background as they tried to reach their fellow agents over the radio and gave the order for everyone to hold their fire.
When they finally reached the convoy, he said, the van was already riddled with bullets. Only when the van stopped in Banilad did the agents realized that they got the wrong vehicle. (Sun.Star Cebu)
For more Philippine news, visit Sun.Star Davao. (February 9, 2007 issue)
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