IT IS doubtful if the Visayas ombudsman will find probable cause to indict Cebu City Mayor Tomas Osmeña with obstruction of justice for the release of three butane canister vendors from police custody. Maybe on the other charges: namely, grave abuse of authority and misconduct or violation of code of conduct for government personnel. But the charge of obstruction of justice might not stand.
The city police, through chief Royina Garma last Aug. 30, filed a clutch of charges against Tomas over the Aug. 24 incident in which Tomas past 10 p,m. “barged” into the Parian police station and ordered the cops on duty to free the three vendors who were arrested earlier that day.
Police saw it as meddling into purely police functions by a public official who had no power to do so.
Yes, he released them
Tomas’s defense, as spelled out in his Nov. 1 answer to the charges, does not deny that he released the three detainees. He said it was within his authority. As “a representative of Napolcom,” the mayor said, he can “order the arrest of any person if justified or order his release if not justified.”
The question of authority is crucial. Tomas alleges he has authority to order the police to release “illegally detained” persons. He says police are “mere agents of persons in authority” and are “under his operational control and supervision.”
The primary legal issue to settle: Does the mayor have the authority over the police, specifically the power to free illegally detained persons? If he has, it must mean Tomas can also decide, as mayor, whether an arrest is unlawful. And the vital factual issue: Were the vendors illegally arrested and detained?
U.P. officials’ dissent
A number of University of the Philippines officials were charged with obstruction of justice when they opposed the arrest without warrant of some students by the NBI. The Supreme Court threw out the charges against the school officials, saying in Posadas vs. Ombudsman (GR #131492 of 2000) that it was not obstruction of justice because the arrest was illegal.
Tomas is using a similar defense but it rests on a fact the mayor has to prove, and the police to defend against: namely, that the arrest was illegal.
Not in the law?
In arguing there was no obstruction of justice, the mayor checked the police allegations against the list of acts the law deems offensive in Presidential Decree #1829 of 1981. Tomas said the police pleadings did not allege or show that he committed any of the acts enumerated by the law. He did not, he said:
Prevent a witness from testifying;
alter evidence;
harbor a suspect or suspects;
use an alias to evade arrest and prosecution,
delay criminal proceedings;
solicit benefits or use threats to keep a witness from testifying; or
give false information to mislead a criminal proceeding.
What Tomas did, his answer to the ombudsman argues, is not in the law that is supposed to support the principal charge of the police.
Another basis or ground
Crucial to the case for the police is evidence of its suspicion that the mayor intervened for personal interest. A member of his family allegedly had business ties with the butane supplier. But so far that has not been confirmed, perhaps not even alleged in the complaint.
If police can prove that connection, it would show that Tomas’s “meddling” was not motivated by the desire to serve his constituents. That might establish that he violated the code of behavior for government personnel, which may amount to gross misconduct and abuse by a public official.
But obstruction of justice might not be the charge to take the mayor down.