MEMORANDUM FOR THE PRESIDENT
PAQUITO N. OCHOA, JR.
EDUARDO V. DE MESA
Chief Presidential Legal Counsel
Review of the 1st Report of the IIRC dated 23 August 2010
Date: 8 October 2010
I. preliminary statement
The facts are those contained in the First Report of the IIRC on the August 23, 2010 Rizal Park Hostage-taking Incident: Sequence of Events, Evaluation and Recommendations dated September 17, 2010. Most important of these findings of fact is that all of the hostages who died were killed by P/S Insp. Rolando Mendoza. The Review fully accepts all the findings of facts contained in the First Report of the IIRC.
II. Summary of facts
1. In the morning of August 23, 2010, a bus with 21 Hong Kong tourists and 4 Filipino travel agency staff on board arrived at Fort Santiago in Intramuros, Manila.
2. After the tourists completed a sight-seeing tour of the park, the bus was on its way to leave the area at around 9:30 a.m., when a dismissed policeman (Police Sr. Insp. Rolando Mendoza), in uniform and armed, asked the driver (Alberto Lubang) that he be allowed to board.
3. Police Sr. Insp. Rolando Mendoza (hereinafter referred to only as Mendoza) later announced that he was taking the passengers hostage and ordered the driver to take the bus to the Quirino Grandstand area in Luneta Park. They arrived in the area around 20 minutes later and Mendoza ordered the travel agency staff to call their office to inform it of the situation.
4. Police and city officials were alerted of the hostage-taking around 10 a.m.
5. Police Chief Supt. Rodolfo Magtibay, then Manila Police District (MPD) Director, was at the MPD headquarters along U.N. Avenue when he received the report of the hostage-taking.
6. Manila Mayor Alfredo Lim and Vice Mayor Francisco “Isko” Moreno Domagoso, on the other hand, learned about the incident through Police Senior Supt. Alex Gutierrez while they were having the regular department heads meeting at the Manila City Hall. Lim immediately gave instructions to Gutierrez to cordon the area and isolate the bus. He also instructed Vice Mayor Isko Moreno to proceed to the scene and assess the situation in order to determine the assistance the city government may provide.
7. Meanwhile, DILG Undersecretary Rico Puno was in his office when told of the incident by the Office of the Executive Secretary (OES). The OES likewise told Puno to monitor the hostage situation closely. An hour later, Puno was told by the Office of the President to proceed to Malacañan Palace and bring along a police officer knowledgeable on the incident.
8. At 10:10 a.m., Magtibay was already at the scene of the incident where he set up an Advanced Command Post (ACP) at the Luneta Police Community Precinct (PCP).
9. Around the same time, Magtibay told Police Chief Insp. Romeo Salvador about the situation at the Quirino Grandstand and instructed him to inform Police Supt. Orlando Yebra to act as negotiator in the incident.
10. Also around the same time, then Philippine National Police (PNP) Chief Director General Jesus Versoza ordered (via phone) National Capital Region Police Office (NCRPO) Chief Director Leocadio Santiago Jr., who was at the Camp Bagong Diwa then, as well as Magtibay, to create the Crisis Management Committee (CMC).
11. By 10:30 a.m., police have taken positions around the area.
12. Negotiations with Mendoza began almost at the same time, initially by Salvador who was later joined by Yebra. Concurrently, 2 hostages were released by Mendoza.
13. Yebra made his first call to Mendoza at 10:50 a.m. Ten (10) minutes later, Yebra relayed the demands of Mendoza to the Crisis Management Task Force (CMTF), which was composed ofMagtibay and other police officials, namely, Police Senior Superintendents Robert Po, Fidel Posadas and Gutierrez. At around 11:00 a.m., 4 hostages were released.
14. Around 11:30 a.m., Vice Mayor Isko Moreno arrived at the Luneta PCP and talked to Magtibay. Magtibay told Vice Mayor Isko Moreno that he intended to talk to Deputy Ombudsman Orlando Casimiro.
15. At 12:00 p.m., Lim called Magtibay. Santiago instructed Supt. Remus Medina, chief of the NCRPO’s Police Intelligence and Operations Unit, to proceed to Malacañan and report to Punoand brief the President.
16. At 12:30 p.m., Mendoza gave some documents to Yebra and Salvador. The documents were then immediately given to a certain PO2 Rivera at the Luneta PCP for photocopying and delivery to Department of Justice Secretary Leila De Lima.
17. The photocopied papers were subsequently turned over to Magtibay and Vice Mayor Moreno, who instead suggested that it would be better to bring the documents to the Office of the Ombudsman than to the DOJ since Mendoza’s case was an Ombudsman case. Vice Mayor Moreno even volunteered to take the documents to the Office of the Ombudsman.
18. In Malacañan Palace, Puno was with Medina, who was briefing the President on the situation on the ground. Medina told the President that negotiations were going well, so far, and that more hostages were being released by Mendoza. Puno also told the President that the CMC was in place and that Magtibay, the ground commander, as well as Lim, were helping him supervise.
19. At this point, the President instructed Medina to tap the PNP Special Action Force Crisis Response Group (SAF-CRG) in case there would be an assault on the bus and to put on standby one ambulance per hostage.
20. Almost immediately, Medina relayed this instruction of the President to Magtibay by phone. At around 2:00 p.m., Mendoza released another hostage. After several minutes, Yebra negotiated the release of yet another hostage in exchange for gas for the bus.
21. At 2:30 p.m., Versoza left for Cagayan De Oro to attend a multi-sectoral forum and left Police Deputy General Belarmino as the highest-ranking police officer in command. He claimed to have been in constant contact with Magtibay and other officials monitoring the incident.
22. About the same time, Gregorio Mendoza who was in uniform approached the bus. He was escorted by Salvador who disarmed him when he found that he was carrying a gun. Mendoza noticed this and shouted from the bus that they should return his gun because he is a policeman.
23. Meanwhile, Vice Mayor Moreno met Ombudsman Merceditas Gutierrez, Overall Deputy Ombudsman Orlando Casimiro, Deputy Ombudsman for Luzon Mark Jalandoni, Deputy Ombudsman for the Military and Other Law Enforcement Agencies Emilio Gonzales III, and Special Prosecutor Wendell Sulit at the Office of the Ombudsman in Quezon City. Vice Mayor Moreno explained Mendoza’s demands to them.
24. Around 3:00 p.m., Yebra received a call from Vice Mayor Moreno, who was at the Office of the Ombudsman. Yebra said Vice Mayor Moreno requested to talk to Mendoza, which the negotiator allowed. When Vice Mayor Moreno asked Mendoza if he wanted to talk to anybody at the Ombudsman, the hostage-taker asked for a certain Director Gonzales from the Office of the Ombudsman.
25. Vice Mayor Moreno claimed he heard Mendoza berate Gonzales for allegedly asking P150,000.00 from him to supposedly “fix” his case. Mendoza then talked to Ombudsman Merceditas Gutierrez, who assured him that they would review his case.
26. At 5:00 p.m., Santiago arrived at the MPD Headquarters where he met Medina. Santiagoordered Medina to proceed to the Quirino Grandstand and link up with the SAF Team, who were deployed earlier in the area.
27. At 5:10 p.m., Lim arrived at the Luneta PCP. There, he found SPO2 Gregorio Mendoza, brother of the hostage-taker, seated on a sofa. Lim then questioned Gregorio Mendoza on why his brother was holding the tourists hostage.
28. Around 6:00 p.m., Vice Mayor Moreno arrived at the Luneta PCP from the Office of the Ombudsman and handed the Ombudsman’s letter to Lim. The letter was then read in the presence of Gregorio Mendoza, who was subsequently allowed to get near the bus with Yebraand Salvador in the hope that he could help pacify his brother and persuade him to peacefully surrender and end the hostage-taking.
29. Yebra, Salvador and Gregorio Mendoza proceeded to the bus and handed over the Ombudsman’s letter to the hostage-taker. However, after Rolando Mendoza read the letter, he rejected it and became agitated.
30. Rolando Mendoza branded as “garbage” the Ombudsman’s letter, which merely promised a review of his case, and not his reinstatement.
31. Yebra attempted to pacify Rolando Mendoza by asking if he would be satisfied if he were provisionally reinstated. Mendoza answered ‘Alright. Alright.’
32. Mendoza’s brother, Gregorio, butted in and complained that his service firearm had been confiscated by the police and urged him not to cut a deal with negotiators until his gun was returned.
33. This prompted the police negotiator to pull back Gregorio Mendoza and consequently berate him for his actions.
34. As Yebra, Salvador and Gregorio Mendoza were walking back to the command post, Mendozafired a warning shot. At the command post, Yebra reported to Lim and Magtibay what Gregorio Mendoza did and said that Gregorio Mendoza should be charged as accessory for the hostage-taking.
35. Lim ordered that Gregorio Mendoza be handcuffed and taken to the MPD Headquarters purportedly for investigation.
36. Lim later said he would go to Emerald Restaurant and instructed Magtibay to follow him, who did so a little later. Lim also gave instructions not to handcuff Gregorio Mendoza anymore.
37. While Gregorio Mendoza was being escorted out of the Luneta PCP, he managed to elude his escorts and dashed toward a pack of media men. He was joined by his family who locked arms with him and cried that they would not allow the police to remove him from the area. As the police tried to forcibly put him inside a police car, footage of the scene were beamed live on television and witnessed by Mendoza from the television inside the bus.
38. Meanwhile, Michael Rogas, news anchor of radio station DZXL, interviewed Rolando Mendoza. He informed the latter that the police could hear his statements. Rogas also kept asking Mendoza regarding his next course of action. It was at this point that he threatened to shoot the hostages if the police did not release his brother.
39. Despite being disallowed by the police from talking to the hostage-taker, DZXL reporter Erwin Tulfo nonetheless managed to do so by phone and even complained to Mendoza that the police ordered him not to talk to Mendoza.
40. Vice Mayor Moreno, meanwhile, left the Luneta PCP as he saw members of the Special Forces with sniper rifles emerge from the back of Manila Hotel. Thinking that the situation had already become a police matter Vice Mayor Moreno proceeded to the Manila Pavilion Hotel and had coffee while watching ANC Channel’s coverage of the incident.
41. Shortly before 7:00 p.m., shots rang out from inside the bus.
42. Yebra then tried to contact Mendoza via phone, but failed because Rogas was still talking toMendoza on the phone.
43. Shortly thereafter shots were heard again from inside the bus. Soon thereafter the driver was seen running away from the bus, shouting that all the hostages had been killed.
44. At 7:35 p.m., upon orders of Magtibay, the SWAT headed by Police Chief Inspector Santiago Pascual III assaulted the bus. They tried to breach the bus by using sledgehammers. At this point,Mendoza fired at the assault team, forcing them to withdraw.
45. At the same time, the NCRPO Chief Santiago ordered that Medina take over the operations. Medina then ordered the SWAT to assault the bus from the front, while the SAF-CRG would assault the bus from the back.
46. Tear gas cannisters were thrown into the bus. Consequently, Mendoza was forced to move to the front of the bus, where he was killed by sniper fire. After this, the 8 survivors were led out of and the bodies of the 7 dead hostages were taken from the tourist bus. One of the survivors would later succumb to his injuries and pass away.
47. Out of the 21 foreign nationals held hostage, 6 were released. Of the 15 remaining in the bus, 8 lost their lives. The 4 Filipinos taken hostage were released.
III. Applicable laws, rules and regulations, and jurisprudence
1. An act or omission may not be deemed a crime unless a law defines it as such and provides a penalty.
2. A person may be held criminally liable only for his own actions or omissions. However, he may be held administratively or civilly liable for the consequences of the actions or omission of his subordinates or wards when the principle of command responsibility and the rules/laws on subsidiary, solidary and vicarious liability under the Revised Penal Code and the Civil Code are applicable.
3. In Rubrico v. Arroyo (G.R. No. 183871, February 18, 2010), the Supreme Court defines Command Responsibility as “the responsibility of commanders for crimes committed by subordinate members of the armed forces or other person subject to their control in international wars or domestic conflict.” While there are several bills on command responsibility, there is still no law that provides for criminal liability under that doctrine.
4. Reckless Imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform an act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons time and place (Article 365, Revised Penal Code).
5. Simple Imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest (Article 365, Revised Penal Code).
6. Criminal Negligence is defined as gross deviation from the standard of care expected of a reasonable person that is manifest in a failure to protect others from a risk deriving from one’s conduct and that renders one criminally liable. It is a malfeasance (as distinguished from misfeasance) where the defendant’s fault lies in his utter failure to foresee which allows otherwise avoidable dangers/adverse consequences to take effect. A successful indictment for criminal negligence is contingent on the existence of a positive legal duty on the part of the defendant. In the absence of any statute that mandates the performance of such legal duty, the defendant cannot be considered criminally negligent and thus incurs no liability (People v. Susan Valerie Heitzman, 9 Cal. 4th 18, Dec. 30, 1994).
7. Neglect of Duty is the failure of an employee to give his attention to a task expected of him and is censurable under the Civil Service Rules. Gross neglect of duty denotes a flagrant and culpable refusal or unwillingness of a person to perform a duty. (PRA v. Rupa, G.R. No. 140519, August 21, 2001). Gross neglect of duty or gross negligence refers to negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences, insofar as other persons may be affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant and palpable. (CSC v. Rabang, G.R. No. 167763, March 14, 2008). It is listed as an offense under the Omnibus Rules Implementing E.O. 292 (Administrative Code of 1987).
8. Simple Neglect of Duty, on the other hand, signifies a disregard of a duty resulting from carelessness or indifference. It is also an offense under the Omnibus Rules Implementing E.O. 2.
9. Gross Incompetence is listed as a grave offense under Memorandum Circular No. 20087-003 of the National Police Commission denominated as THE UNIFORM RULES OF PROCEDURE BEFORE THE ADMINISTRATIVE DISCIPLINARY AUTHORITIES AND THE INTERNAL AFFAIRS SERVICE OF THE PHILIPPINE NATIONAL POLICE (PNP Uniform Rules) which states: “When the offense or negligence is committed by reason of manifest lack of adequate ability and fitness on the part of the respondent member for the satisfactory performance of police duties, the erring member shall be guilty of gross negligence.”
10. A mistake in judgment committed by a public officer, absent any criminal or ill-intent does not make a public officer criminally liable (The United States v. Elias Cueto, G.R. No. L-13626, October 29, 1918).
11. The PNP Uniform Rules shall apply to all administrative cases filed against uniformed members of the PNP before the administrative disciplinary authorities and the Internal Affairs Service (IAS). Members of the Philippine National Police are disciplined based on the “PNP Uniform Rules”.
12. Pertinent provisions of the Crisis Management Manual issued in November 2000 provide:
a. Peaceful Means and other Option in the Resolution of a Crisis – The government shall exhaust all peaceful means in seeking solution to a crisis to minimize, if not prevent, the loss of life and destruction of property…. Armed action shall, however, be calibrated as required by the situation, to ensure safety of victims and innocent civilians.
b. No-Compromise with Terrorists – The government shall not accede to blackmail or terrorist demands. Nor shall it grant ransom or concessions that will benefit the perpetrators and give terrorist an operational advantage over the government. Terrorist shall be prevented or denied from benefiting from the fruits of their crime.
c. Safety of Victims and Civilians – The safety of victims and civilians shall be the government’s primordial concern in the resolution of a crisis. In situations involving foreign nationals, the government shall act in accordance with its policies, and maintain close contact and coordination with the foreign government concerned.
d. Prompt Handling of a Crisis at the Lowest Level Possible – All terrorist-based crisis are generally police matters and shall be handled as such unless the situation escalates into that which requires a higher unit of authority to carry out the government Anti-Terrorism Policy.
e. Handling Hostage Situations
i. The AFP/PNP shall ensure the safety of civilian hostages as a paramount consideration that shall take precedence over all others, and;
ii. Achieve the early liberation of the hostages or victims.
f. As a matter of policy, natural calamities and disasters will be the responsibility of the National Disaster Coordinating Council (NDCC). Terrorist-based crises/emergencies, on the other hand, shall be the responsibility of the National Peace and Order Council (NPOC).
g. The NPOC has constituted Crisis Management Committees (CMCs) at all levels to take decisive action in emergency situation. At the national level, the CMC is composed of the Secretary of the DILG as Chairman, DILG, DSWD, DOJ, PNP Chief, AFP Chief of Staff and other concerned cabinet members.
h. The lower level CMCs are composed of the political leadership, military and police organizations, and the non-government organizations in the locality. Each CMC shall have four action groups which shall be placed under the operational control of the On-Scene Commander. These groups are the: a) Negotiation Group; b) Operational Group; c) Service Support Group, and; d) Public Affairs Group.
i. The CMCs shall exercise prior planning, decision-making, and coordination at their respective levels in accordance with the guidelines of the higher level POCs and CMCs.
j. A Crisis Management Operations Center (CMOC) shall be established at the appropriate PNP Headquarters Operation Center where a crisis incident occurs. The CMOC shall be the focal point of all communications coming from the On-Scene Command Post (OSCP) and all instructions from the CMC. The CMC members shall be at the CMOC while the crisis incident is in progress.
k. The OSCP shall be established at the vicinity of the crisis incident site where it can best monitor and control the crisis management operations. All instructions from the CMC shall be relayed to the OSCP through the CMOC.
l. An On-Scene Commander shall be designated by the Chairman, CMC from among the senior officers of the PNP Headquarters. He shall be responsible for everything that is happening at the crisis incident scene. He shall exercise direct command and control over all negotiation, operation, support and public affairs groups assigned to him by the CMC, regardless of the presence of any officer more senior than him, unless relieved by higher competent authority. All orders at the scene of the crisis incident shall emanate from the On-Scene Commander only. He shall communicate and clear all his actions, if necessary, with the CMC.
1. P/Supt. Rodolfo Y. Magtibay there is no dispute that Magtibay was the On Scene Commander being referred to in the Crisis Management Manual, therefore it was his obligation to take full charge of the situation and make all necessary decisions.
a. Magtibay may be found liable for Gross Incompetence, which is imposed to those whose offense or negligence is “committed by reason of manifest lack of adequate ability and fitness” per Sec. 2, Rule 21 of the PNP Uniform Rules (PUR).
i) He failed to take direct and full control of the situation, and he violated protocol per the Crisis Management Manual.
ii) He personally talked and negotiated with the hostage taker by phone; allowed Gregorio to approach the bus and talk to his brother hostage taker without first evaluating him and his intention; allowed Susan Enriquez to talk to the hostage taker but did not bother to find out what they talked about afterwards; did not pose any objection when Mayor Lim gave the order to take Gregorio to Tondo, which he claims is euphemism to kill him; it does not appear that he gave specific orders to control the coverage of the incident by the media; he did not apprise himself and evaluate how the SWAT team was to conduct the assault of the bus; and he left the Luneta PCP to go to Emerald Restaurant without leaving instructions as to who is in charge or what is to be done in his absence.
iii) He did not take personal and direct control of the situation on August 23, 2010 at the Rizal Park. There is no showing that he organized the 4 sub-task groups required to be organized under the Crisis Management Manual. There is no showing that he met the negotiators or the other officers to plan how to handle the situation. There is no mention of anybody being put in charge of debriefing the released hostages. It does not appear that there was a clear plan drawn on how to handle the hostage taking situation.
b. Magtibay may be also found liable for Serious Neglect of Duty under Sec. 2, Rule 21 of the PUR for his refusal to comply with the President’s order to mobilize PNP SAF-CRG.
i) Magtibay knowingly failed or refused to follow direct instructions for him to use the SAF in assaulting the bus if assault becomes necessary. Medina informed him of the instructions of the President to use the SAF should the bus be assaulted, and he said yes. He was also given the same order by NCRPO Chief Santiago; instead, he instructed the SWAT to assault the bus.
2. Police Director Leocadio Santiago, Jr.
a. There is basis to hold Santiago liable for Less Grave Neglect of Duty under Sec. 2, Rule 21 of the PUR for his failure to actively monitor the hostage situation and to determine the readiness of his subordinates.
i) The Crisis Management Manual does not mention any responsibility of the NCRPO Chief vis-à-vis the Crisis Management Committee or Task Force. However, he was the immediate superior of Magtibay but it appears that he did not closely and actively monitor how Magtibay was handling the hostage situation.
ii) He did not make certain that Magtibay had a plan on how to resolve the situation or that the necessary personnel and logistics were present in case the situation is not resolved peacefully. When he learned that the assault was stalled and the SAF was not used, he ordered Supt. Medina to take charge and use the SAF.
3. PNP Director General Jesus A. Versoza
a. There is no finding of fact that justifies holding Chief PNP Versoza accountable for any administrative or criminal offense in the conduct of PNP operations during the hostage-taking incident.
b. Chief PNP Versoza’s decision to leave management of the incident to Magtibay is consistent with the provision of the Crisis Management Manual that says a crisis should be handled at the lowest level. Furthermore, the hostage-taking was determined as a local incident. The order to use the SAF instead of the SWAT was given to Magtibay and not Versoza.
4. Usec. Rico E. Puno
a. Given the facts as established in the IIRC Report, there is no basis to file any administrative or criminal complaints against Usec. Puno.
i) Usec. Puno was only mentioned in the statement of facts as having been briefed by Col. Medina when General Santiago ordered Col. Medina to proceed to Malacañan Palace and report to Usec. Puno so the President may be updated on the hostage incident.
ii) It was shown that there was no participation of Usec. Puno in any of the 8 critical incidents identified by the IIRC that affected the final outcome of the hostage crisis. There is no impropriety on the part of Usec. Puno when he assumed the functions of DILG Usec. for Peace and Order directly in charge of the PNP affairs pursuant to the order of the President.
iii) Furthermore, he had no authority to directly interfere in the conduct of the PNP operations during the incident as he was not a member of the local Crisis Management Committee.
5. Mayor Alfredo Lim
a. Administrative charges may be initiated against Mayor Lim for Simple Neglect under Sec. 60 or the Local Government Code against Mayor Lim.
i) Based on the Crisis Management Manual, Mayor Lim was supposed to be the Chairman of the Crisis Management Committee tasked with activating the committee. While Mayor Lim claims to have activated the Crisis Management Committee, it appears that only the Negotiation Group appears to have been fully organized with the designation of Yebra and Salvador as negotiators.
ii) Based on the Crisis Management Manual, the members of the committee should be in the Crisis Management Operation Center while the crisis is in progress. Mayor Lim however, never went to the CMOC. He went instead to the Luneta PCP or advance command post only at around 5:00 p.m. and left it before the crisis was resolved. We are cognizant of the failure of Lim to fully activate the CMC and his questionable decision to leave the CMOC during a critical period of the incident.
b. For ordering the arrest of Gregorio Mendoza and directing to have him brought to Tondo, the initiation of administrative proceedings for Misconduct in Office under Sec. 60 or the Local Government Code is also recommended.
i) The arrest of Gregorio Mendoza may have triggered the chain of events that led to the shooting by P/SInp. Mendoza of the hostages. However, by itself, the order to arrest Gregorio Mendoza was not illegal nor improper as there was reason for his arrest – he was inducing his brother not to give up, thereby asking him to continue committing a crime. Moreover, it should be noted that it was not the arrest itself but the commotion/spectacle caused by Gregorio Mendoza in resisting arrest that attracted the media, and in turn provoked his brother to shoot the hostages. Had the arrest been carried out quietly and not televised, Mendoza might not have been provoked into shooting the hostages. It follows that the shooting of the hostages cannot be said to have been the proximate and necessary result of the order of Mayor Lim to have Gregorio Mendoza arrested. If it were true that Mayor Lim ordered Gregorio Mendoza brought to Tondo and that the statement could have meant that Gregorio Mendoza was to be bodily harmed or summarily executed, Mayor Lim could be held liable for Misconduct in Office.
6. Vice Mayor Isko Moreno Domagoso
a. Given the facts as established in the IIRC Report, there is no basis to file any administrative or criminal complaints against Vice Mayor Moreno Domagoso.
i) Based on the Crisis Management Manual, at the lower level, the Crisis Management Committee shall be composed of the “political leadership, military and police organizations, and non-government organizations in the locality”. It does not specifically state that the Vice Mayor should be a member of the Crisis Management Committee. The basis of the claim that the Vice Mayor is the Vice Chairman of the CMC is unclear. We find that the Crisis Management Manual does not specifically state that the Vice Mayor is the Vice Chairman of the CMC. However, Moreno was expressly ordered by the Mayor of Manila to go to the scene to make an assessment of what assistance the city may give.
ii) The participation of Moreno appears to be limited to being the liaison between the negotiators/CMC and the Office of the Ombudsman. It does not appear that he was officially one of the decision makers of the CMC and, hence, it is not clear if he had any obligation to remain in the Luneta PCP.
7. P/Supt. Orlando Yebra
a. Administrative proceedings against Yebra for Neglect of Duty may be filed under Sec. 2, Rule 21 of the PUR.
i) The mere fact that the negotiation failed and the hostage taker shot his hostages does not justify holding Yebra liable for gross incompetence as a negotiator. There was nothing that indicates that the decision of the hostage taker to shoot the hostages was due to any act or statement of Yebra. Instead, from the statement of other resource persons, it appears that the hostage taker shot his hostages due to what was done to his brother and not due to the faulty negotiation by Yebra. It should be noted that Yebra is not even an official, but merely an ad hocnegotiator of the PNP. Being a negotiator is not his primary function, but only an additional function given to him occasionally.
ii) However, Yebra may be faulted for failing to appropriately alert his superiors to be ready to take the necessary action when it appeared that Mendoza had already become more agitated and violent after reading the letter from the Ombudsman considering that Mendoza was shouting and even fired a warning shot. It appears that Yebra lost his focus/composure after Gregorio Mendoza told his brother not to yield unless his gun was returned. He allowed his attention to be diverted to charging Gregorio Mendoza as an accomplice of his brother instead of keeping focused on how to convince P/S Insp. Mendoza to yield.
8. Police Chief Inspector Santiago Pascual III
a. Administrative charges may be filed against Pascual for Gross Incompetence under Sec. 2, Rule 21 of the PUR.
i) There is no dispute that the SWAT’s attempt to breach the bus was a failure. The first attempt to breach the bus was unsuccessful. The assault team was able to enter the bus only because the hostage taker was killed by a sniper. It took almost an hour before the hostage taker was finally subdued. The assault failed due to inadequate strategy.
ii) Based on the testimonies of the bus owner/operators, the SWAT team failed to inquire from them about relevant information regarding the door and windows of the bus that would have helped them in coming up with a better plan to breach the bus.
iii) Pascual’s performance during the assault is summed up in his failure to formulate an adequate plan to breach the bus.
9. Ombudsman Merceditas Gutierrez
a. Any sanctions to be meted out to the Ombudsman for her role in this incident is the sole purview of the House of Representatives. Thus we recommend that the President refer the IIRC Report to the House of Representatives for appropriate action.
i) The failure of the Office of the Ombudsman to resolve the pending motion of Mendoza despite the lapse of more than 9 months is a violation of the rules of the Office of the Ombudsman itself that motions for reconsideration should be resolved in five (5) days from the date the same is submitted for resolution. It is also an evidence of the failure of the Ombudsman to fulfill her duty to act promptly on cases filed in her office.
10. Deputy Ombudsman Emilio Gonzales III
a. Administrative proceedings may be initiated against Gonzales for Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Sec. 22 of the Omnibus Rules Implementing Book V of E.O. 292 and other pertinent Civil Service laws, rules and regulations.
i) The case of Rolando Mendoza was assigned to the Department headed by Gonzales, and, as such, he may be held directly responsible for the delay in the resolution of his case.
b. Gonzales may be further held liable for Gross Misconduct under Sec. 3 of the Anti-Graft and Corrupt Practices Act if the claim of Mendoza that Gonzales demanded P150,000.00 in exchange for favorable action on his motion for reconsideration is true.
11. Erwin Tulfo
a. Mr. Erwin Tulfo’s interference with the hostage negotiation without authority from the CMC or the negotiators may constitute violation of the pertinent code of ethics. Tulfo’s actions, specifically his interference in the negotiations with Mendoza, should be referred to the KBP for possible violation of the applicable Code of Ethics.
b. Tulfo’s act of proceeding to interview Mendoza despite not being allowed by the negotiators borders on the criminal as it is tantamount to resistance and disobedience to a person in authority.
i) Tulfo sought permission to approach and talk in person with Mendoza but was not allowed by the negotiators. Yet, he managed to talk to Mendoza by phone.
ii) When he was already talking to Mendoza, Tulfo even complained to him that he was not actually permitted by the negotiators to interview him.
12. Michael Rogas
a. Any violation of the KBP Broadcast Code is not criminal but may be sanctioned by the KBP or the radio station concerned. Rogas’ actions, specifically his interference in the negotiations with Mendoza, should be referred to the KBP for possible violation of the applicable Code of Ethics.
b. Rogas’ behavior, during the critical period, of continuing with his interview of Mendoza while negotiation was going on and apparently giving Mendoza some moral support as well as misleading statements, also borders on the criminal.
i) Rogas kept contact with Mendoza without clearance from the CMC or the negotiators. Furthermore, his continues interview with Mendoza prevented the negotiators from contacting Mendoza especially during the critical period.
ii) Rogas also told Mendoza that the police could hear him and his statements that they should release his brother.
iii) Rogas even encouraged Mendoza to go on talking during the interview considering that he was being heard nationwide through DZXL and even kept asking him what he would do next, thereby pressuring him to take action if and when his demands were not met.
13. Jake Maderazo
a. Maderazo’s actions, specifically the interference of DZXL in the negotiations with Mendoza, should be referred to the KBP for possible violation of the applicable Code of Ethics.
14. ABC 5, ABS-CBN, GMA 7
a. Many radio and T.V. stations covered the hostage taking stations live. Some of them reported in real time in detail what the police were doing and their locations, thus making the hostage taker aware of the same. The hostage taker watched some of the coverage at certain time and reacted to what he saw on T.V. There is no law prescribing how the media should cover a hostage-taking situation, much less is there any criminal or civil sanction imposed for improper coverage.
b. In view of these, we recommend that the matter concerning the activities of the 3 networks during the crisis be referred to the KBP or to the appropriate media watchdog for possible violation of the applicable code of ethics.
15. SPO2 Gregorio Mendoza
a. Administrative charges against Mendoza may be filed for Serious Neglect of Duty under Sec. 2, Rule 21 of the PNP Uniform Rules for his refusal to comply with the lawful order to return to MPD HQ.
b. The filing of the complaint for Illegal Possession of Firearms may be filed against Mendoza for possession of his service firearm while not in uniform.
i) SPO2 Mendoza may be charged with illegal possession of firearms for carrying a gun while not on duty or in uniform unless he was then in possession of a valid mission order.
c. A criminal complaint against Mendoza for being an accomplice to the crime of Serious Illegal Detention may also be filed.
i) SPO2 Mendoza may be charged as an accomplice or accessory of his brother for advising his brother not to surrender unless his gun was returned. He, in effect, added his own demand to that of P/S Insp. Mendoza as a condition for the release of the hostages. It was also his legal duty as a policeman to stop a crime from being committed in his presence but failed to ask the hostage taker to surrender without conditions.
III. RECOMMENDED ACTIONS
1. Refer to the National Police Commission the filing of appropriate charges against P/Supt. Rodolfo Magtibay, Police Director Leocadio Santiago, Jr., P/Supt. Orlando Yebra, Police Chief Inspector Santiago Pascual III, and SPO2 Gregorio Mendoza for the reasons cited above;
2. The initiation of administrative proceedings against Mayor Alfredo Lim and the referral of the same to the DILG;
3. The initiation of administrative proceedings against Deputy Ombdusman Emilio Gonzales III by the Office of the President;
4. The referral of possible administrative violations by Ombudsman Merceditas Gutierrez to the House of Representatives for appropriate action.
5. The referral of the cases of Erwin Tulfo, Michael Rogas, and Jake Maderazo, and the three networks to the KBP or the appropriate watchdog organization for possible sanctions under the applicable Code of Ethics;
6. No filing of charges against retired PNP Director General Jesus A. Versoza, DILG Usec. Rico E. Puno, and Manila Vice Mayor Isko Moreno Domagoso;
7. Instruct the DOJ to expedite the resolution of the two criminal cases currently lodged againstSPO2 Gregorio Mendoza. Furthermore, the MPD may be directed to file the appropriate complaints for illegal Possession of Firearms and as an accomplice of his brother Rolando Mendoza for Serious Illegal Detention.
For the President’s consideration.
(Sgd.) PAQUITO N. OCHOA, JR.
(Sgd.) EDUARDO DE MESA
Chief Presidential Legal Counsel
APPROVE / DISAPPROVE
(Sgd.) Benigno S. Aquino III