Philippines Desk, Asian Human Rights Commission, Hong Kong
Although it is the duty of investigating officers and prosecutors to ensure that grounds exist upon which to charge someone with a crime and then to go to court promptly, in the Philippines this duty is at best taken lightly. More commonly, investigators find ways to subvert the legal process, such as by deliberately delaying the filing of charges to give themselves more time to extort money from the accused either so as to drop the charge before going to court or withdraw the case once there. Prosecutors are complicit, deliberately overlooking various irregularities in arrest and detention, and ignoring challenges to the legality of arrest and admissibility of evidence against the accused. Complainants too, particularly if they are minors or adults with no knowledge of the law, can find themselves completely trapped and at the mercy of investigators. Some who try to withdraw complaints are themselves threatened that they or their parents (if minors) could also be charged. The case of Felix Villamil is narrated here to illustrate how all this works in practice.
The search and arrest
Agents from the National Bureau of Investigation (NBI)- Sarangani District Office, an agency attached to the Department of Justice, served a court order on 11 January 2008 to search the Internet shop of Felix Villamil Jr. in General Santos City. Felix then learned that his shop, Netwarp Internet Café, had been under NBI covert surveillance for a month because of allegations that he and his staff were sexually exploiting and trafficking minors using their computer facilities and had made promises to recruit them as commercial models through his Rain Model and Talent Development Agency.
During the raid on the premises, even those materials not subject to the warrant of seizure were taken away, including computer cables and all parts, CDs and reams of paper. When Felix questioned the NBI investigators as to why they were taking materials that were not covered by the order, they ignored him. As retold by Felix in his own words:
I continuously ask them not to get the items that are not in the warrant and to conduct the search with care. They just throw everything they see, not even caring if they break or destroy items from my vicinity. They just ignored me and continued what they were doing. I asked them again if I can call a lawyer as to counsel me; one man said that no problem he is also a lawyer. They went on with their doings. After a while, they said that they are done and we have to go to their office. I voluntarily abide and went down to the first floor of the building. I saw my cousin [Maria Isabel Valenzuela, or “Mabel”], which is also my staff, at the counter near the exit, sitting. Then, someone from the NBI said that all of the items on the first floor, which is the Internet cafe, is confiscated and will be bought to the NBI’s custody.
They dismantled everything including the UTP/Internet cable attached to the walls, sockets, and the computer units. Even the box of the CD games that we use was taken. I asked them again that the CDs, blank bulk of coupon bonds and the like were not in the warrant and why get them? They continuously ignored my questioning and asked me to just shut up. After everything was taken, they ordered us to lock up the place and we will leave going to their office. So then, me and Mabel locked up the place and followed their mandate. I asked them if I could bring my car; they agree.
Under sections 3 and 8 of Rule 126 of the Revised Rules of Criminal Procedure, only property that is a subject of the offense seized during a search in the presence of two witnesses is legally acknowledged; however, neither of these provisions was followed during the raid of Felix’s shop.
Soon after arriving at the NBI office Felix and Maria Isabel were told that they were already under arrest—a fact that they both questioned while in custody and later when in court. Felix’s legal counsel submitted a petition demanding to have them released from custody, and the NBI sought approval from the prosecutor investigating the case to allow them to keep him. They argued that his alleged crime fell under the inquest procedures for a “continuing offence”, for which no prior arrest order is required. In fact, this principle, which is a legacy of the martial law regime that curtailed fundamental rights and liberties, only covers acts of rebellion. Even so, there have been debates questioning this doctrine and many experts want it abolished altogether. A Filipino jurist, Justice Isagani Cruz, in Umil vs. Ramos before the Supreme Court in 1990 argued:
To justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense… is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the ‘continuing’ offense of subversion.
So it was that Antonio Tagami, public prosecutor, concluded on 18 January 2008 that the “arrest [of Felix] without a warrant is not valid and his continued detention is illegal”. He further ruled that “without going into the merit of the case, the same falls under the category of ordinary filing because the acts complained of were allegedly committed prior to the arrest of the respondents and the same does not fall under valid warrantless arrest” as provided by section 5(a)(b) of Rule 113 of the 1985 Rules of Criminal Procedure, which clearly stipulates that arrest without warrant is valid only when the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or, when the offense has just been committed and the law enforcer has probable cause to believe based on personal knowledge that the arrestee was the offender.
In a joint affidavit the NBI investigators submitted to the office of the prosecutor, none of the questions that Felix and Maria Isabel raised regarding the legality of the search and arrest were answered. Apart from claiming that the search “was conducted in a peaceful and orderly manner” they also claimed to have properly informed Felix and Maria Isabel of their constitutional rights when implementing the search order and subsequent arrest.
In a complaint dated January 15, NBI Special Investigator (SI) Agapito Gierran and SI Noe Dasmariñas recommended that Felix along with a person whom they described as the talent agency’s marketing officer, Nestor Cabalquinto, and Eric Estandarte, whom they described as the talent manager, be prosecuted under the Anti-Trafficking in Persons Act of 2003 (Republic Act [RA] 9208) and the Special Protection of Children against Child Abuse Act (RA 7610). Nestor and Eric, it turns out, were shop patrons and not staff.
RA 9208 and 7610 are laws that provide special protection to vulnerable persons, especially minors, against exploitation and abuse; however, under these acts unless the accused is caught in the act the cases against them should proceed according to the normal process, meaning that they are entitled to ordinary preliminary investigations to determine whether or not a case exists upon which to lay charges.
In this instance the NBI claimed that the six complainants, five of whom were aged 16 and 17, had been studying in five different colleges and universities when the accused allegedly coerced them into doing things on the promise of getting them into professional modeling careers. According to the NBI, on 10 November 2007 a 17-year-old girl was forced to “suck a bottle of Red Horse (beer)” in front of her fellow models and was “instructed to suck the tongue of one of her friends” in open view of the others, leading the girls to meet the investigators on 11 December 2007 to file their complaints. The complaints address a range of other alleged offences, including that they were not paid for services rendered (to the agency that Felix owned) and that they were “forced (by the respondents) to wear their underwear or sometimes [stand] bare naked to pose for photo shots”. The NBI also claimed that the modeling agency did not have the appropriate permits, including from the Department of Labour and Employment (DoLE), allowing them to employ the services of minors.
Although Prosecutor Tagami ordered the NBI to release Felix on January 18, it was not until four days later on January 22 that they finally let him out. Maria Isabel had earlier been released on January 15, four days after they were taken into custody.
While in custody, one of the agents, SI Agapito Gierran, repeatedly put pressure, particularly on Felix, to pay money. Agapito had Felix frightened that he could face a life jail term and a two-million-peso penalty under RA 9208 once convicted. Instead, the officer allegedly offered Felix, if he paid up the case could be withdrawn in court. The delay in Felix’s release was because the police needed time to negotiate with him and his family. According to family members they did in fact make a down payment of 300,000 Pesos. Apart from cash, Agapito and another NBI agent even wanted Felix’s car and computers. They said that the amount had been divided among the NBI investigators and agents working with them, and would also be given to court staff where the case was pending, to ensure that it would be withdrawn. According to Felix:
When I was there, Agapito let me sign a document about the inventory of the seized items. Mabel is with me this time. After signing, Agapito instructed Mabel to go upstairs leaving me behind. Agapito then explained again the consequences of the case. He always insisted [on] the two million penalties and imprisonment. He then asked me if I’m not interested on resolving my case. I expressed that even though I don’t have fault, I wanted this to be finished.
We are now talking about money to settle everything. I told him that I don’t have money and that I can’t provide a large amount to settle. He then asked me to ask for help from my aunt and uncle. I asked him to give me back my mobile phone so I can communicate with them. He then handed me my phone and instructed me to go upstairs. And I did. I texted my aunt and uncle about it.
After a day or two, my aunt and one of my uncles, named Boy, were trying to negotiate with the NBI agents, specifically with Agapito. There were prices amounting to 1.5 million and so on. Then after, they wanted the computer units together with the money. For every day that I was detained, I’m constantly been mentally harassed by Agapito and several agents. They will always call me and talk to me to deal with the matter ASAP to prevent them from turning me over to court. They said that they will give few more days for us to come up with a settlement for whom which they prefer.
Agapito will always call me to ask about the transaction. I always refer him to my uncle and aunt because I have no knowledge of their talks. He keeps on saying that I should call my mother in Hong Kong and asked for the money they wanted so I’ll be free. He keeps on talking about the two million penalties and life imprisonment.
The case and harassment
Felix didn’t settle through money and after he was released the prosecutor’s office continued with lodging the case against him alone in court, apparently disregarding the questions raised over inadmissibility of material evidence and the problematic features of the initial arrest and detention that had already been uncovered. It took the office of the prosecutor nine months to resolve the case and move to court on 14 October 2008.
In this period, Felix and his family had to endure the NBI investigators’ continuing threats and attempts at extortion, both direct and via persons working with them.
When the case was first exposed publicly in April 2008, these attempts decreased; however, soon after the prosecutor resolved to file charges in court they increased again. Felix was told via intermediaries and SMS that he could now be arrested and an arrest order would be issued anytime soon and that the only option was to pay. At time of writing, there was no information regarding whether or not the court had already issued an arrest order. This further delay has again aggravated conditions for Felix and his family, permitting the NBI investigators or their envoys to step up their demands for money. The continuing harassment has forced Felix to leave the city, since those threatening and harassing him were armed and the likelihood of their resorting to violence increased after he went public on the case and caused the for the Military and Other Law Enforcement Offices (MOLEO) to investigate.
Under court rules, one of the grounds for any complaint to be dismissed is that a complainant desists from pursuing it. One of the complainants in this case has already signed an affidavit of desistance after being assisted by her parents to stop pursuing the case, although her name has not been deleted from the complaint. According to Felix, some others would like to do the same but NBI investigator Agapito has threatened them that they and their parents could face legal action themselves if they decline to see the case through. Because of this, Felix and his family expected that the attempts to get them to pay money would increase in number and urgency before the case goes to court hearings. Felix said of this:
After my release… one of the complainants talked to me and my then- lawyer that she really doesn’t want to file a case on me. She stated that she was just threatened by the NBI that if she will not cooperate, cases will then be filed on her. That is why she signed a complaint before the NBI without her parents knowing in the time of the event. I then requested her and her mother if they could do something about this. They offered to sign an affidavit of desistance…
When I was still under the custody of the NBI, all of the complainants visited me one night. I have talked to them inside my detention room. I have asked them what made them file a complaint that wasn’t true. They have expressed that the NBI agent, Agapito, talked to them and intimidated them to file a complaint against me and the other accused, including Mabel.
The lack of redress
While the prosecutor resolved to file a case against the respondent for violation of RA 9208 and 7610, meanwhile a complaint that Maria Isabel filed for arbitrary detention against the four NBI investigators and four others involved in arresting and detaining her was dismissed in September 2008, despite Prosecutor Tagami’s earlier order that the arrest and detention of Felix and Maria Isabel did not meet the criteria for arrest without warrant. The dissatisfactory outcome of that case has prevented Felix from also seeking a legal remedy for his arrest and detention. It also renders meaningless the 14 August 2008 recommendation of Danilo Rimonte, Graft Prevention and Control Officer of the Office of the Deputy Ombudsman for MOLEO, that “if he feels aggrieved, he may initiate the appropriate complaint, in the same manner as what his cousin had already done”. The Ombudsman took action to investigate this case after the Asian Human Rights Commission reported it to him.
Even if the court or ombudsman had looked on the accused persons’ complaints favourably, investigators or law enforcers who commit illegal acts or wrongdoing while conducting their duties are protected by the umbrella doctrine of the presumption of regularity. Under this doctrine, policemen or other law enforcers cannot in general be held to account for offences committed while in the performance of their regular duties. In one previous case involving a labour activist who complained of being gravely threatened while in custody of a security force, for instance, the ombudsman ruled that the latter could not be held to account because the alleged offence occurred in performance of regular duties and thus the presumption of regularity applied. Thus the NBI investigators in this case too can feel reassured that at the end of the day they can come up with pretexts to fall under the cover afforded by this doctrine.
The NBI is a specialized body whose agents have obtained relatively good training and skills; however, this particular case raises serious questions about the work of this organization. Are they law enforcers whose duty is to ensure the prosecution of those violating the penal code, or are they simply milking the cow that is law enforcement in the Philippines, like the ordinary constabulary? Unless checks and balances are put in place and those committing wrongdoing are held to account, the department to which the NBI is attached could end up as a haven for exploiters and extortionists, rather than genuine law enforcers and crime investigators.
There are various laws and procedures that could and should have been applied in this case to protect the rights of the accused, including those under the Rules of Criminal Procedure and the Rights of Persons Arrested, Detained or Under Custodial Investigation Act (RA 7438), but where prosecutors and others concerned with the criminal process fail to do their jobs effectively and become complicit with the investigators, either directly or indirectly, such provisions have little traction.
Irrespective of guilt or innocence, Felix and Maria Isabel should not have endured days of mental and emotional anxiety while in custody of NBI investigators making repeated demands of money in exchange for their freedom. They should not have had a case hanging over them for nine months while the investigators continued to harass and threaten them as well as some of the complainants. And they should have been entitled to genuine redress for the illegal search, arrest and detention that they experienced in January 2008, the facts of which have been substantively acknowledged by the prosecutor. That none of these things that should have happened did or that shouldn’t have happened didn’t indicates that even two decades after the end of dictatorship in the Philippines, the agents of law enforcement are still enjoying considerable impunity, violating laws where they please and lodging and withdrawing criminal cases on the power of the peso rather than the letter of the law.