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Pestano.position.paper

Pestano.position.paper

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Published by pinoydooyeweerdian
The motion for reconsideration that led to the filing of murder charges against 10 Philippine Navy men
The motion for reconsideration that led to the filing of murder charges against 10 Philippine Navy men

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Published by: pinoydooyeweerdian on Jan 11, 2012
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06/30/2013

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1
R
EPUBLIC OF THE
P
HILIPPINES
 O
FFICE OF THE
O
MBUDSMAN
 F
OR THE
M
ILITARY AND OTHER
L
AW ENFORCEMENT OFFICERS
 3
RD
 
F
LR
.
 
O
MBUDSMAN
B
LDG
.
 
A
GHAM
R
OAD
 D
ILIMAN
,
 
Q
UEZON
C
ITY
 S
PS
.
 
F
ELIPE
&
 
E
VELYN
P
ESTAÑO
 
OMPLAINANTS
, OMB-PA. 1223-5For: MURDER--
VERSUS
--CAPT
 
R
ICARDO
O
RDOÑEZ
,
ET
.
AL
,
 D
 EFENDANTS
 .
 X____________________________________X
 
THE
P
OSITION
P
APER
 
Complainants, the spouses Felipe and Evelyn Pestaño, parents of the late EnsignPhillip Andrew A. Pestaño, by counsel, and unto this Honorable Office, respectfullypresent their
Position Paper 
with the following submissions:
P
REFATORY
S
TATEMENT
 
When physical evidence runs counter totestimonial evidence, conclusions as to physical evidence must prevail.
1
 
Of the gruesome and untimely death of Ensign Phillip Andrew A. Pestaño there are veryfew facts that are not disputed. Yes, he was found dead inside his stateroom on the ship
 BRP Bacolod City
(LC 550) on September 27, 1995 as it was heading for the PhilippineNavy headquarters on Roxas Boulevard, Pasay City from Sangley Point in Cavite.He was only 23 years old, a be-medaled member of the Philippine Military Academy(PMA)
 Maalab
Class of 1993, and a cargo and deck and gunnery officer of his last shipof duty who at the time of his untimely death, had a promising career ahead of him.But most everything else is under question. In fact, there is no doubt that the single mostcontroversial and most disputed characterization of his grievous passing is that it wasnothing more than a case of an unfortunate but undeniable suicide.It was a straight-forward case of a suicide, naval authorities said, conveniently followingthe haphazard and slipshod investigations of the Western Police District and the NationalBureau of Investigation (and much later, the Criminal Investigation and DetectionGroup). But Ensign Pestaño’s death – presented by these investigative agencies as thattragic but ultimately inscrutable event of a young and promising life untimely snuffed out
1
People v. Aguinaldo 316 SCRA 819 (1999).
 
2by unseen psychological forces – simply had far too many loose ends to invite readycredence as no more than self-inflicted.For one, Ensign Pestaño’s personal and professional circumstances at the time of hisdeath simply do not fit the bill of someone who would take his own life. As a navalofficer – a graduate of no less than the Philippine Military Academy (PMA), thecountry’s top military school – he excelled in his professional undertakings he was aboutto marry his lovely fiancée; it simply did not make any senseAs more and more details of his death were brought to light, investigations carried out bythe WPD, NBI and the CIDG started looking like a massive cover-up more than slipshodand haphazard efforts at finding the truth; His family thus embarked on a long andcontinuing quest for justice for their fallen son, now running into its 14
th
year.Why his death is not the result of a self-inflicted shot to the head and who are responsiblefor his death are the subject of the discussion in the following sections of this
PositionPaper.
More importantly, this
Position Paper 
presents new pieces of evidence recentlyuncovered that supports the filing of charges against the Respondents.
A
 
M
ANIFESTATION ON THE
P
ROCEDURAL
A
NTECEDENTS OF THE CASE
 
1.
 
After eight joint committee hearings over a one-year period, the SenateCommittees on Justice and Human Rights and on National Defense and Securityissued on January 29,1998 the joint Committee Report No.900 on the mysteriousdeath of Ensign Phillip Andrew A. Pestaño on September 27, 1995 onboard the
 BRP Bacolod City
.2.
 
Committee Report No. 900, among other things, concluded that the junior navyofficer “did not kill himself aboard [the ship]
2
but that there was “a deliberateattempt to make it appear that [he] killed himself in his stateroom”
3
and that “theattempt to make it appear that Pestaño killed himself inside his stateroom was sodeliberate and elaborate that one person could not have accomplished it byhimself.”
4
A veritable cast of the country’s top private forensic medicine experts,namely, Dr. Ernesto Gimenez, Dr. Dario Gajardo, Dr.Antonio Rebosa and Dr. BuCastro,provided expert testimony debunking the suicide theory. They werecomplemented by American experts Mr. Wayne Hill Sr., a crime scenereconstruction pioneer and Mr. Ron Rice, a handwriting analysis specialist,Filipino ballistics experts Dean Artemio Panganiban, Jr. and Prof. ErnulfoGrimares, and questioned documents expert, Col.Pedro Elvas (ret.), former headof what is now the PNP’s Crime Laboratory Service.3.
 
Committee Report No. 900 made the following relevant recommendations to theOffice of the Ombudsman:…iii. An independent investigation be conducted by theOmbudsman on (a) the legality of loading more than 14,000 boardfeet aboard BRP Bacolod City in September 1995; and (b) the
2
Senate Joint Committee Report No. 900, Committees on Justice and Human Rights, and on NationalDefense and Security, January 29, 1998 at 48. [hereinafter, Committee Report No. 900]. Its conclusionsand recommendations were referenced in the Joint Complaint Affidavit dated Oct. 27, 2005 as
ANNEX S
.For the convenience of the Honorable Office, a complete copy of the same Report is attached, albeit, asstated, the full contents of the same Report had been previously referred to it by the Senate.
3
 Id.
4
 Id.
 
3legality of discharging fuel oil in Mindanao in September 1995andthe liability, if any, of persons who authorized such discharge;iv. An independent investigation be conducted on thecircumstances surrounding the killing of Ensign [Phillip AndrewA.] Pestaño with the end in view of bringing the perpetrator(s) to justice, as well as identify the persons who participated in thedeliberate attempt to make it appear that Pestaño killed himself.
5
 4.
 
But in his March 28, 2000 Resolution, then Ombudsman Aniano Desierto, whilehe conceded to the findings of the Senate legislative investigations that the victimwas indeed murdered, he concluded that the conduct of further investigation is nolonger warranted as it would only be a waste of time, considering that the physicalevidence, according to him, had been tampered with, and not to mention the lapseof time.5.
 
Some five years later during the term of Ombudsman Simeon Marcelo, onOctober 11, 2005, Complainants filed an Ex-Parte Motion to Re-Open the Casefor Submission of Newly Found Evidence Against the Now Named Respondents.As the Motion’s title said newly-discovered evidence justified the reopening of the investigation on the case.6.
 
On October 27, 2005, Complainants filed a joint Complaint-Affidavit accusing allthe Respondents (with the exception of P01 Mil I. Leonor and a ship crewidentified only as SN1 Miranda who would be included later) of conspiring in thevictim’s murder. In response, Director Rudiger Falcis II issued an Order datedDecember 6, 2005 finding the Joint Complaint-Affidavit filed by theComplainants here, the Pestaño couple, parents of the slain officer Ensign PhillipAndrew A. Pestaño, to be “sufficient in form and substance.” He thereby directedRespondents to file their Counter-Affidavits within 10 days from receipt.Complainants, according to the Order, “may file a Reply-Affidavit within 10days” of the receipt of Respondents’ Counter-Affidavits.7.
 
The case had criminal and administrative aspects. The Order was issued under theCase Title OMB-P-CP05-1228-J (OMB-P-A-05-1223-J) for: Murder and GraveMisconduct. Note that there was only one Order covering both criminal andadministrative cases. Para. 3 of the said Order stated that “Failure of respondentsto file their counter-affidavits and/or submit all requirements of this Order shall beconstrued as a waiver of the right of preliminary investigation. Likewise, failureof the complainants to submit a reply shall be construed as a waiver of the right topresent rebuttal evidence. Consequently, the instant case shall be deemedsubmitted for resolution on the basis of the evidence on record, without furthernotice.”8.
 
The deadlines for submission of documents in both cases were the same. In fact,Respondents failed to submit their Counter-Affidavits within the prescribedperiod of time. It was much later when five of the Respondents submitted theirCounter-Affidavits.
 
The five Respondents are namely CAPT Ricardo MartinezOrdoñez, LCDR Reynaldo P. Lopez, LCDR Luidegar Cruz Casis, LT Joselito
5
Id.
 

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