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Suspected masterminds of Esperat killing granted temporary restraining order

(CMFR/IFEX) - The Cebu City Court of Appeals issued a 60-day temporary restraining order (TRO) on 25 March 2008 in the trial of the suspected masterminds in the killing of a journalist. Cebu is a province approximately 562 km south of Manila.

A three-page resolution penned by Associate Justice Francisco Acosta and co-signed by Associate Justices Pampio Abarintos and Amy Lazario-Javier granted the 4 February petition filed by Osmeña Montañer and Estrella Sabay, accused of ordering the 24 March 2005 killing of journalist Marlene Esperat, asking for the issuance of a TRO to prevent Cebu Regional Trial Court (RTC) Branch 7 Judge Simeon Dumdum from hearing the case.

The Cebu Court of Appeals has yet to issue a resolution on the petition for certiorari also filed by Sabay and Montañer on 4 February. A certiorari is a writ which could be issued by a superior court to a lower court to annul or modify ongoing proceedings if the latter judge acted on a case outside his jurisdiction.

Sabay and Montañer argued that Dumdum has no jurisdiction over the case since the 23 November 2005 Supreme Court resolution approving the transfer of the case from Tacurong City, Sultan Kudarat to Cebu City, Cebu only applied to then accused Estanislao Bismanos, Rowie Barua, Gerry Cabayag and Randy Grecia.

Cebu City Regional Trial Court Judge Eric Menchavez had earlier sentenced Bismanos, Cabayag and Grecia - the gunman, lookout, and co-conspirator - to life imprisonment on 6 October 2006. Barua, who turned state witness, was discharged.

The Freedom Fund for Filipino Journalists (FFFJ), a coalition of six media organizations working to promote and protect press freedom, petitioned the Supreme Court on 4 July 2005 for the transfer of the Bismanos et.al. case to Cebu. The Center for Media Freedom and Responsibility is a founding member of FFFJ and serves as its secretariat.

FFFJ asked for the transfer in response to the safety concerns of the witnesses and the need for a more neutral court and environment, the accused being allegedly influential in Tacurong.

Esperat, who had written exposés accusing Montañer and Sabay of corrupt practices, was gunned down in full view of her children while the family was having dinner in their Tacurong City, Sultan Kudarat residence. Sultan Kudarat is a province approximately 975 km south of Manila.

Sabay and Montañer were not included in the Supreme Court resolution granting the transfer of venue because Tacurong City Judge Francis Palmones, then presiding judge of the case, had dismissed the case against Sabay and Montañer. Palmones dismissed the case against the two alleged masterminds even before the prosecution had presented evidence.

Private prosecutor Nena Santos said that the Montañer and Sabay petition for certiorari and TRO is "another scheme to get away with murder through technicalities."

"I'm discouraged and saddened (by the issuance of the TRO), but I'm not giving up," Santos said.

Santos filed a letter to the Supreme Court on 24 March asking for a "declaratory resolution" on the case's change of venue. In her letter, Santos asked for the Supreme Court to state "that only the Supreme Court has sole authority to act on matters affecting the change of venue of trial in criminal cases and that (the 23 November 2005 Supreme Court resolution ordering the transfer of venue) clearly subsumes and encompasses the trial" of Sabay and Montañer.

Santos also asked for the Supreme Court to require the accused to explain why they should not be cited for contempt since the issue of transfer of venue has already been resolved by the Supreme Court, to direct the Cebu Court of Appeals to dismiss Sabay and Montañer's petition for certiorari, and to direct the Cebu RTC branch 7 to proceed with the case.

"Considering the absurdity of the position the accused have now taken, i.e., that the case should be returned to Tacurong City, or refiled in Cotabato City, we feel that it behooves the Supreme Court as a court of law and equity to use its plenary power to assist the People of the Philippines, private complainants and the media group in obtaining a speedy, just and inexpensive determination of this only media murder case where the masterminds have long been identified, investigated, re-investigated, charged and re-charged but never arrested and brought to trial," Santos said in her letter.

"The authority of the Court and respect for fair trial are put to the greatest test when influential high government officials are the accused. Even when they are tried they have resources and connections to reduce the trial to a farce. In the case of Marlene Esperat, the accused masterminds' abuse of the judicial process makes a mockery of our laws and the concept of fair trial. Their unwarranted reliance on technicality, which amazingly has been aided by some judges have openly embarrassed the administration of justice with impunity," Santos added.

Dumdum issued arrest warrants for Sabay and Montañer on 4 February, but the two were never arrested.

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