Transcript of ANC's Headstart Interview of Senate Minority Leader Franklin M. Drilon

Q: The Senate minority will be filing a resolution today denouncing the DOJ's downgrading of the charges. How was the DOJ wrong?

SFMD: A lot. Firstly, during the hearing in November 2016, Sec. Aguirre said this is a premeditated killing.

Q: On the Espinosa?

SFMD: On the Espinosa, He said it was a premeditated killing. Why? The fact that the PNP applied for a search warrant to search a detention cell is unusual and smacks of a premeditated plan, in this particular case, to kill Espinosa. Number two, the SOCO was informed at 3:38 in the morning that there will be a raid at 4 o'clock in the morning.

Q: Too late?

SFMD: Too early. Before they conducted the raid, the SOCO was told that they will conduct a raid and you better be there. Number three, there was an overwhelming force; 19 police personnel served a warrant on a provincial jail. These are the circumstances that led Sec. Aguirre. I have it here - on the record - I asked Sec. Aguirre, these circumstances, Mr. Secretary, would lead you to a conclusion that there is a premeditation here. Mr. Aguirre said "I think there is premeditated killing on Mayor Espinosa."

A premeditated killing is murder. From the mouth of Sec. Aguirre, he said there was a premeditated killing or murder. So why did he downgrade? That's point one.

Point two, why did the judge immediately grant the downgrading? The judge should have allowed the case to proceed on the basis of the murder information filed. If the evidence that it is merely homicide, then the accuse in this particular case can be convicted of homicide. The judge gravely abused his discretion here. I don't want to say there was collusion, but these circumstances would raise doubts in my mind. As a former justice, indeed something is fishy here. There is a conspiracy to go around the rule of law. It is really unfortunate because this encourages impunity. If we do not do something about this, then people will just lost their faith in our ability to enforce rule of law. Can you imagine 19 operatives would "raid" a provincial jail and would allegedly recover a gun. And yet the judge here would allow the downgrading of case from murder to homicide and allow bail.

You may ask the question, what is the remedy of the people? This is very unusual issue, because under our procedure it would be the DOJ who would have control over the prosecution. And the DOJ said there was no murder and it's only homicide. What's the remedy? Fortunately the Supreme Court in one case - in the case of Narciso vs Cruz - the court said that the private complaining party - meaning the family of Espinosa in this particular case - could bring the issue to the Court of Appeals and the SC, raise the grave abuse of discretion committed by the judge in allowing the downgrading.

Q: In the CA or SC?

SFMD: In the CA first in order to correct this patently abusing discretion committed by the judge.

Q: The DOJ memo claims no taking advantage of superior strength with the aid or armed men.

SFMD: First, on no premeditation. I'm reading the transcript during the hearing last year, where Aguirre said there was a premeditated killing. Under our Revised Penal Code, premeditation qualifies killing as a murder.

Number two, they said there was no abuse of superior strength. There were 19 policemen who served the warrant at 4:30am in a provincial jail. How can you say that there is no abuse of superior strength? It's obvious the mere fact that there were 19, an overwhelming number in trying to serve a simple warrant in a provincial jail, allegedly to look for a gun. In our hearing and upon my questioning, the PNP said they knew of the gun one week ago. If there was gun and they knew about it one week ago, why they did not confiscate it? And Aguirre admitted that there was no need for a search warrant. All these circumstances led us to a conclusion that there was a conspiracy, there was a collusion here between the DOJ, the PNP, and it is possible that this judge who allowed the downgrading of the case. The SC should now look into the behavior of this judge, because this is so unusual that these things happened.

Q: This case was actually investigated by 2 committees...what action other than the filings of a resolution can the Senate take?

SFMD: First, the judicial remedy is what I have mentioned, meaning the relative can bring it up to the CA or the SC. Even if in theory the DOJ has the control of the prosecution. But in this particular case, obviously the prosecution is part of the collusion in order to downgrade the case, hence you cannot trust them to elevate this matter to the SC. In fact ordinarily, the investigative body that filed this case is the NBI, but the NBI is under the control and supervision of the DOJ.

Q: What can the Senate do? Can you file perjury cases against Aguirre?

SFMD: Theoretically we can file. This is a cabinet secretary and the tenure in the cabinet is upon the wish and confidence of the President. We can put political pressure. Also we can join as intervener the appeal that will be done. There is also a possibility that the Senate can join the family of Espinosa as petitioners in appeal before the CA or SC.

Q: President Duterte said that no love lost for Mayor Espinosa and he even said that he will defend Supt. Marcos kasi drug lord naman ang pinatay.

SFMD: Yes, but the principle that is stoned in our system is that you are presumed innocent until proven guilty. Even if you are a murderer, appropriate evidence must presented in court. In other words, you cannot be convicted on the basis of media reports. The fact that they are drug lords, assuming that they are, but evidence must be presented that they are drug lords and the fact that they are drug lord did not justify the murder of Mayor Espinosa under these circumstances. Otherwise there will be anarchy.

Q: This is about police abuse?

SFMD: This is about abuse of government authority.

Q: If it's now downgraded to homicide, what happened to the 19?

SFMD: Right now they are already on bail. They are free. The penalty is less than life imprisonment.

Q: Can they go back to service?

SFMD: They should not be allowed to go back to service. And that's the area of inquiry that we must do, because in November they said that the administrative matter will be decided - I don't remember their deadline. There is a mechanism in PNP, which is supposed to cleanse their ranks of the scalawags like these.

Q: Do you think Sec. Aguirre's action was influenced by the expression of support by Pres. Duterte for Marcos and his police officers?

SFMD: I don't want to speculate on the motives. I just want to see and hear...it is very clear that whatever motivated Sec. Aguirre, the motivation was wrong. He was ill motivated by this. In fact, on the basis of what we've seen, there could even be malice. He admitted it was premeditated and suddenly, five months or six months after he turned around and directed the prosecutor to downgrade. And here, the judge, why he was so fast in downgrading it? That's the area, which the court may want to look at. Ordinarily the judge should allow the case to proceed and let it be questioned in the appellate courts.

Q: What can be done to the judge?

SFMD: Firstly, we must allow the judicial process to proceed, meaning that it should be elevated to the CA and SC. Once the SC has ruled that there is a grave abuse of discretion on the part of the judge, I would strongly advocate that an administrative proceeding should be initiated against the judge, because either he is incompetent or in collusion.

Q: Does a complaint have to be filed against the judge?

SFMD: The SC can take moto propio action and have the judge investigated.

Q: On the Senate investigation on bank glitches

SFMD: We must be very careful not only on the part of the Senate, but also on the part of the media. We must exercise prudence. We should be prudent in investigating bank glitches. We need to assure public of the stability of our banking system. We should not speculate because we must reassure of our people of the stability of the banking industry. We must reassure our people that nothing is wrong. No depositor lost money. They have complained but the deposits were preserved and returned. There was no hacking, because we cannot afford to shake the belief of our people in the banking system. He must be very careful. We must not be part of any effort to destabilize our banking industry.

Q: On the HoR and Court of Appeals issue over the Ilocos 6

SFMD: The House is acting within its bounds when it started to conduct as to how the sin tax, which amounts to billions, is being spent. That is within the prerogative of Congress especially now that we are trying to raise taxes. Certainly it is within the prerogative of the HoR to inquire how the sin taxes are being disbursed in this part of our country. In my estimate last year, tobacco-producing provinces were entitled to P9 billion in excise taxes on tobacco.

It has already been decided in 19050's that the legislative has the right to compel a witness to attend and answer questions, which are propounded on them, unless it will incriminate them. You have not right to refuse to answer questions. If you do so, without any basis, you can be cited in contempt and detained

The resource persons also have the right to seek judicial relief. They will argue that their refusal is not contemptuous, but they can bring the issue to the judicial system.

Q: Can they refuse to answer?

SFMD: No, they cannot refuse unless they would say that their answer would incriminate them in a criminal case and their answer can be used in a possible criminal case.

Q: We're talking about the people's money and their refusal is already irritating Congress.

SFMD: It's beyond irritation, because if you allow a witness not to respond, even if it will not incriminate the witness, then you cannot conduct any hearing and you cannot draw the necessary data for you to come up with appropriate legislation. Remember Karen the inquiries are in aid of legislation. If the resource person refuses to answer, you have no basis.

Q: What you are saying is they should answer but they're not and went to CA? From there?

SFMD: I have made public my view. The House is questioning the authority of the CA to issue a writ of habeas corpus. The House has every right to question, but they should bring this to the appropriate body, which is the SC. In other words, the procedures should be followed. We should avail of the remedies under the law. They should go on a petition for review in the SC.

Q: Can the House file an admin case against eh CA justices?

SFMD: That is within their prerogative to do. But they should first establish that there was an error, there was a grave abuse of discretion and there was malice by bringing this to the SC. Filing an administrative against to what you perceive as a grave abuse of authority is not the remedy. The remedy is to bring it up for review in the SC. If the SC says there was malice, incompetence on the part of the justices, then on that basis maybe you can file ad administrative case.

Q: How can that be done where you're talking about you are three co-equal branches of government.

SFMD: That is why we have a system of check and balance. That is the role of the SC to act as referee to say and to rule as to who is wrong and who is right. We cannot assume that we are always right.

Q: Can Congress really abolish the CA? SFMD: Theoretically, since the CA is created by law Congress can abolish. But having said that, we will oppose it in the Senate. It will never happen. The CA is precisely established as part of the hierarchy of our court system. If we remove the CA, all the cases in the RTC will go to the SC.

Q: If Congress insists on this, could there be a constitutional crisis?

SFMD: I don't think so. But that's possible. I would appeal to our friends in Congress: bring it to the SC. That is the more reasonable manner by which this dispute can be settled.

Q: On a more political point of view, are you curious with the fact that you have Gov. Marcos and Cong. Farinas, etc...

SFMD: I would just rather express opinions on the basis of what proper behavior there should be in terms of process that we should follow. For the orderly disposition of this very sensitive issue, they should bring it to the SC and once and for all, the SC should decide whether or not it was proper for the six employees to claim that they could not answer, because asking the question is within the prerogative of the Congress and refusing to answer should not be tolerated, unless it is based on the ground that the answer could incriminate the witness and the answer can be used against him or her.

Q: We have gov't employees not answering the question. What is the most sever penalty that Congress can give?

SFMD: Congress is not supposed to impose penalties except by law.

Q: The maximum is detention?

SFMD: The maximum to compel them to answer is to detain them until they give the answers.

Q: Technically you can detain them for months?

SFMD: Technically, yes, especially when the SC says you have no right to refuse to answer the question, because nothing is incriminating.

Q: If they are fearful of their lives?

SFMD: Well, in the Senate we have our own witness protection program and we provide security to the witness. So it should not be the basis for refusing to answer. The only justification for refusing to answer a question in a congressional inquiry is when the witness claims that his or her answer could be used against him or her in a criminal case.