Citing former Air Force Col. Eduardo Kapunan’s right to “full liberty”, lawyer Lorna Kapunan led her team of lawyers in offering to Branch 98 Rizal Regional Trial Court six exhibits, all but one of which were objected to by the private prosecutors from the National Union of Peoples’ Lawyers.
By MARYA SALAMAT
MANILA – The three detained ex-soldiers of the thirteen accused in the Olalia-Alay-ay double murder tried to bolster their petitions for bail in this week’s hearing. The three accused who are in government custody are former Air Force Col. Eduardo Kapunan and two former sergeants Dennis Jabatan and Desiderio Perez.
What remains for the court to hear before it evaluates the petitions for bail is the presentation of witness or of exhibits by the lawyer of the two former sergeants. This Tuesday Msy 28, lawyer Kapunan presented their lone witness and offered exhibits.
The two former seargeants are currently detained in the Rizal Provincial Jail. They attend the hearings in orange inmate shirt, handcuffed, and guarded or secured by policemen. Former Lt. Col. Kapunan, meanwhile, is under the custody of the National Bureau of Investigation in Manila, for medical reasons they said. He attends the hearing frequently in blue shirt with collar, with no handcuff, with armed security by the NBI and/or the Philippine Army.
Citing Kapunan’s right to “full liberty”, lawyer Lorna Kapunan led her team of lawyers in offering to Branch 98 Rizal Regional Trial Court six exhibits, all but one of which were objected to by the private prosecutors from the National Union of Peoples’ Lawyers.
Invalidating state witness Baretto’s testimony
To list, lawyer Kapunan offered as exhibit 1 their statement claiming that based on allegations sworn to by state witness (and former sergeant) Medardo Dumlao Baretto, he attested to the fact that Col. Kapunan was “not part of planning and execution of the alleged double murder of Olalia and Alay- ay.”
“Nowhere is it shown that there was a conspiracy between Kapunan and the accused,” lawyer Kapunan told the court.
But lawyer Remigio Saladero, on behalf of private prosecutors, objected to Kapunan’s first exhibit. He said “nothing in (Baretto’s) sworn statement is it said that Col. Kapunan was not involved in the abduction and murder of Olalia and Alay-ay.”
Accused Kapunan has maintained that his participation was “only to start or continue surveillance, in view of slowness of the person assigned to do surveillance on Ka Lando Olalia,” as his lawyer Lorna Kapunan told the court. On the other hand, state witness Baretto had previously told the court that for them operatives, Kapunan’s directive to “finish the job on Olalia” meant to ‘silence Olalia for good.’ He had also testified that after the double murder, Kapunan had also ordered the defense department’s (Special Operations Group) SOG operatives to keep a tight lid on this secret.
Questioning state witness Baretto’s credibility
Lawyer Kapunan offered as exhibit 2 their denunciation or direct questioning of the credibility of Baretto as main witness, citing Baretto’s second affidavit. She explained that in 2009, Baretto executed this affidavit “attesting to the fact that he was withdrawing his initial affidavit.” Lawyer Kapunan said Baretto had “extorted” and “perjured” himself. Their exhibit 2, she said, offers to show that “witness (Baretto) acted upon pressure and certain promises made to him.”
Prosecutor Saladero countered that the said second affidavit “has been repudiated by Medardo Baretto himself in court.” Lawyer Saladero quoted Baretto as saying he had not voluntarily forwarded this affidavit, and that it had not been signed in front of the notary lawyer or of any witness.
In court, Baretto had said this second affidavit was meant to ‘calm down’ Kapunan and buy him time until he could testify for the truth. Citing fellow operatives who had been gunned down or abducted, he had told the court he knew “what Kapunan is capable of.”
Delinking Kapunan from SOG, Olalia, Alay-ay murder
For exhibit 3, lawyer Kapunan offered a copy of “Special Order 164,” which, she said, would “attest that Kapunan at relevant date in the case was no longer assigned with the Special Operations group, as it is clear he was transferred to another unit effective Sept 16, 1986, one month before the alleged double murder occurred.”
At the court’s invitation, Lt. Col. Rory Pascua, 50, current assistant and acting chief of non-current records division at the Office of Adjutant General of the AFP, brought to the court a masterlist of military documents (covering 1986) specifically special orders. Lawyer Kapunan said that as witness, Pascua’s role was to identify and authenticate the copy of special order they presented as exhibit 3.
But even if Pascua had authenticated the special order as the same with the copy in their masterlist, prosecutor Saladero said the defense “failed to produce the original copy of the special order.”
Based on their questioning, Pascua admitted that the original was in a stencil, and what they have now in the AFP Adjutant’s office is just a mimeographed copy. It appeared that the original (which was a stencil) had been destroyed by the AFP. Lawyer Kapunan said that “in olden times you do not keep the stencil.”
Lawyer Kapunan later proceeded to call their offered exhibit 3 as “mimeographed original.”
The offered copy of special order “means Kapunan was relieved and reassigned – he’s supposed to report to GHQ Brigade the next day in Sept 1986,” Pascua told the court. But under questioning, he said: “I am only a custodian of the records.” Although it is S.O.P. in the Armed Forces of the Philippines that “upon issuance of orders, you are supposed to report immediately, otherwise you will be AWOL,” Pascua admitted that as custodian of records of retirees and WW2 veterans, he has “no personal knowledge whether Kapunan reported indeed” to his new assignment.
Using amnesty “to extinguish whatever liability of the accused”
As exhibit 4, lawyer Kapunan presented to the court a copy of the certificate of amnesty granted by the Amnesty Commission on March 23, 1995. She said any act committed in connection with rebellion is covered by the amnesty. By law, she added, “it extinguishes whatever legal liability Kapunan and all similar situated had in connection with the political exercise.”
She next presented to the court as their proposed Exhibit 5 Kapunan’s identification card as issued by the National Amnesty Commission in 1995, certifying that, as pictured and named, he was indeed the person granted the amnesty.
Prosecutor Saladero objected to exhibit 4, saying it is “irrelevant, immaterial and impertinent to the case, considering that the Olalia murder is not covered by the said amnesty given to the accused.”
He added that as required by rules governing the granting of amnesty, it had also not been shown “that the (double) murder was committed in relation or furtherance to the rebellion.”
Using a former general’s letter
Lawyer Kapunan also offered as another exhibit the request letter to AFP non-current records division of retired Gen. Alexander P. Aguirre. Writing on behalf of Col. Eduardo Kapunan Jr., Aguirre had asked “for a copy of any document to show that all his connection to SOG unit was terminated on Sept. 1986.” This caused Pascua to look for such document in the archives.
The prosecutors from NUPL objected more “to the purpose for which this (exhibit) was offered.”
Regional Trial court Branch 98 (in Rizal) presiding judge Ma. Consejo Gengos-Ignalaga “duly noted” the offered exhibits and the raised objections, saying these would be evaluated by the court.
Lawyer Kapunan pressed her client’s case for petition for bail, citing Kapunan’s right to full liberty and claiming that the evidence against him is “not strong.” But private prosecutor Saladero asked the court to note their “humble opinion” that they have been able to “prove that the evidence of guilt is strong.” The prosecutors have opposed from the start the petition for bail of the three accused in custody.