The Manila Regional Trial Court Branch 19 through Presiding Judge Marlo Magdoza-Malagar found major inconsistencies and irregularities in the implementation of the search warrants against activist couple Cora Agovida and Michael Tan Bartolome, who were arrested on October 31, 2019.
The activist couple were among those arrested in a crackdown on the basis of controversial warrants issued by Quezon City Executive Judge Cecilyn Burgos-Villavert. More than 50 activists were arrested in simultaneous raids in Negros and Manila from October 30 to 31, all using warrants issued by Villavert.
Judge Magdoza-Malagar cited in a 13-page decision that the prosecution’s evidence proved that the application and issuance of search warrants were “improper and had no bases”.
“The prosecution failed to prove beyond reasonable doubt Bartolome and Agovida’s ownership or possession of the firearms, ammunition, and explosives and their lack of license to own or possess them. Thus, it failed to overcome the presumption of innocence which the accused enjoy. This Court is thus constrained to render a judgment of acquittal,” it said in the decision.
Behind the arrest
Activist couple Cora Agovida and Michael Tan Bartolome, along with their children and their children’s caregiver named Karlo, were sleeping at the time of the raid inside their rented unit in Paco, Manila.
At around 5 in the morning, they were all startled from the sudden barging on their doors as well as the sound of the knob being shaken.
Karlo, the caregiver, said that it was so loud that he quickly stood up from sleep.
Agovida said that their door was kicked open and about 10 to 15 SWAT members swarmed their unit. The SWAT members did not introduce themselves but only shouted: “Dapa! Dapa! Dapa!” [Lie down]
Upon entry, the SWAT members quickly pointed the guns at Agovida and Bartolome and forced them to lie face down. They were then handcuffed and ordered to not look back. While lying down, the activist couple only heard footsteps moving around them and a male voice saying “Dyan, Dyan ilagay”[Put that there.]
Their two children, ages two and 10, were also quickly taken away from them and brought to the other room.
The lights were still off when and it took 15 to 30 minutes when the SWAT turned it on. There came a man in civilian clothes holding a flashlight and a piece of paper approaching the activist couple as if to verify their identities. The same man who also read aloud the search warrant and said that, after an hour interval, they were only about to start the search.
At that point, Agovida said that some of the SWAT members left the room and other members of the searching team came in.
Some of the ‘evidence’ were recovered from their children’s drawers containing toys and clothes.
Elements of Philippine National Police (PNP), PNP Special Weapons and Tactics (SWAT), Criminal Investigation and Detection Group (CIDG) Manila District Field Office, and the Manila Police District (MPD) Explosive Ordnance Disposal Unit (EODU) were those that composed the team that implemented the Villavert warrant.
Bartolome and Agovida are both activists in Metro Manila.
Bartolome is the educational campaign officer for urban poor group KADAMAY Manila, while Agovida is a leader of Gabriela Manila.
Law enforcement violations
The court noted five major violations of law enforcement as grounds of acquittal.
First was the “knock and announce” principle that would require officers to notify the accused with the search warrant upon entry.
Judge Magdoza-Malagar also found inconsistencies in the police’s testimonies along with their sworn statements on whether the searching team did “knock and announce” or not, but knew all along that the subjects were asleep.
The court also found that when the police testified that they were already inside the place to be searched, it further “raised doubt on the reasonableness of the search”.
Second, the presiding judge said that the prosecution witnesses’ testimonies were also inconsistent in terms of the exact locations where the alleged firearms and explosives have been recovered.
“The foregoing inconsistencies refer to facts constituting an important aspect of the case that is, the recovery of firearms and hand grenades in the possession or custody of the accused. They significantly erode the credibility of the testimonies of the prosecution witnesses juxtaposed against the forthright and consistent testimonies of the accused and their insistence that the evidence against them were planted,” the decision order read.
The court also noted the prosecution’s failure to establish the chain of custody upon handling the confiscated items and their turnover.
It was on October 31, the arresting day, when Police Corporal (PCpl) Jan Erwin Isaac recovered the items but was only turned over to Police Major Cristina Macagba on December 16 or more than a month since the confiscation.
“The appreciable lapse of time between the confiscation and turnover of the items to the examiners was not fully accounted for PCpl Isaac failed to demonstrate before this Court how he handled the firearms and hand grenades during the intervening period,” stated in the decision.
“Did he (PCpl Isaac) take them home with him or left them at the police station? Were they accessible to other persons?” pondered Judge Magdoza-Malagar.
The court further noted that the certainty of the identity of the firearms and hand grenades could have been greatly ensured by the markings, but it was not the case with the recovered as such markings were only written in marker pen with black ink over a piece of masking tape.
The court also found suspicion following the SWAT members being unnamed.
“Their failure to account for their action hints at the irregularity in their performance of their official functions, effectively overcoming the presumption of regularity in the performance of official duties accorded in their favor,” the presiding judge affirmed.
Accordingly, the prosecution also failed to prove that the activist couple had no license to possess or own any firearm.
“If the evidence against Bartolome and Agovida were planted, which possibly was not foreclosed, what was then the basis for the application of the search warrants against them? Was there probable cause for their issuance as required by the Constitution? Notably, the testimonies given during the trial made no reference to the application of the search warrants. The police officers who testified were not among those who conducted the surveillance before the application for a search warrant was made and were not the ones who applied for the search warrants. They did not even know who applied for it. Given the protestation of the accused, it behooved upon the prosecution to show that the search warrants were issued in accordance with the Constitution. It was even the defense who requested for the records of the application for search warrants to be subpoenaed,” the court decision read.
Human rights defenders and supporters welcomed the acquittal of Agovida and Bartolome from the trumped-up charges of illegal possession of firearms and explosives—a usual charge against activists via raid crackdown since Duterte sat in power.
Karapatan reported that out of the 76 arrested based on Villavert warrants since, 22 individuals remain in prison, while two others continue to face charges but were released on bail.
“These court decisions reaffirm the assertions of those unjustly arrested and detained that there were violations of their rights to due process, that evidence was planted against them and that the charges are all made up by a regime that desperately seeks to silence activists and defenders,” said Karapatan in their statement.
The rights group also emphasized a message to the cops who arrested and imprisoned Bartolome and Agovida with the social media topic: #MananagotKayo!