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 arrested last October 31, 2019.

The activist couple was among those arrested via raid crackdown on the basis of controversial warrants issued by Quezon City Executive Judge Cecilyn Burgos-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 a certain caregiver named Karlo were sleeping that time inside their rented unit in Paco, Manila.

But at around 5 in the morning of October 31, 2019, they were all startled from the sudden barge 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 affirmed that their door was kicked open and about ten to 15 SWAT members swarmed inside their unit. The SWAT members did not introduce themselves but only shouted the first words: Dapa! Dapa! Dapa!

The activist couple said that they were able to identify the SWAT based on the uniform they were wearing.

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”.

Their children were also quickly taken away from them and brought to the other room. The children were crying.

The lights were still off and it took about 15 to 30 minutes when it was turned on. There came a man in civilian clothes who read aloud the search warrant and said that they were only about to start searching the 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, were only about to start the search.

Take note that the activist couple had been handcuffed prior to being informed about the search, more so, even before the first firearm (.45 calibre) was discovered.

At that point, Agovida said that some of the SWAT members have left the room already and other members of the searching team came in.

Such gathered pieces of evidence were recovered from particularly inside their children’s drawers containing toys and clothes, which the activist couple noted the accessibility not only to them but also to their two children.

It took about two minutes after the search was concluded.

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 the composite team which implemented the Villavert warrant.

It must be noted that the composite team had no part in the application for the said warrants.

Bartolome and Agovida were both activists in Metro Manila.

Bartolome is the educational campaign officer for KADAMAY, an urban poor group that struggled for marginalized communities in their right to livelihood and housing. Agovida on the other hand is a member of Gabriela, a women-led group that advances their rights, since 2004.

Law enforcement violations

The regional 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. And it had not been the case with regard to the arrest of Bartolome and Agovida.

Judge Magdoza-Malagar found inconsistencies in the police’s testimonies along with their sworn statements especially in the manner if the searching team did “knock and announce” 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 affirmed 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.”

“Did he (PCpl Isaac) take them home with him or left them at the police station? Were they accessible to other persons?” pondered by 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. Unless its marking was made by etching, in which the police again had another inconsistent claim which could have dispelled any doubt with regard to the identities of the items recovered and turned over.

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.

#MananagotKayo!

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 including the activist couple remain in prison, while two others continue to face charges as they 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 hashtag: #MananagotKayo! Roy Barbosa/manilatoday.net