MANILA (UPDATED) — A Quezon City court has acquitted of direct assault a Tokhang survivor who lived to belie the police's "nanlaban" claim.
The Quezon City Metropolitan Trial Court Brach 133 found no evidence that Efren Morillo shot at police officers during an alleged Oplan Tokhang operation in Payatas, Quezon City in August 2016.
The court acquitted Morillo “for failure of the prosecution to prove his guilt beyond reasonable doubt.”
Bagong Silangan Police claimed they were conducting house-to-house visits on August 21, 2016 in Payatas when they allegedly received a tip pointing to a drug den where a group of men supposedly involved in drugs and robbery holdups were staying.
Morillo and other unknown companions allegedly fired at the officers, who shot back. Morillo’s 4 companions were killed in the alleged shootout. They were identified as Anthony Comendo, Jessie Cule, Marcelo Daa, Jr., and Rhaffy Gabo.
Morillo, who was shot on the chest, played dead.
He testified that he managed to crawl towards a nearby ravine, escape and seek treatment.
He was later arrested and accused of shooting the policemen.
In acquitting Morillo of direct assault, the court said that the 3 officers involved in the operation were not able to see Morillo fire a gun.
Instead, 2 of the policemen, PO1 (now Patrolman) James Aggarao and PO1 Melchor Navisaga, pointed to their fellow-cop, PO3 (now Police Staff Sergeant) Allan Formilleza, as the one who fired his gun.
The court also found that PO3 Formilleza admitted in open court that the fourth cop whom Morillo allegedly shot — PSI (now Police Captain) Emil de los Santos, also known as Emil Garcia — was in fact not in the area during the operation, contradicting the allegation in the information or criminal charge.
“Verily, accused Morillo was not personally seen by the prosecution witnesses to be the person who fired a gun at the police operatives,” the court said.
Aside from the police not having seen Morillo fire a gun, the court also found the prosecution failed to prove he owned the gun he was supposedly using.
The paraffin test on Morillo also yielded a negative result for presence of nitrate powder.
PRESUMPTION OF INNOCENCE OVER PRESUMPTION OF REGULARITY
The court cited presumption of innocence in acquitting Morillo, which, it said, prevails over the presumption of regularity, a usual defense raised by policemen in drug war cases in claiming they were forced to shoot at the drug war victims because they allegedly fought back.
The officers, it said, did not comply with the Double Barrel circular of the Philippine National Police which requires coordination with local drug abuse councils for the conduct of Tokhang.
“While the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent, and it cannot, by itself, constitute proof of guilt beyond reasonable doubt. The presumption of regularity is disputable and cannot be regarded as binding truth,” the court ruled.
“Indeed, when the performance of duty is tainted with irregularities, the presumption is effectively destroyed,” it added.
TOKHANG CHALLENGE BEFORE THE SUPREME COURT
Morillo, assisted by the Center for International Law (CenterLaw) and the Butuyan & Rayel Law Offices, was among the first to question Oplan Tokhang before the Supreme Court in January 2017.
The petition remains pending but the Court of Appeals, in February 2017, granted the privilege of writ of amparo providing protection to Morillo, his family and companions.
In March 2017, Morillo also filed administrative and criminal complaints against the policemen. The complaints remain pending before the Office of the Ombudsman.
In a statement, Morillo's lawyers welcomed the ruling.
"It is a beacon of light for those whose hopes have been dimmed and distorted by the pro forma, lawless, and soulless ‘Nanlaban’ narrative. This decision is proof that truth will prevail and lives on,” they said.
“In light of this judicial finding, Mr. Morillo believes that his case before the Ombudsman should soon be resolved in his favor. With victims’ families steadfast and relentless in the pursuit of justice, Mr. Morillo – the one who lived – continues his call for accountability against his perpetrators and other perpetrators of the drug war,” they added.