MANILA - The Senate, as part of Congress, may not review a resolution of the Department of Justice (DOJ), which is part of the co-equal Executive Department, according to Justice Secretary Vitaliano Aguirre II.

Aguirre was reacting to statements from several lawmakers calling for an inquiry into the downgrade of charges against several police officers indicted for the killing of Albuera, Leyte Mayor Rolando Espinosa at a sub-provincial jail on Nov. 5, 2016.

• Read: Aguirre gets flak from senators: 'Flip-flop, fake news king'

"I don't know why the Senate want(s) to question the decision of the DOJ in this connection because, if you review the Constitution, there's such a thing as separation of powers," Aguirre said.

"They (senators) are the Congress, we belong to the Executive, and [there's] the Judiciary," he said on Wednesday.

Aguirre earlier received flak from several senators who expressed dismay at the amendment of the information filed against 19 policemen led by former Criminal Investigation and Detection Group Region 8 (CIDG 8) chief, Supt. Marvin Marcos, from murder to homicide, a bailable offense.

All of the accused are out on temporary liberty after their bail petitions were granted by the Baybay City Regional Trial Court (RTC) Branch 14.

Aguirre expressed willingness to attend any Senate inquiry into the matter, but said the probe must only be limited to the circumstances behind the decision of the DOJ to downgrade the charges, not on the resolution itself on the petition for review filed by Marcos and company.

"Courts lamang makapag-overturn ng resolutions namin [at the DOJ]… [the Senate] could investigate the circumstances in the issuance of the resolution, but I believe the Senate has no power to overturn any resolution coming from the Department of Justice. Hindi ganoon ang procedure, that is not their function," Aguirre explained.

The case involves the killing of Espinosa and another inmate, Raul Yap, at the Leyte sub-provincial jail in November.

Marcos' group went to the facility to serve search warrants on Espinosa and Yap for their alleged possession of a firearm and illegal
drugs, respectively.

The two inmates died in what the accused described as a "shootout."

The National Bureau of Investigation (NBI), an attached agency of the DOJ, conducted an investigation into the incident and found that the deaths of the two inmates resulted from a "rubout."

WHAT WENT BEFORE

The DOJ conducted the preliminary investigation of the complaint filed by the NBI against Marcos' group in its main office in Manila.

On March 2, 2017, the panel of prosecutors handed down its 24-page resolution finding probable cause to indict the following with two counts of murder: Supt. Marvin Marcos, Supt. Noel Matira, Chief Insp. Leo Laraga, SPO4 Melvin Cayobit, PO3 Johnny Ibañez, Senior Insp. Deogacias Diaz III, SPO2 Benjamin Dacallos, PO3 Norman Abellanosa, PO1 Jerlan Cabiyaan, Chief Insp. Calixto Canillas, Jr, Senior Insp. Lucrecito Candilosas, SPO2 Antonio Docil, SPO1 Mark Christian Cadilo, PO2 Jhon Ruel Doculan, and PO2 Jaime Bacsal.

The panel also recommended the indictment of the following with one count of murder for Yap's death: SPO4 Juanito Duarte, PO1 Lloyd Ortigueza, Senior Insp. Fritz Blanco, and PO1 Bhernard Orpilla.

The resolution was signed by Senior Deputy State Prosecutor Lilian Doris Alejo, Senior Assistant State Prosecutor Olivia Torrevillas, State Prosecutor Jinky Dedumo, Assistant State Prosecutor Karla Cabel, and Prosecution Attorney Moises Acayan who found that "[t]he killings are qualified by evident premeditation since the attack was well planned."

Also recommended indicted for two counts of the violation of Article 129 of the Revised Penal Code for maliciously obtaining search warrants and abuse in the service of the same were Laraga, Abellanosa, and Paul Olendan, the witness used by the policemen in obtaining the warrants.

Probable cause was also found against Olendan for the crime of perjury.

Marcos and company were indicted before the Baybay RTC, but the policemen filed a petition for review with the Office of the Secretary of Justice, seeking a reversal of the panel's resolution.

On May 29, 2017, in an 18-page review resolution signed by Undersecretary Reynante Orceo, the DOJ downgraded the charges to homicide on grounds that "[t]he evidence on record do not support the allegation of evident premeditation."

The Provincial Prosecutor's Office of Leyte was directed to amend the information, a motion subsequently granted by the court.

ABSENCE OF EVIDENT PREMEDITATION

Aguirre stands by the DOJ review resolution, as he explained that his statement on Nov. 23, 2016 during a Senate inquiry into the Espinosa slay case finding "premeditation" on the part of the
policemen was not yet based on the presence of all the facts of the case, and made in the absence of sworn affidavits in their defense.

"We have to stand by the [review] resolution of my department and we have to presume regularity in the performance of our duties," Aguirre said.

He added that the senators' questions were "leading" and he had to "go" with it.

Aguirre explained that for homicide to be upgraded to murder, there should be "evident premeditation."

"People are confusing evident premeditation with conspiracy; they think that when there is already conspiracy there is already evident premeditation… [in this case] it was very hard to conclude that there
was evident premeditation," he said.

Even if there was conspiracy among the policemen because of a "unity of purpose" in their actions, there was no showing of evident premeditation, Aguirre stressed.

The DOJ review resolution explained "[p]roof of conspiracy does not imply the existence of evident premeditation."

"The rule is that evident premeditation may not be taken into account where, as here, conspiracy is not based on direct proof but is inferred from the acts of the accused in the perpetration of the crime," the review resolution read.

According to the Supreme Court (SC), in the case of People of the Philippines vs. Davido, the following are the requirements to prove evident premeditation:

- the time when the offender determined to commit the crime;
- an act manifestly indicating that the culprit has clung to his/her
determination; and
- sufficient lapse of time between the determination and execution
to allow him/her to reflect upon the consequences of his/her act.

The SC further explained that "[t]he premeditation to kill must be plain and notorious; it must be sufficiently proven by evidence of outward acts showing the intent to kill," adding that “a qualifying circumstance such as evident premeditation must be proven as clearly as the crime itself."

The DOJ review resolution stressed that these evidence can best be threshed out "only in a full-blown trial."

NO FLIP-FLOPPING

Aguirre said the DOJ cannot be accused of flip-flopping in reversing the earlier ruling of its panel of prosecutors on the murder charge, stressing that the department's review mechanism allows a
reconsideration of rulings on appeal.

"The [review resolution] is just one of the processes sa amin sa DOJ. Sinasabi nila may flip-flopping diyan, there's no such thing as flip-flopping here. May appeal lang diyan, so it is following a process
that is the procedure in the DOJ," Aguirre said.

Complainant NBI or private complainant Kerwin Espinosa, son of the late mayor, who later joined the NBI complaint, may file a motion for reconsideration on the review resolution with the DOJ, or Espinosa may file his motion for reconsideration with the Baybay RTC, Aguirre added.