In a Resolution released yesterday, 17 March 2014, a Panel of National Prosecution Service (NPS) Prosecutors found probable cause to charge eight (8) officials and personnel of the Philippine Coast Guard (PCG) in connection with the death of a Taiwanese fisherman, Hong Shi Cheng, more than ten (10) months ago.
It may be recalled that the boat on which Hong was aboard at the time, the Guang Da Xing No. 28, was fired upon by members of the PCG on board the MCS-3001, a patrol boat belonging to the Bureau of Fisheries and Aquatic Resources (BFAR). The said incident, which took place last 9 May 2013, has been dubbed as the so-called "Balintang Channel Incident" and has been the subject of a comprehensive and in-depth investigation by the National Bureau of Investigation upon the instructions of the President.
In said Resolution, the NPS held that there exists probable cause to charge the following individuals for Homicide under Article 249 of the Revised Penal Code (RPC):
1. Commanding Officer ARNOLD ENRIQUEZ DELA CRUZ;
2. Seaman 1st Class (SN1) EDRANDO QUIAPO AGUILA;
3. Seaman 1st Class (SN1) MHELVIN AGUILAR BENDO II;
4. Seaman 1st Class (SN1) ANDY GIBB RONARIO GOLFO;
5. Seaman 1st Class (SM) SUNNY GALANG MASANGCAY;
6. Seaman 1st Class (SN1) HENRY BACO SOLOMON;
7. Seaman 2nd Class (SN2) NICKY RENOLD D. AURELLO; and
S. Petty Officer 2 RICHARD FERNANDEZ CORPUZ.
In so holding, the Panel found, among others, that "the respondents all acted in unison with the common purpose of firing at the Guang Da Xing No. 28 to force it to submit to MCS-3001's inspection or else." It went on to state that "conspiracy was established by the NBI when it presented the fact that orders were given and the orders were obeyed and efficiently implemented with fatal consequences. That they all acted with that common purpose is crystal clear. When there is conspiracy, the act of one is the act of all."
In order to reach the conclusion that filing of charges is in order, the NPS also disposed of the claims of justifying circumstances proffered by the Respondents on two (2) separate grounds, i.e., Self-Defense and Fulfillment or Performance of Lawful Duty. In not giving credence to such claims, the NPS emphasized that the burden of proving such defenses rested with the respondents who invoke it.
In this case, the NPS found no evidence to indicate or prove that the Taiwanese boat posed an imminent or grave danger to the Respondents before and during the pursuit. "Absent clear evidence of such, the argument of self-defense cannot prosper in this preliminary investigation where probable cause is all that is needed for the filing of an information in court: The argument of self-defense is thus better left threshed out in the trial and determined by the trial court after a full-blown hearing." As to the claim of fulfillment or performance of lawful duty, the NPS held that being a hostile vessel per se does not authorize the use of deadly force under the PCG Rules of Engagement (ROE). Even if it conceded that, at the first instance, MCS-3001 may have been regularly performing its duties at the Balintang Channel, at some later point, the successive firing at the Guang Da Xing No. 28, when there was no imminent and grave danger to MCS- 3001 and when other less extreme means could have first been undertaken, exceeded the performance of lawful duty. Citing jurisprudence, the Panel stated that a law enforcer is "never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise".
Despite its ruling, the NPS was quick to point out that:
"... [T]his resolution to prosecute the respondents for homicide should not be construed as carte blanche for Taiwanese fishermen to illegally enter and poach within the Philippines territorial waters with impunity. The Taiwanese law enforcement and prosecutorial authorities should not take this to mean as res judicata or unbending precedent for future incidents involving Philippine monitoring, control and surveillance operations in the Balintang Channel. More importantly, this resolution should not weaken the resolve of the rest of the professional Coast Guard men who are doing their mighty best, despite limited resources, to carry on and strictly enforce Philippine criminal laws within Philippine territory in accordance with established rules of engagement. This homicide case arose from a very peculiar set of facts and our findings are surely pro hac vice only."
Besides the charge of Homicide, the Panel also found probable cause to charge Commanding Officer DELA CRuz and Seaman 1st Class (SN1) BENDO for Obstruction of Justice under Section 1 of Presidential Decree No. 1829, for the preparation and submission of falsified Monthly Gunner Report dated 11 May 2013.
On the other hand, it dismissed the other charge of Obstruction of Justice against Commanding Officer DELA CRUZ, Lieutenant Junior Grade (LTJG) MARTIN LARIN BERNABE, SN1 RAMIREZ, and SN1 BENDO, in connection with the deletion of video clips from the SD Cards and Compact Discs submitted to the NBI. It held that the accidental nature of the deletion of some of the files was plausibly explained by respondents; hence, the intent to impair the verity, authenticity, legibility, availability or admissibility as evidence of such record has not been proven.
The Information for Homicide will be filed with the Regional Trial Court of Batanes, while the Information for Obstruction of Justice will be filed before the Municipal Trial Court of Cagayan.