[] Ombudsman’s legal, extremely thin distinction between “intent to commit a crime” from “intent to perpetrate the act” may surprise the lawyer, confound the non-lawyer
[] The former city mayor and his lawyer Amando Virgil Ligutan elated over timing of decision, as both Tomas Osmeña and Royina Garma, the police chief who filed the charges, were summoned by the House to testify.
[] Timing of acquittal sets off intrigue, conspiracy theory.
THE Ombudsman’s total reversal of its own decision, publicized last September 19, 2024, tops seven takeaways from the news of Tomas Osmeña’s most recent legal victory.
[1] THE RULINGS: FIRST AND SECOND. In the February 28, 2024 resolution of the Ombudsman, which ordered Tomas de la Rama Osmeña (TRO) to pay a fine the equivalent of a one-year salary when he was Cebu City mayor, the anti-graft agency found probable cause to indict Osmeña for obstruction of justice and grave misconduct.
Last September 19, 2024, news media reported that the Ombudsman released its order that dismissed the charges of obstruction of justice and misconduct filed against Osmeña by Royina Garma, who was Cebu City’s police chief for one year.
It was a total reversal, a 360-degree turnaround. First to pop up in the perceptive news consumer’s mind is “What happened, why?”
That is largely answered by the decision, a six-page order submitted July 10, 2024 by Assistant Special Prosecutor III Lyn Dimayuga, recommended for approval by Assistant Ombudsman Pilarita Lapitan, approved on September 4 by Deputy Ombudsman Jose Balmeo Jr. and Ombudsman Samuel Martires. The Ombudsman office released copies September 6. And news media publicized the order on September 19.
[2] WHAT OMBUDSMAN FIRST FOUND. In its February 28 joint resolution, which ordered TRO to pay a one-year fine, the equivalent of a one-year suspension, the Ombudsman said there was “probable cause to indict” Osmeña for obstruction of justice and “substantial evidence to hold him liable” for grave misconduct.
Indeed, the Ombudsman’s February resolution said so.
But that turned out to be an erroneous finding because this September, the Ombudsman released an order clearing TRO of obstruction to justice and declaring “no substantial evidence” of grave misconduct, the charges Garma had filed.
Look again at the core of the February resolution: The Ombudsman found that Osmeña ordered the release of detainees without any court order. “It was highly un-procedural and illegal,” it said, “establishing probable cause to indict him for obstruction to justice.”
The Ombudsman declared that Osmeña — despite being told that the detainees couldn’t be released without the station commander’s approval and a court order -- “insisted on taking custody of the detainees” and told them to go home. That, the Ombudsman ruled, provided “substantial evidence to hold him liable for grave misconduct.”
[3] “ASSIDUOUS REVIEW’ CHANGED IT ALL. The Ombudsman reversal of its finding and conclusion came, as the September order itself says, “after an assiduous review of the records,” which does not reflect well on its earlier handling of the case.
The turnaround may tell the public that the Ombudsman didn’t show “great care and perseverance” in its first finding of (a) “probable cause” that Osmeña obstructed justice and (b) “substantial evidence” that he committed grave misconduct.
Apparently, no new fact surfaced to make the Ombudsman change its conclusion. The facts were the same: TRO in August 2018 ordered the release of three persons arrested by the police for alleged illegal sale of butane canisters containing LPG or liquefied petroleum gas. They were freed without a court order or approval of the station commander from the Parian police station.
It’s the appreciation or evaluation of the facts that obviously changed. In its September ruling, the Ombudsman no longer saw it as violation of procedure but, adopting TRO’s counter argument, was on “a rescue mission” and doing his job as mayor.
And, yes, the Ombudsman in its order clearing TRO made a fine distinction in the law, which many people, especially non-lawyers, may see as obscure legalese and tough to “get.”
[4] ‘INTENT TO COMMIT’ THE CRIME, FROM ‘INTENT TO PERPETRATE’ THE ACT. Hey, is “committing the crime” different from “perpetrating the act”? It would seem so, to legal minds. In pointing at the reason for throwing out the charges, the Ombudsman distinguished the two kinds of intent.
Generally, the Ombudsman said, the prosecution didn’t need to prove that TRO intended to commit the crime because obstruction to justice was “malum prohibitum.” Which means, in a standard definition, the forbidden act is punished not because it is inherently immoral -- it may or may not be — but because the law says it is forbidden, the sole issue being whether the law has been violated.
But the Ombudsman order ruled, citing People vs Lacerna, it’s required that “the prohibited act was done by the accused intentionally.”
Does that mean there must be proof that Osmeña intended to do what he did?
Some people may not believe that TRO was not in his senses when he interceded, or ordered, the detainees’ release. It may be hard for simple folk to believe that, say, Osmeña had a blank mind or was sleepwalking when he did it.
[5] WAIT, HERE’S WHAT OMBUDSMAN MEANT. Ombudsman’s September order explains it thus: TRO knew that the three detainees were arrested for violation of a penal law and he took custody of them, ordering them to go home.
But that action wasn’t enough to make Osmeña liable. The Ombudsman said, “It must also be established that he had the “volition or intent” to facilitate their escape for the purpose of pinning him under the obstruction of justice charge. The complainant “miserably failed to do” that, the ruling said.
The non-legal mind may ask, So the intent to facilitate the detainees’ escape -- or violate the law or commit a crime -- must be proved. Or, using again the legal jargon: The intent to commit the crime must be proved, not just the intent to perpetrate the act.
After all, the non-requirement of criminal intent in a “malumprohibitum” violation is in effect not followed in the Osmeña case.
Presidential Decree #1829, the Ombudsman order noted, punishes obstruction of justice when it is committed “for the purpose of obstructing, impeding, frustrating or delaying the successful investigation and prosecution of criminal cases.”
In other words, mere violation, or just perpetrating the act, is not enough. There must be intent to commit the crime. Or so the Ombudsman now says. Police units may have to be re-educated for future cases in which mayors will meddle, or be seen to intervene, in arrests of their supporters or friends.
[6] SAME REASON ON GRAVE MISCONDUCT RAP. “It is clear,” the Ombudsman said -- citing the same argument in the requirement of intent to commit the crime of obstruction to justice -- the “elements of corruption, clear intent to violate the law or flagrant disregard of an established rule” were not present in the cases against TRO.
[7] TIMING OF THE DECISION. TRO also included a motion to dismiss for violation of his right to a speedy trial, citing failure to dispose of the case after more than five years and eight months. The Ombudsman’s September order didn’t tackle that but it granted the partial motion for reconsideration, which in sum dumped Garma’s criminal and administrative charges against TRO.
But the dismissal of the charges came on the same day Osmeña testified before the House Quad Committee hearing on extrajudicial murders related to former President Rodrigo Duterte’s war on illegal drugs was “perfect timing!” -- or so Politilo.com exclaimed in its September 20 headline.
TRO’s top counsel, Atty. Amando Virgil Ligutan, told me he was “elated” over the legal triumph his client got, just when Osmeña was about to rake complainant Garma over coals at the House hearing.
Yet the incident sparked suspicion and a conspiracy theory as well: that Osmeña was allegedly being used by “dark forces” in the administration to boost evidence against Duterte in his campaign against illegal drugs and the lives it had cost, with Garma, a “close and special” person to the then president, as the unwilling prop.