Quezon City judge acquits 3 suspected foreign terrorists

MANILA, Philippines — Saying their arrest nine years ago was unlawful and the evidence against them obtained illegally, a Quezon City judge acquitted on Monday two Indonesians and a Malaysian suspected of being members of the Southeast Asian terrorists group Jemaah Islamiyah.

Nonetheless, Judge Eleuterio Bathan of Branch 92 of the Quezon City Regional Trial Court, directed the Bureau of Immigration to initiate deportation proceedings against Indonesians  Mohammad Nasir Hamid and Mohammed Yusop Karin Faiz and Malaysian Ted Yolanda, who were undocumented aliens.

The three, along with a Filipino companion, were arrested on Dec. 12, 2004 as they disembarked from a ship at the port of Zamboanga City. Allegedly seized from them were one-fourth kilo of TNT or trinitrotoluene, five meters of yellow illegal possession of explosives and firearms  that the police believed were intended for terror bombings in Mindanao.

The foreigners’ Filipino co-accused, Muhajir de la Merced, who was tagged as an Abu Sayyaf special operations group member, jumped bail before he could be arraigned with the three on March 11, 2008, prompting the judge to have the case against him archived until after his arrest.

In acquitting the three foreigners, the judge noted that members of the Police Regional Intelligence Division in the Zamboanga testified during the trial that they would have arrested the four men with or without evidence based on prior “reliable information from their confidential agent” that four members of the JI would be disembarking from a ship docked at the Zamboanga City port at around 4 p.m. on Dec. 12, 2004. The confidential agent had said that the men had come from Tawi-Tawi.

The judge ruled that the arrest was not the result of a lawful search and that there was no valid search incidental to a lawful arrest. He also found that there was clearly no valid warrantless arrest.

He observed that one of the policemen had said of the four accused, “Talagang huhulihin kahit walang dala (They would really will be arrested even if they did not have anything on them).”

“Had it not [been] for the reason they were tipped [off]by a confidential agent they (RID men) would not be there,” the judge said in his 35-page ruling. “Despite the span of time available for them to apply for a search warrant and that they could have persuaded a judge that there is probable cause indeed to justify the issuance of a warrant, the prosecution witnesses (policemen) did nothing.”

“The prosecution witnesses’ inaction to comply with the law invalidated a warrantless search on the ground that they had sufficient time to secure the necessary search warrant,” the judge said, adding that there was also no manifestation that the accused had just committed or were about to commit or were in the process of committing a crime to warrant arrest even without a lawful cort order.

He noted that what the policemen found suspicious was that one of the accused had a “bulky waist,” which did not constitute probable cause to frisk him. “Probable cause was more imagined than real in this case,” he said, adding that “Reliable information as basis of probable cause to effect an arrest is not sufficient to justify an in flagrante delicto (caught in the act) arrest.”

“The government’s drive against terrorism and possessed or owned illegal firearms needs the support of every citizen but they should not undermine the fundamental rights of every citizen as enshrined in the Constitution. The constitutional guarantee against warrantless arrests and unreasonable searches and seizures cannot be so carelessly disregarded as overzealous police officers are sometimes wont to do,” Bathan said.

He added: “While this court appreciates and encourages the efforts of law enforcers to uphold the law and preserve the peace and security of society, we nevertheless admonish them to act with deliberate care within the parameters set by the Constitution and the law. Truly the end never justifies the means.”

Bathan also observed discrepancies in the testimonies of the prosecution witnesses which left the court in doubt if they were telling the truth. He particularly cited the different testimonies of three prosecution witnesses on the age bracket describing the alleged members of the JI whom they were supposed to arrest. It was doubtful, he noted, considering that they had a single source of information.

He concluded that since the evidence seized from the accused was inadmissible being considered “fruits of a poisonous tree” within the protection of the constitutional guarantee against unlawful arrests and unreasonable searches and seizures, and cast reasonable doubt on their guilt, he acquitted the accused.

Apart from directing the BI head and his agents to make the appropriate actions against the three men, who are not valid passport holders, he ordered that the items allegedly taken from them be confiscated in favor of the government.

The judge ordered that all three men be released from detention at the Special Intensive Care Area of the Metro Manila District Jail in Camp Bagong Diwa.