A candidate for provincial board member who was charged for murder questioned the “unusual actuations” of city prosecutors and a Regional Trial Court (RTC) judge to prosecute the case and the alleged haste in the issuance of the arrest warrant. “Wanted posters” are being scattered in public places in the city and nearby towns showing the face of businessman-candidate Eduardo “Boy” Enerio announcing a P200,000 reward for information leading to his capture. Enerio's counsels said their client was being treated like a notorious criminal purportedly brought about by the “extraordinary haste and interest” of the judiciary on the case without affording their client the right to due process. Even before the counsels of Enerio could file a Motion for Reconsideration on a resolution promulgated by the City Prosecution Office indicting him of murder, the information charging him of the crime was already filed at the Tagbilaran RTC. Enerio's lead counsel, lawyer Alexander Lim of Trabajo-Lim Law Office, immediately filed a Motion for Judicial Determination of Probable Cause and for holding in abeyance the issuance of a warrant of arrest, to protect his rights considering that he was charged with a non-bailable crime.

The resolution, dated February 18, 2010 was received by Enerio and his lawyers in the afternoon of March 4, 2010 . In the Department of Justice manual for prosecutors, it is specified that the respondent has 10 days from receipt of the resolution to file a motion for reconsideration, which is still until March 14, 2010. However, when Enerio's counsels received a copy of the resolution, they learned that that the City Prosecution Office already filed the case in court on March 5, 2010 , a day after the respondent received a copy of said Resolution. This, despite an earlier Motion to Hold in Abeyance the Filing of Information pending resolution of the Motion for Reconsideration. The RTC Multiple Sala proceeded in holding a raffle of the case which was assigned to Branch 47 under Judge Suceso Arcamo. A Motion for Judicial Determination of Probable Cause and for Holding in Abeyance the Issuance of a Warrant of Arrest has been filed by respondent's counsels. However, Judge Arcamo denied the said motion and then issued an Order for the arrest of Enerio.

The respondent's counsels likewise noted that the Arrest Warrant was issued last Tuesday, just one working day before the Holy Week break. Enerio, in a statement sent to reporters yesterday, said he was just asking to be given an opportunity in court to prove that he did not commit the crime of murder. A Motion for Reconsideration is an essential part of due process, a right enshrined in the country's laws and Constitution. “Precipitate filing of the Information without according respondent the opportunity to file his Motion for Reconsideration and before resolution of the same violates the right to due process.” The counsels of Enerio said their client has no intention to evade arrest and abandon his defense but wants all legal remedies to be exhausted in proving he should not be charged with murder.

DUE PROCESS

The motion to hold in abeyance the filing of the Information until after Respondent's Motion for Reconsideration is resolved, prayed that in view of the gravity of the offense, it is with more reason that the City Prosecution Office act judiciously and with utmost consideration and respect of the rights of the Respondent, and in strict adherence to the Rules. It added, that it is therefore incumbent upon the Honorable Investigating Prosecutor and this Honorable Office to provide, respect and protect Respondent's right to due process. However, without acting on the filed Motion, and for reasons that puzzled the accused's counsel, city prosecutor's filed the Information for Murder in court March 5, 2010 , Friday. With the noted haste and interest of the prosecutors to file a Murder charge in court, respondent's lawyer filed before the City Prosecutor's Office, together with the Motion for Reconsideration, a joint Motion for Inhibition for the City Prosecutor, to afford the accused a fair re-evaluation of the complaint. The City Prosecutor's Office of Tagbilaran City issued an order inhibiting from resolving the motion for reconsideration and forwarded the records to the Regional State Prosecutor's Office in Cebu City but until March 31, the records has not been received.

JUDICIAL DETERMINATION

In the Motion for Judicial Determination of Probable Cause, Enerio's lawyer said the Investigating Prosecutor's finding of probable cause for the charge of the capital offense of Murder against Accused has no factual and legal basis. In the complaint, there is no allegation of murder, and neither in the supporting affidavits of their witnesses, on how the crime was committed. That even more important to note is the glaring absence in the same complaint and supporting affidavits of the circumstances that would qualify the killing for Murder. For Murder to occur, the killing of the victim must be attended with or by circumstances like treachery, or taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense of the victim, or of means or persons to insure or accord impunity, or that the killing was in consideration of a price, reward or promise, under Numbers 1 and 2 of Article 248 of the Revised Penal Code, or with evident premeditation, or with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging, or scoffing at his person or corpse as provided under Numbers 5 and 6 of the same Article among others;

None of the above enumerated qualifying circumstances for Murder as above cited is present even in the narrations by the prosecution witnesses in the respective affidavits; and Accused' admission of killing does not in anyway qualify the killing for murder, respondent's lawyer said. Accused Enerio's counsel said he has a valid defense to prove that there is absolutely no probable cause for the crime of murder filed against his client. That under the circumstances, a hearing for the determination of probable cause is necessary and issuance of the Warrant of Arrest be held in abeyance pending said judicial determination. Enerio further prayed that considering that the crime charged is a capital offense, it is with more reason that his rights be promoted, respected and protected by the Honorable Court where the City Prosecutor's Office has miserably failed and/or suspiciously refused to do so.