Court urged: Revoke Kapunan’s bail

Emphasizing that the evidence of guilt against the accused was strong, prosecutors in the Olalia-Alay-Ay double-murder case have asked a court to reconsider its decision allowing Eduardo “Red” Kapunan Jr., a retired military colonel and member of the Reform the Armed Forces Movement (RAM), to post bail.

In a motion for reconsideration filed last week and concurred in by government prosecutors, private lawyers also asked Antipolo Regional Trial Court Judge Ma. Consejo Gengos-Ignalaga of Branch 98 to order the immediate rearrest of Kapunan who left the custody of the National Bureau of Investigation a day after his petition for bail was approved.

The court had said in its Oct. 18 decision that “there was no clear evidence” that the former high-ranking military official directly ordered the abduction and killing in 1986 of labor leader Rolando Olalia and his driver, Leonor Alay-Ay.

Although a prosecution witness, Medardo Barreto, then a team leader in the Department of Defense’s Special Operations Group (SOG) with Kapunan as commanding officer, had said during the bail hearings that Kapunan had instructed him to assist Sgt. Edger Sumido, another SOG team leader, “in an operation,” the court said that “it was not specifically mentioned that the operation was against…Olalia.”

Two other accused—Sergeants Dennis Jabatan and Desiderio Perez—were not allowed to post bail as the court noted that witnesses had placed them at the crime scene.

In their petition asking the court to revoke its order allowing Kapunan to post bail, prosecutors said they had established that there was a conspiracy among the accused. They also claimed that based on circumstantial evidence, the evidence of guilt against the former military official was strong.

They cited several cases, including that of People v Antonio Abes, which said that “conspiracy need not be proved by direct evidence [but may] be inferred from the conduct of the accused before, during and after the commission of the felony, showing they had acted with a common purpose of design.”

They also pointed out that Kapunan had asked for funds so that a vehicle used in the operation against Olalia could be repainted another color. He also met with the group’s members in Camp Aguinaldo, a sign that there was conspiracy since they had “acted with a common purpose and design,” the prosecutors added.

At the same time, they said the court “missed considering the existence of circumstantial evidence [which was] not only sufficient to prove that the evidence of guilt of the accused [was] strong, but also sufficient for the conviction of the accused.”

The circumstantial evidence included, among others, Kapunan’s order that Olalia be placed under surveillance which the accused himself admitted in court, they stressed.

The prosecutors also said that the court “seriously erred” in its “selective appreciation of the testimony” of prosecution witnesses.

They noted that while the court found the testimonies of prosecution witnesses against Perez and Jabatan credible, it “disregarded the testimony of Barreto as to the culpability of (Kapunan).”

According to them, Barreto had testified that Kapunan was among several superiors who had ordered the murder of Olalia and Alay-Ay.

The prosecution also cited the “unequivocal findings” of a DOJ investigating panel in 1998 that said the “series of acts done and participated [in] by the accused in pursuance of a common unlawful objective” constituted conspiracy.

“In sum, the evidence of accused Kapunan’s guilt is patently strong not only to establish probable cause, not only to deny bail but certainly also to convict him,” they said.

The killing of Olalia and Alay-Ay were supposedly a prelude to “God Save the Queen,” a coup plot hatched by RAM against the Cory Aquino government.