The Philippine Court of Appeals denied on 15 October 2008 the petition for certiorari and prohibition filed by the alleged masterminds to stop the re-investigation of, and the filing of charges on the 2005 killing of journalist Marlene Esperat.
In a 17-page decision penned by Associate Justice Bienvenido Reyes, the Manila Court of Appeals Special Eighth Division denied the 19 November 2007 petition by Osmeña Montañer and Estrella Sabay, alleged masterminds in the killing of Esperat, asking the court to enjoin the state prosecutor and the Department of Justice from re-investigating the case and re-filing charges.
"It is legally permissible for public respondents to re-open the preliminary investigation," the appellate court said. "...(T)he complainants may present new or additional evidence which could alter the result of the earlier finding of no probable cause and accordingly ask for an reinvestigation or a reopening of preliminary investigation."
The court also ruled that the prior withdrawal of the charges against them at the Tacurong City RTC did not prejudice the re-filing of charges. "Such dismissal merely relieved the petitioners from imprisonment or from being held on bail and not to acquit them of the crime charged."
It added that "(t)here is no statement in the order of dismissal of RTC Tacurong City (dated 31 August 2005) that the dismissal was with prejudice. A dismissal order is generally deemed to be without prejudice to the filing of another action... The only instance when dismissal of an action is with prejudice is, when the order itself so states."
The appellate court also denied the Montañer and Sabay motion to "implead the Regional Trial Court of Tacurong City, Sultan Kudarat; Cotabato City; or any other court as nominal party."
Private prosecutor Nena Santos said the Manila Court of Appeals decision would be "a big help" in the prosecution of Montañer and Sabay in Tacurong City. On 20 October 2008, the prosecution refiled murder charges against Montañer and Sabay before the Tacurong City RTC Branch 20 of Judge Melanio S. Guerrero. Guerrero issued on 21 October 2008 warrants of arrest against the two.
"That will be helpful in the case filed in Tacurong City since the Court of Appeals declared that the former dismissal (of the charges against them) does not prejudice refilling the case," Santos said in Filipino. She added that the Court of Appeals also answered the questions posed by the motion to quash filed by Montañer and Sabay on 21 October 2008 at Tacurong City RTC Branch 20.
Esperat was killed on 24 March 2005 by unknown assailants inside her home and in full view of her children in Tacurong City. She was known for her exposes on alleged corrupt activities in the regional office of the Department of Agriculture where Montañer and Sabay work.
Out of the 37 cases of journalists killed in the line of duty since 2001 in the Philippines, only in two cases have the assassins and their accomplices been convicted. No alleged masterminds in the killing of journalists have been successfully prosecuted. The prosecution of Montañer and Sabay would be the first.
