The Private Prosecutor

MANILA, PhilippinesAs a private attorney in the Philippines, Nena Santos does not have standing to try a murder case. But under an unusual provision of Philippine criminal law, she is permitted to work directly with police and government prosecutors in all phases of the investigation and trial: gathering evidence, preparing witnesses, and drafting potential indictments. Her work, even government prosecutors acknowledge, helped lead to the conviction of the three men who killed Marlene Garcia-Esperat.

“Cases do not get to the courts without private prosecutors,” said Melinda de Jesus, executive director of the Manila-based Center for Media Freedom and Responsibility.

“To see a case move, however painfully slow, helps keep it in the media, boosts the morale of the [victim’s] family, and serves as a rallying point,” added Weng Paraan, secretary-general of the National Union of Journalists of the Philippines.

Both groups, along with a press consortium called the Freedom Fund for Filipino Journalists, have provided financial and other support to private prosecutors such as Santos. The attorneys generally offer their services pro bono, but there are related costs such as security and witness relocation.

Private lawyers have had recent success in obtaining changes in venue–an especially important tactic in the Philippines, where local power brokers have nearly unchecked clout. Witnesses are threatened; local judges and prosecutors are bribed. The successful prosecutions in the Garcia-Esperat case–and in the 2000 murder of radio broadcaster Edgar Damalerio, another case aided by a private lawyer–came only after the proceedings were moved to neutral locations.

Preparing court documents is the most direct way the private prosecutor can assist. Santos, for example, prepared a recent petition asking top Justice Department officials to file murder charges against the two people accused of ordering the Garcia-Esperat murder. “Nena has been very helpful,” noted one government prosecutor, who asked not be identified because of his ongoing role in the case. “She has access to the police and the relatives of the deceased. She is also a spokesperson for the prosecution.”

Santos has worked diligently to keep the case in the media, alerting national and international press groups to developments. The international attention–including pressure from groups such as CPJ–has spurred the government of President Gloria Macapagal-Arroyo to take concrete steps of its own. In 2004, Arroyo created a police task force to investigate the killings of journalists and political activists. More recently, her government authorized 1.5 million pesos (US$32,000) for the protection of witnesses in journalist murder cases.

Santos and others see the Garcia-Esperat case as a potential tipping point. The techniques used to obtain convictions could be emulated in other cases. Press groups in the Philippines have identified at least four new cases in which they believe private attorneys could make a difference.

Joel Simon is CPJ’s executive director.