In a 3 January 2012 resolution, the Manila CA’s former 16^th Division denied the 31 August 2011 motion for reconsideration filed by former Mamasapano town, Maguindanao mayor Akmad “Tato” Ampatuan Sr. seeking the reversal of the 18 August 2011 decision affirming his inclusion in the list of accused in the Ampatuan multiple murder case.  (The Freedom Fund for Filipino Journalists, Inc. [FFFJ] received a copy of the decision on 18 January 2012. CMFR is the secretariat of FFFJ.)

“Finding no new matter of substance which would warrant the modification much less the reversal of the assailed Decision, petitioner’s Motion for Reconsideration is hereby DENIED for lack of merit (emphasis not supplied),” said the decision penned by Associate Justice Francisco Acosta. The other members of the Division are Associate Justices  Vicente Velasco and Angelita Gacutan.

Tato Ampatuan filed a Motion for Reconsideration last 31 August 2011 after the appellate court denied his petition for certiorari against former Acting Justice Sec. Alberto Agra and families of the victims in the 23 November 2009 Massacre. Tato Ampatuan alleged that Agra acted with grave abuse of discretion when he ordered his re-inclusion in the list of accused in the multiple murder case.

The Manila CA in its 18 August 2011 decision said “no reversible error (was) committed by the public respondents in finding probable cause to indict the petitioner for multiple murder.” (as qtd. in an Inquirer report, http://newsinfo.inquirer.net/44071/appeals-court-won%E2%80%99t-let-suspect-off-the-hook)

Tato Ampatuan is among the 196 persons charged with 57 counts of murder for allegedly planning and executing the killing of 58 persons including 32 journalists and media workers in Ampatuan town, Maguindanao on 23 November 2009. Almost two years have passed since the Massacre trial started but, as of press time, only 64 of the 196 alleged perpetrators have been arraigned. Of the 64, only two are members of the Ampatuan clan.

Some developments in the trials of the alleged killers of journalists tend to suggest the continuing dominance of the culture of impunity. These have been disturbing enough to be a major concern among press freedom advocates and human rights activists.

Philippine-based media organizations have been discussing possible institutional reforms in the criminal justice system with government officials. But despite former President Gloria Macapagal Arroyo and President Benigno Aquino III’s successive pledges to speed up the resolution of the Ampatuan Massacre case, the government has so far failed to craft a concrete policy plan on ending impunity.

Minimal progress

The court hearings on the most brutal attack on the Philippine press and democracy in history have been proceeding at a glacial pace. The victims’ relatives, media experts, and press freedom advocates are bristling at the slow progress of the trial of the alleged perpetrators of the Ampatuan Massacre two full years after it occurred on Nov. 23, 2009.

The thrice-a-week hearings on the Ampatuan Massacre case are held more regularly compared with other cases—some are heard only twice a year—but the trial has been hampered for almost two years by the need to give due course to at least 48 bail applications already filed by some of the suspects.

The hearings on suspect Andal “Unsay” Ampatuan Jr.’s bail petition started Jan. 5, 2010. The hearings were supposed to end sometime in January 2011, but his lawyers petitioned for a chance to present rebuttal evidence against the prosecution’s evidence and witnesses. How long the rebuttal will take is everyone’s guess.

The prosecution has already presented about 70 witnesses for the bail proceedings of Unsay and other accused. But it will have to present other witnesses if bail applications are filed by the remaining detained accused persons. (Ninety-six of 196 accused are in custody.)

Delays, delays, delays

Lawyer Josefina Guzman of the Supreme Court Public Information Office said that delays in court proceedings are due to lack of resources and the current procedures and state of the courts. “Existing courts are handling more than their ideal number of cases,” Guzman, who represented Court Administrator Midas Marquez, told members of the press and civil society during a Nov. 15 roundtable discussion on impunity. She pointed out that the judiciary lacks the budget for additional manpower, leading to clogged dockets.

The Nov. 15 roundtable discussion was part of the activities in the run up to the International Day to End Impunity organized by the Center for Media Freedom and Responsibility and the Freedom Fund for Filipino Journalists. Representatives from the judiciary, the police and the Justice department attended the dialogue and shared information on the institutional reforms their respective agencies have supposedly undertaken in response to the call to end political and media killings in the country.

A solution the Supreme Court has proposed is the creation of new courts. However, the Supreme Court has no power to do so; only the legislative branch has that power. While waiting for Congress to support the creation of additional courts, Guzman said the Supreme Court has appointed what it calls “pairing judges” to “help presiding judges with the resolution of cases.” It is also testing a new court monitoring method to “answer the problem of court decongestion and delays in the resolution of cases,” said Guzman.

Guzman added that the Supreme Court is studying possible reforms in “procedural safeguards” that have caused delays.

Reforms needed

Representatives of the Philippine National Police (PNP) and the Department of Justice (DOJ) have echoed the need for institutional reforms to end impunity.

Police Chief Supt. Ricardo Marquez of the Directorate for Investigation and Detective Management said the government needs to review the system of appointing provincial and city chiefs where local executives (mayors and governors) control who can be appointed.

The PNP also suggested a review of the National Prosecution Service which currently does not allow prosecutors to help in case investigation and build-up. It has also noted the need to strengthen laws on witness protection, gun ownership and even motorcycle acquisition (most of the killings in the Philippines have been committed by motorcycle-riding gunmen).

Marquez also said the PNP also recognizes the weaknesses of police crime investigation methods. He said almost 75 percent of their investigators do not have the expertise and training in evidence-gathering and case build-up. The PNP has put up an in-house training school for its investigators and officers and is in the process of modernizing its crime laboratories.

On the part of the DOJ, said Justice Usec. Leah Armamento, Sec. Leila de Lima has revamped the DOJ’s case assignment system to speed up preliminary investigations. De Lima has delegated to her undersecretaries oversight on the prosecution of political killings and other cases. For example, USec. Francisco Baraan has assumed Task Force 211 duties on extrajudicial and journalists’ killings.

De Lima has also formed a Criminal Code Committee (CCC) to review the Philippines 76-year old Revised Penal Code and to “draft an organic, Filipino and modem criminal code that consolidates and harmonizes the penal laws for the effective, efficient and economical administration of criminal justice.”

Needed: a ‘clearer’ plan

However, journalists and press freedom advocates say that Aquino still needs to devise a concrete plan to combat impunity. The need for a “clearer” action plan was recognized by Presidential Communications Operations Office ASec. for Legal Affairs Lesley Jeanne Cordero during the Nov. 15 roundtable.

“We need to address the disconnect between policies and operations in the field…Until and unless we have a clearer action plan we can’t address the culture of impunity,” said Cordero.

Joint statement of the Freedom Fund for Filipino Journalists Inc. and the National Union of Journalists of the Philippines on the Expiry of the Freeze Order on the Assets of the Ampatuans

2 December 2011

_______________________________________________________________________________________

TODAY, December 2, 2011, the six-month freeze order the Court of Appeals issued – on petition of the Anti-Money Laundering Council  (AMLC) – on the 597 bank accounts, 142 firearms, 132 motor vehicles, and 113 houses and lots in the names of 27 members of  the Ampatuan clan and their associates expired.

We have also learned that it was only yesterday, December 1, when the AMLC filed through the Office of the Solicitor General, a petition for civil forfeiture with a prayer for a new freeze order with the Manila regional trial court. As of the close of office hours, we have not received confirmation from the OSG, the AMLC, or the trial court if the freeze order, or provisional asset protection order (PAPO), had been issued.

We view with great alarm the unwarranted delay and apparent lack of attention and negligence that the AMLC and the OSG had accorded this case.

A week ahead of today’s expiry of the appellate court’s freeze order, we  called government attention to this grave matter – the possibility that the Ampatuans could take advantage of the delay to retake control of their enormous unexplained wealth to put pressure to bear on their trial for the Maguindanao massacre of Nov. 23, 2009, which claimed the lives of 58 persons, including 32 media workers.

The Freedom Fund for Filipino Journalists, Inc. (FFFJ) and the National Union of Journalists of the Philippines (NUJP) urge all concerned government agencies, but especially AMLC, to take whatever steps are necessary to correct this anomaly.

President Benigno Aquino III earlier said his administration would do everything to expedite the Massacre case and assure the victims justice at the soonest. AMLC’s apparent lack of urgency in extending the freezing of the Ampatuan assets will be interpreted as reflective of the Aquino government’s own lack of enthusiasm.

Twenty-eight Ampatuans are among the accused in the Maguindanao Massacre. The outcome of the trial is crucial to the Philippine press and media. Unless credibly concluded, it will encourage further killings by demonstrating that the culture of impunity that has encouraged the killing of political activists, environmental advocates, members of the clergy, human rights workers, journalists and others who have antagonized local power groups, criminal syndicates and state security forces will continue.

The return of their bank accounts, firearms and other resources constitutes a formidable advantage for the Ampatuans. It is imperative that this advantage be denied them to level the legal playing field and to help credibly conclude the trial of the accused in the Ampatuan Massacre.

With the edge that the lapse of the freeze order has restored to the Ampatuans, the trial will send all the wrong messages to the would-be killers of journalists, political activists, etc., as well as to society as a whole: that the killings can continue and that it is impossible to obtain justice in a society whose government institutions are unable to perform their mandated tasks, in this case the AMLC entrusted with the task of enforcing banking laws, which among others require banks to report “suspicious transactions” to the AMLC.

The AMLC filed its request for the freezing of the multibillion assets and hundreds of bank accounts of the Ampatuans only last May—a full 18 months after the Massacre, during the investigation of which the existence of these billions and other assets was discovered, and in fact amply reported in the media. But the freeze order it eventually obtained from the Court of Appeals has been allowed to lapse on December 2, 2011.

The FFFJ and the NUJP are appalled by this default, and demands that the AMLC explain why it failed, in the first place, to note the money trail evident in the number of Ampatuan bank accounts, and why it allowed the freeze order to lapse.  Is this the result of sheer inefficiency and incompetence, or a deliberate attempt to ignore the hundreds of Ampatuan bank accounts whose existence alone should have aroused suspicion? Or it is not so much a case of incompetence and inefficiency as a case of sheer partisanship, in which case the AMLC must be subjected to the closest public and legislative scrutiny.

SIGNATORIES:

Freedom Fund for Filipino Journalists:

Center for Community Journalism and Development

Center for Media Freedom and Responsibility

Kapisanan ng mga Brodkaster ng Pilipinas

Philippine Center for Investigative Journalism

Philippine Press Institute

and the

National Union of Journalists of the Philippines

In its 8 November 2011 decision penned by Associate Justice Noel Tijam, the Manila CA Special (Former) 11^th Division dismissed the amended petition for certiorari (with application for issuance of a writ of preliminary injunction) filed by Ampatuan questioning his reinstatement as an accused in the multiple murder case against 196 alleged planners and perpetrators of the Ampatuan, Maguindanao Massacre in May 2010.

Rule 65 of the Rules of Court states that any aggrieved person can file a petition for certiorari “when any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law”.

The appellate court said that the Department of Justice (DOJ) did not commit grave abuse of discretion in issuing its 5 May 2010 resolution as alleged by Zaldy Ampatuan. It explained that “…the DOJ acted within the bounds of its jurisdiction when it gave more weight to the positive declaration of the prosecution witness Abdul Talusan y Ogalingan over the defense of denial and alibi by Petitioner (Zaldy).”

Talusan’s testimony was one of the additional evidence presented by private prosecutors asking reconsideration of the 16 April 2010 decision of then acting Justice Sec. Alberto Agra dropping Zaldy and his uncle Akmad “Tato” from the list of accused perpetrators of the Ampatuan Massacre. The 16 April 2010 decision was reversed by Agra on 5 May 2010.

“…the DOJ has an ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders,” the 40-page decision read.

Addressing the possibility that it may be accused of succumbing to public pressure, the decision said in its final note that:

“We are not oblivious to the Petitioner’s claim that the DOJ, in reversing its April 16, 2010 Resolution, was rightly or wrongly perceived to have merely given in to the pressure brought by the victims’ families’ clamor for empathy or even the public condemnation brought about by the initial exclusion of herein Petitioner from the charge sheet. Precisely, it is the existence of these controversies that make the Maguindanao massacre a celebrated case.

“In denying the petition, We are not succumbing to any internal or external pressure whatsoever; We so rule simply because the prosecution has established the presence of probable cause that warrants Petitioner’s inclusion as one of the accused in this case. Again, We are not concerned about the Petitioner’s culpability or non-culpability; We only hold that he should be held for trial in the absence of grave abuse of discretion amounting to lack or excess of jurisdiction that would taint the DOJ’s finding of probable cause.”

In his dissenting opinion, the chairman of the Former 11^th Division, Associate Justice Mario Guariña III, said Zaldy Ampatuan should be given “the opportunity to respond to the supplemental motion for reconsideration and new evidence filed against him.” Justice Guariña said Zaldy has “every reason to contest the presentation of the new evidence against him” citing: (1) “indisputable evidence” against Kenny Dalandag’s claim that Zaldy was at the 22 November 2009 meeting where the “massacre” was allegedly planned; (2) possibility of Talusan being a “coached or rehearsed witness”; (3) “lost” opportunity to present evidence against Talusan “in a total display of misguided justice.”

Zaldy was among the Ampatuan clan members accused of planning and executing the 23 November 2009 massacre of those who joined the convoy led by the wife of Esmael “Toto” Mangudadatu to Shariff Aguak, Maguindanao. They were supposed to file the politician’s certificate of candidacy for the Maguindanao gubernatorial race in May 2010. Six of the 58 massacre victims were motorists who were not part of the convoy and were on their way to Shariff Aguak for other reasons.

As of press time, only 64 out of the 196 suspected perpetrators have been arraigned. The latest Ampatuan arraigned was patriarch Andal Ampatuan Sr., who was arraigned after his own petition for certiorari was junked by the Manila CA.

Zaldy, his legal counsel Howard Calleja, and the warden of Quezon City Jail Annex, Jail Senior Insp. Bernardino Edgar Camus, are also facing similar charges.

An “Amended Motion for the Issuance of a Show Cause Order” was filed July 28 by lawyer Nena Santos, legal counsel of 26 private complainants including Maguindanao Gov. Esmael “Toto” Mangudadatu in the Ampatuan Massacre case.

What happened?

ABS-CBN 2 aired an “exclusive” interview with the suspended ARMM governor last July 11. The interview was conducted by ABS-CBN 2 anchor-reporter Taberna inside Zaldy’s cell in the presence of Calleja. (A similar interview was conducted by GMA-7’s Joseph Morong, but GMA-7 was said to have secured a permit from the authorities.)

In the interview, Zaldy expressed his plans to change his surname, as well as his willingness to reveal what he knows in relation to the massacre. On air, Zaldy said “Pwede po ako mag-testify kung sino man po ang involve maging magulang ko man o kapatid….para sa ikalulutas ng problemang ito. At pawang katotohanan lang ang sasabihin ko (I can testify whoever is involved, even if it’s my father or brother…to solve this problem. And what I will say will all be true).”

The next day, ABS-CBN 2 aired other parts of the interview in which Zaldy revealed his knowledge of the cheating in Maguindanao and ARMM during the 2004 and 2007 elections.

DoJ’s verdict

Justice Sec. Leila de Lima was quoted in several news reports as saying that Zaldy would not qualify to be a state witness in the massacre case. Zaldy until today maintains his innocence, thus disqualifying him from being a state witness. (A state witness has to admit guilt and must be one of the least guilty among the accused.) Zaldy’s petition for certiorari is still pending before the Court of Appeals in Manila. Zaldy, through lawyer Redemberto Villanueva, filed a petition for certiorari in June 2010 before the Manila Court of Appeals questioning the decision of then acting Justice Sec. Alberto Agra to reinstate him and Akmad in the charge sheet in May 2010. (In Oct. 2010, Zaldy’s party filed a memorandum to the June petition.)

Sec. 10 of Republic Act (RA) No. 6981 or “An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes” and Sec. 17 (Discharge of accused to be state witness), Rule 119 of the Rules of Court describe a state witness as someone who has knowledge of and/or allegedly participated in the crime. The Revised Rules of Criminal Procedure (Revised Rules of Court, Rules 110-127) lists the following as requirements for a person accused of a crime to be considered as a state witness:

“a. There is absolutely necessity for the testimony of the accused whose discharge is requested;

“b. There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;

“c. The testimony of said accused can be substantially corroborated in its material points;

“d. Said accused does not appear to be the most guilty; and

“e. Said accused has not at any time been convicted of any offense involving moral turpitude.”

Zaldy’s lawyers also pointed out in various interviews that their client never said he wanted to be a state witness in the Ampatuan Massacre case.

Bargaining chip

However, people are wondering how Malacañang would treat the information on the alleged cheating in Maguindanao during the 2004 and 2007 elections being offered by the suspended governor.

Lawyers and legal experts including Freedom Fund for Filipino Journalist legal counsel Prima Jesusa Quinsayas are of the opinion that even if Malacañang endorses Zaldy Ampatuan as a state witness in a criminal case regarding the election fraud in 2004 and 2007 and he is accepted into the Witness Protection Program, ideally, other cases against the suspended governor including the 57 counts of murder should not be dismissed or dropped. According to RA 6981, Sec. 12: “Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof.” The Ampatuan Massacre case and the electoral fraud charges are separate in nature.

However, relatives of the victims and media organizations remain wary that Zaldy would testify not without getting anything. In a statement, JUSTICE NOW!, an organization of the relatives of media victims in the Ampatuan Massacre, said: “Alam naming mahalagang malaman ang mga nangyaring dayaan sa eleksyon, subalit hindi dapat makalabas ng kulungan si Zaldy Ampatuan kapalit nito. Kung tutuusin, ang pinakaligtas na maaari sa kanyang paglagyan ay ang kulungan pa rin.” (We know it is important to look into the alleged cheating that happened during the elections but Zaldy’s release from detention should not be allowed. In fact, the safest place for Zaldy would be in jail.)

What the families and journalists fear may or may not happen. In a country where politics often influences the implementation of the law, no one knows what will happen in the next months.

Possible contempt

Meanwhile, some private complainants asked the court to “require” Zaldy Ampatuan, his legal counsel Calleja, Camus along with ABS-CBN 2, Taberna, and other staff to explain why they should not be cited for contempt for allowing the interview with the suspended governor.

In their motion, the group said the respondents violated the sub judice rule for allowing the conduct and airing of the interview. “Accused Zaldy Ampatuan’s statements during the interview, as elicited from the line of questioning of Mr. Taberna, would violate the sub judice rule,” the motion read. It quoted Romer II, et al.vs Estrada et al. which states that the sub judice rule “restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice.”

It also added that “(t)he interview of Accused Zaldy Ampatuan was an act which would require them to explain why they would not be guilty of indirect contempt under Section 3(d) of Rule 71,” the motion read. Section 3(d) of Rule 71 states, “Any improper conduct tending directly or indirectly, to impede, obstruct, or degrade the administration of justice” constitutes indirect contempt.

They also said ABS-CBN 2 “conducted without authority from this Honorable Court (or) from the Bureau of Jail Management and Penology (BJMP), considering that accused Zaldy is currently detained and an inmate at Camp Bagong Diwa, and thus, under its custody…. This is a blatant violation of the BJMP’s Standard Operating Procedures No. 2010-03, otherwise known as Guidelines in the Conduct of Media Interview/Press Conference with Inmates…wherein the first requirement for an interview would be the ‘clearance from the Chief, BJMP/Regional Director’ and ‘clearance from the Court/s where the case/s is/are pending.”

Pending bid to be state witnesses

Meanwhile, the prosecution panel’s bid to turn other accused persons into state witnesses was turned down by the court.

In an eight-page Omnibus Order, Judge Jocelyn Solis Reyes said that the motion to discharge from the charges accused Mohammad Sangki, Police Insp. Rex Ariel Diongon, and Police Officer 1 Rainier Ebus and to make them state witnesses filed by the prosecution panel was “bereft of merit.” The prosecution had earlier asked the court to make Police Insp. Michael Macaraeg, one of those accused of involvement in the massacre, a state witness, but withdrew the motion on Nov. 17, 2010.

The court found that “their (Diongon and Ebus) testimony will suffice and may be admitted as gospel truth in the absence of evidence to the contrary,” but Reyes said that “there is no absolute necessity for the testimonies insofar as accused Andal Ampatuan Jr. and Andal Sr. are concerned.”

Reyes also said “A cursory reading of the foregoing will show that some if not all were likewise the subject of the testimonies of prosecution witnesses who were earlier presented on the witness stand,” the resolution read, adding that “the testimonies of Diongon, Ebus and Sangki were merely corroborative in nature.”

The judge explained that “Such being the case, they do not qualify as state witnesses…when there is absolute necessity for the testimony of the said accused whose discharge is requested, as when he alone has knowledge of the crime and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution.”

In an eight-page Omnibus Order, Judge Jocelyn Solis Reyes Judge Jocelyn Solis Reyes said that the motion to discharge from the charges accused Mohammad Sangki, Police Insp. Rex Ariel Diongon, and Police Officer 1 Rainier Ebus and to make them state witnesses filed by the prosecution panel was “bereft of merit.” The prosecution had earlier asked the court to make  P/Insp. Michael Macaraeg, one of those accused of involvement in the massacre a state witness, but withdrew the motion on 17 November 2010.

The court found that “their (Diongon and Ebus) testimony will suffice and may be admitted as gospel truth in the absence of evidence to the contrary,” but Reyes said that “there is no absolute necessity for the testimonies insofar as accused Andal Ampatuan Jr. and Andal Sr. are concerned.”

Reyes also said that “A cursory reading of the foregoing will show that some if not all were likewise the subject of the testimonies of prosecution witnesses who were earlier presented on the witness stand,” the resolution read, adding that “the testimonies of Diongon, Ebus and Sangki were merely corroborative in nature.”

The Revised Rules of Criminal Procedure (Revised Rules of Court, Rules 110-127) list  the following as requirements for an accused person to be considered as a state witness:

1. There is absolute necessity for the testimony of the accused whose discharge is requested;
2. There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;
3. The testimony of said accused can be substantially corroborated in its material points;
4. Said accused does not appear to be the most guilty; and
5. Said accused has not at any time been convicted of any offense involving moral turpitude.

The judge explained that “Such being the case, they do not qualify as state witnesses…when there is absolute necessity for the testimony of the said accused whose discharge is requested, as when he alone has knowledge of the crime and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution.”

In the same 29 July 2011 order, the court allowed the Andal Jr. to “adduce evidence supportive of his application for bail…after the prosecution has rested its case is confirmed.” The court quoting Atty. Fred Henry Marallag, et al. vs. Judge Loreto Cloribal-Purungganan said: “it was held that where the admission to bail of an accused is discretionary, it is mandatory for the trial court to conduct a hearing to afford both the prosecution and the defense a reasonable opportunity to present evidence to establish, in the case of prosecution, that evidence of the guilt of the accused is strong, and in the case of the defense, that such evidence of guilt is not strong.”

The court also denied 29 July 2011 the motion for a clarificatory order filed by the lawyers of Andal “Unsay” Jr. Unsay’s counsels led by Sigfrid Fortun filed last January 31 a motion for a clarificatory order asking the court to explain if the evidence presented in early 2010 should be “retested in relation to the fifty-seventh case, which was then inexistent.” The 57^th Information, that of the murder of UNTV’s Victor Nuñez, was filed only in May 2010.  “Retesting” means lawyer Fortun could have the witnesses recalled for another round of cross-examination.

“It must be borne in mind that all the 57 cases arose out of the same incident, and except for the names of the victims, the 57 Informations were couched in similar words or language,” the court said. “With the adoption by the prosecution of the evidence and testimonies of the witnesses in the 56 cases as its evidence in the 57^th case without new matters having been adduced as against the accused, and having been able to exhaustively conduct his cross-examination of said witnesses, accused cannot claim that his right to cross-examine the witnesses against him in respect of the 57^th case was violated, if not allowed to do so.”

Zaldy, through his legal counsel Redemberto Villanueva, filed a “Very Urgent Motion for Medical Examination” before the Quezon City Regional Trial Court (RTC) stating that they “want him (Zaldy) to undergo an examination due to his fluctuating blood pressure and sugar level brought about perhaps by the changing weather.” The five-page motion stated that the suspended governor prefers to be examined and confined at St. Luke’s Global City.

A clinical summary allegedly written by a Reynaldo Romero, M.D. claims that the governor is suffering from “Type 2 Diabetes Poorly Controlled with Possible Retinopathy and Nephropathy.”

Zaldy cited Article 10 of the International Convention on Civil and Political Rights (ICCPR) and Section 19 of the 1987 Constitution which both pertain to the treatment of detainees/accused.

On May 20, the court  granted Ampatuan and his father permission to undergo medical checkups while  behind bars. On June 16, the court also issued a waiver of appearance for Ampatuan Sr , which allows the patriarch to not be present during court proceedings unless it is required.

Eyewitnesses identify Ampatuans, CVO

On 29 June 2011, the prosecution re-called Lakmodin Saliao,  a former member of the household staff of the Ampatuans, to the witness stand. Saliao was an aide of Ampatuan Sr.

Saliao pointed to Sajid Islam and Andal Sr. when asked to identify who were present at the meeting on Nov. 19 and 22, 2009 where the Ampatuans allegedly planned the massacre.

Meanwhile, Abubakar Abdul Esmail, another eyewitness to the case, identified a civilian volunteer organization member as being present at the crime scene. Esmail pointed to Moaktar Daud last 6 July 2011.

Two other police officers testify

Police Supt. OSCAR NANTES, the former acting chief of the personnel division of the ARMM Philippine National Police Regional Office, and Police Supt. Nelson Quevedo took the witness stand last 7 and 6 July 2011. The court is currently hearing the petitions for bail filed by over 30 accused persons including Andal Ampatuan Sr. and his son Sajid Islam.

Nantes testified on who were the members of the 1507^th and 1508^th Regional Mobile Groups (RMGs) under PRO ARMM. Several members of the two RMGs are accused in the case. He also presented the special orders issued by the PNP on November 24, 26, 27, 30 and December 1, 2009 pertaining to the termination of designation and restrictive custody of several police officers who had “jurisdiction” over the site of the November 23, 2009 Massacre including those assigned to the municipal police office of Ampatuan town.

The defense lawyers however questioned the power of the police regional office to issue orders of restrictive custody without “summary hearing or due notice.” They cited Republic Act (RA) No. 6975 Sec. 41 b which states that “In dealing with minor offenses involving internal discipline found to have been committed by any regular member of their respective commands, the duly designated supervisors and equivalent officers of the PNP shall, after due notice and summary hearing, exercise disciplinary powers…”

The prosecution, meanwhile, asked Quevedo to identify the affidavits issued by several police officers after the 23 November 2009 incident.

In a 28 June 2011 resolution, the Supreme Court en banc granted the petition filed by the National Press Club of the Philippines (NPC) and Alyansa ng Filipino Mamamahayag (AFIMA, Alliance of Filipino Journalists) asking that Branch 221 of the Regional Trial Court of Quezon City be named as “a special court which should have no other duties but the trial of Maguindanao massacre cases.”

“The Regional Trial Court, branch 221 of Quezon City is also GRANTED full authority to resolve any matter and issue which may arise from the said cases, including issues cognizable by other special courts without need of further designation by this Court,” the resolution read.

The High Court also approved  the current policy being implemented by the Executive Judge of QC RTC which exempts Branch 221 from any raffle of new cases. The High Court said that the Court’s exemption from raffles will continue “until the Presiding Judge decides the aforementioned cases or upon further orders from this Court.”

The designated assisting judges will handle other pending cases already pending before QC RTC Branch 221, the High Court said, adding that the assisting judges have been assigned earlier in pursuant to Administrative Order Nos. 19-2010, 54-2010, and 150-2010.

According to the 28 June 2011 resolution, both the Department of Justice and the defense lawyers agreed to the designation of QC RTC Branch 221 as a special court. “All parties called for the speedy disposition of the case by conducting daily marathon hearings, citing material factors such as the large number of accused, victims, and witnesses involved in the trial, as compelling reasons therefor.”

It quoted Andal Ampatuan Jr.’s comment which said “(Ampatuan Jr.) had already previously invoked his right to speedy trial and the early resolution of the cases filed against him during the preliminary investigation conducted by the Department of Justice (DOJ).”

Last 14 June 2011, the Supreme Court allowed with conditions and without establishing the ruling as a precedent the live coverage of hearings on the multiple murder case filed against Ampatuan Jr. and 195 other accused for the killing of 57 persons on 23 November 2009. The Public Information Office of the Supreme Court did a test live webcast of the 28 June 2011 hearing.

Freeze order on Ampatuan assets extended

The Court of Appeals (CA) in Manila extended up to 2 December 2011 the freeze order it issued over assets and bank accounts of 28 Ampatuan clan members and their cohorts. This is the second time the appellate court extended the freeze order. (See GMANews Online’s 5 July 2011 report: http://www.gmanews.tv/story/225311/nation/ca-extends-freeze-order-vs-assets-of-ampatuan-clan)

The CA Special Second Division, in a 67-page resolution, junked the motions filed by the Ampatuans to lift the freeze order issued 6 June 2011.

“The effectivity of the Freeze Order is extended up to 02 December 2011 or for a period not exceeding six (6) months, from 06 June 2011, pursuant to Section 53(b) of A.M. No. 05-11-04-SC. Let the records of this case be transmitted to the Regional Trial Court for consolidation with any pending civil forfeiture proceedings, in accordance with Section 56 of AM. No. 05-11-04-SC,” the resolution read as quoted in the news.

The freeze order was issued on 6 June 2011 upon the petition of the Anti-money Laundering Council (AMLC).

Quezon City RTC Branch 221 Judge Jocelyn Reyes-Solis dismissed  in a five-page order the motions of Andal “Unsay” Ampatuan Jr. dated 20 August 2010 and 16 September 2010 which seek the exclusion of 33 other accused and of Kenny Dalandag as witnesses for the prosecution. Former Ampatuan security man Dalandag has admitted participation in the execution of the 23 November 2009 Ampatuan massacre.

“Both motions (are) bereft of merit…. there is nothing under the Rules which requires the prosecution to ask first for the discharge of accused as state witnesses before their names may be included in the list of witnesses to be presented,” the judge ruled.

Ampatuan Jr. filed on 20 August 2010 a motion asking for the “disqualification of all 33 accused…as witnesses for the prosecution until the qualifications for their conversion as witnesses is established through the procedure set forth under the Rules and case law.”  He argued that the 33, mostly members of the 1508^th Regional Mobile Group of the province of Maguindanao, were “co-conspirators to the murder of innocents and to use them as witnesses without qualifying them for their conversion as such will be a travesty of justice.”

He also filed on 16 September 2010 a motion saying that “the prosecution’s listing of Kenny Dalandag in the Amended Pre-trial as witness for the State is a serious anomaly because he did not pass through the accused-conversion evaluation as provided under Section 17, Rule 119 and Republic Act No. 6981.”  RA 6981 pertains to the Witness Protection, Benefits and Security Program Act of 1991.

Solis agreed with the prosecutors’ argument that they were merely complying with Administrative Matter (AM) 03-1-09-SC which states that “No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in-chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown.”

Solis also ruled that “Dalandag cannot be disqualified or excluded as a witness on the ground that he did not pass through the crucible of accused-conversion evaluation under Section 117, Rule 119 and Republic Act 6981” as he is not an accused in the massacre case.

She explained: “Thus, being an ordinary witness, there is no need for the prosecutors to file a motion for his discharge before he may be presented as such. Neither is it necessary to comply with Section 10, RA 6981.”

Ampatuan Jr.  files certiorari vs DOJ, prosecutors

Four days after the release of the order denying the motions to exclude, the court received a manifestation and urgent motion from Unsay Ampatuan Jr. asking the QC RTC branch 221 to defer the presentation of Dalandag pending a petition for certiorari the primary accused filed before the Supreme Court.

“To allow the Supreme Court to rule on the propriety of the prosecution’s inaction, it will be prudent and in observance of judicial courtesy that his being allowed to testify as witness for the prosecution be deferred until a final ruling on the petition is issued,” the urgent motion read.

Unsay filed a petition for certiorari before the Supreme Court 4 July 2011 seeking the reversal of another court’s dismissal of his petition for a writ of mandamus. Unsay was asking the Manila RTC to compel the Justice department to indict Dalandag for the Ampatuan massacre.

The primary accused also asked the High Court to issue a temporary restraining order and/or a writ of preliminary injunction to stop the respondents, the Secretary of Justice, the Chief State Prosecutor (now Prosecutor General), the National Prosecution Service, and the Panel of Prosecutors in the Maguindanao Massacre, from presenting the alleged member of the Ampatuan private army before QC RTC Branch 221 pending the resolution of the certiorari request.

In the petition dated 4 July 2011, Unsay’s lawyers said Branch 26 of RTC Manila erred in dismissing their petition for mandamus which seek to compel the Department of Justice to include Dalandag as accused in the Ampatuan Massacre case. Unsay said the Manila RTC order filed last 27 June 2011 is “contrary to existing jurisprudence and is not supported by the records of the case” and “constitutes judicial avoidance.”

Under Sec. 3, Rule 65 of the Rules of Court, a petition for mandamus is sought “(w)hen any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled.”

“The court a quo’s manifest error is readily apparent upon a perusal of the questioned Order as it shirks from its responsibility to adjudicate on the question of respondent’s duty to prosecute admitted felons,” Unsay’s lawyers said in the 4 July 2011 petition.

Unsay filed the petition for Mandamus in December 2010 after the Justice department allegedly “refused to indict Dalandag despite his written confession”. RTC Manila Branch 26 dismissed the said petition explaining “the Court has no power or prerogative to intervene with the functions of the executive department to decide who to prosecute.”

In a resolution penned by Justice Conchita Carpio Morales and promulgated 14 June 2011, the Supreme Court, sitting en banc, allowed pro hac vice (“for this occasion”) live radio and television coverage of the Ampatuan (Maguindanao) Massacre trial subject to guidelines it specified.

“[I]t is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings,” the resolution read. It explained that the guidelines, which are “not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.”

The guidelines include the filing of applications for live broadcast; the continuous broadcast of a day’s proceedings with no commercial breaks allowed; and no re-airing of the audio-visual recording made during the proceedings until after the promulgation of the decision. (Read the Supreme Court guidelines here.)

First time

In ABS-CBN News Channel’s morning show Headstart last 15 June 2011, Court Administrator Jose Midas Marquez said it was the first time the Supreme Court had granted a media request for live coverage of a court trial. The Supreme Court had previously denied two requests for live coverage filed by members of the Philippine media.

The 14 June 2011 resolution said: “One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases—the private complainants/families of the victims and other witnesses—inside the courtroom.”

Prior to the Maguindanao Massacre trial, the media had requested live coverage of two other cases.

The first request came in 1991 when a local court heard the libel charges filed by former president Corazon Aquino against then Philippine Star columnist Luis Beltran after the latter said in his column that the former president “hid under her bed” when rebel soldiers attacked Malacañang during a 1987 coup d’etat attempt.

In 2001, the media again requested live coverage of court proceedings under the supervision of the Sandiganbayan (Ombudsman court) of the plunder cases filed against former president Joseph Estrada. The Court initially denied this request, but later allowed the press to cover the promulgation of the decision live.

Restrictive?

While the petitioners recognized the decision as a positive development, some media organizations claimed that the guidelines were unduly “restrictive.”

In a report published online by Interaksyon.com last 16 June 2011, Romeo Capulong, a human rights lawyer who was part of the team that prepared the petition requesting for  live coverage, emphasized that the press needs to be “creative  and to ensure that the guidelines do not stifle the effective delivery of news about the trial or impinge on editorial judgment”.

The National Union of Journalists of the Philippines (NUJP), the national broadcast networks ABS-CBN Broadcasting Corp, TV5, and GMA-7,  individual journalists and media workers, and relatives of the massacre victims (private complainants in the murder cases) filed before the Supreme Court the “petition to allow radio and television coverage” last 19 November 2010. They asked the Court to: (1) “abandon” its resolutions on the requests for live coverage of the libel case against Beltran and the plunder case against Estrada, (2) allow live radio and television coverage of the Ampatuan Massacre trial, (3) allow recording devices inside the courtroom, and (4) “formulate reasonable guidelines that will govern the conduct of television coverage of the Ampatuan trial and of other trials in the future.” (Disclosure: The Deputy Director and editorial staff of the Center for Media Freedom and Responsibility signed the petition.)

President Benigno Aquino III also wrote to Supreme Court Chief Justice Renato Corona saying he supports the request for live coverage. His letter-request was consolidated with the NUJP-led petition.

The National Press Club and the Alyansa ng Filipinong Mamamahayag also filed a separate petition which asked “the setting up of videocam and monitor just outside the court for journalists to cover and for the people to witness the “trial of the decade” to make it truly public and impartial as commanded by the Constitution.”

The petitioners will meet the Supreme Court Administrator for further clarification of the guidelines.

The worst attack against the press in Philippine history, the 23 November 2009 massacre in Ampatuan town in Maguindanao province left 58 individuals, including 32 journalists and media workers dead. The trial of 196 individuals including principal accused Andal “Unsay” Ampatuan, his father and former Maguindanao governor Andal Ampatuan Sr., and brother, former Autonomous Region in Muslim Mindanao governor Zaldy Ampatuan, is ongoing.