Although we had expected a whitewash of the cases against the Ampatuans of Maguindanao because of the family’s close “friendship” to Gloria Macapagal Arroyo, the decision of Acting Justice Secretary Alberto Agra to drop murder charges against ARMM Gov. Zaldy Ampatuan and his cousin Akmad Ampatuan — even before the court could hear all testimonies and receive all evidence against the two accused — still came as a shock.
Agra said there was “no proof of conspiracy” against the two Ampatuans, in essence nullifying the testimony of a state witness, Mohamad Sangki, who claimed that the ARMM governor knew and approved of a plan to ambush supporters of the rival Mangudadatu clan.
Agra gave weight to Zaldy Ampatuan’s alibi that he was on his way to Malacanang in Manila at the time of the massacre. Agra also considered the alibi of Akmad Ampatuan, who claimed he was with a medical mission elsewhere at the time of the massacre.
I covered the Manila courts and fiscal’s offices for more than two years in the mid-70s, and I know that it was the duty of the prosecutors to establish if there was a prima facie (Latin word for at first sight) case against the accused or a “probable cause” to file charges before the court. In the case against Zaldy Ampatuan, a witness actually testified before the court that the ARMM governor was part of the conspiracy to ambush and kill the Mangudadatu supporters, who were on their way to file the certificate of candidacy of gubernatorial candidate Esmael “Toto” Mangudadatu.
There was also reason to believe that the massacre was planned in advance and that the entire clan had knowledge of or actual participation in the massacre. With the testimonies of Mohamad and his brother Rasul Sangki linking Zaldy and the other Ampatuans, there was already “probable cause,” and the determination whether the witnesses’ testimonies should be believed should have been left to the court.
On the two Ampatuans’ alibi that they were elsewhere when the crime occurred, Agra failed to consider that Zaldy and Akmad were not being charged as direct participants in the massacre, but as conspirators or accomplices. They did not have to be at the scene of the crime to be guilty of murder. An accused can be guilty of murder even without being at the scene of the crime or firing a single shot if he had ordered the killing or had participated in the murder’s planning.
At least three prominent trial lawyers — Sen. Joker Arroyo, former Sen. Franklin Drilon and private prosecutor Harry Roque – reminded Agra that in criminal law, “alibi is the weakest form of defense.”
Even his subordinates, the state prosecutors, protested Agra’s ruling and staged a walkout last Monday. The prosecutors questioned the basis and the timing of the resolution that Agra issued a day after he assured the families of the victims that he had yet to study the petition for review filed by the detained Ampatuans which asked Agra to drop the charges against them.
“We are deeply concerned that the resolution will all the more convince a long skeptical public that our criminal justice system is impotent when the accused are politically influential,” Chiuef State Prosecutor Claro Arellano said on behalf of the 2,000-member National Prosecution Service and the panel of prosecutors handling the case.
One could say that Agra was absent when these aspects of criminal law were taught in his class, but then he was a state prosecutor for many years not to learn those basic concepts in criminal law. Or perhaps, Agra conveniently forgot about alibis, probable causes and prima facie evidence for reasons more important to him than serving the needs of justice.
Deputy presidential spokesman Gary Olivar was quick to insulate his boss from insinuations that Arroyo had something to do with Agra’s sudden ignorance of criminal procedures, stating that “it was obscene to insinuate that the President would interfere for any kind of political or personal reason in the legal proceedings of a heinous crime like the Maguindanao massacre.’’
Was it really?
When news broke out that 57 Mangudadatu supporters and journalists had been massacred in Maguindanao on Nov. 23 last year, Arroyo and her spokesmen, which did not include Olivar then, were eerily quiet. Three days later, then spokeswoman Lorelei Fajardo, a relative of Arroyo, said: “I don’t think the President’s friendship with the Ampatuans will be severed. Just because they’re in this situation doesn’t mean we will already turn our backs on them.”
Some friendship it must have been. The Ampatuans were accused of the most heinous and most barbaric crime, and Arroyo was ready to stand by them? She must have owed the Ampatuans so much to stand by them even in the face of public outrage of the massacre. But then, when did Arroyo ever consider the people’s feelings?
Subsequent investigative reporting by journalists belonging to the Philippine Center for Investigative Journalism, Vera Files, Newsbreak and other publications revealed the extent with which Arroyo has repaid his political debts to the Ampatuans, who have been identified as responsible for delivering the votes for Arroyo in the 2004 presidential elections as insinuated in the Garci Tapes scandal. Such paybacks have allegedly included providing the clan with high-powered arms, billions of pesos, and turning a blind eye to their abuses and atrocities in the province and in the region.
It has also been claimed that Arroyo was being blackmailed by the Ampatuans with a threat to expose anomalies during the 2004 elections, prompting Arroyo to declare martial law in Maguindanao to enable loyal troops to search for incriminating documents in the mansions of the Ampatuans.
Either the Ampatuans are still holding to the hot documents, or Arroyo needs them again for the coming presidential elections. The timing of the dropping of the charges against Zaldy Ampatuan, who is alleged to be an expert election manipulator and responsible for the election fraud in 2004 in the region, was suspect, having come just three weeks before the elections.
Ampatuan could repeat the 2004 operations to help whoever Arroyo is supporting (remember that the Ampatuans have endorsed NP candidate Sen. Manny Villar), or another earth-shaking political violence could occur to justify a declaration of failure of elections or even a proclamation of martial law, and Ampatuan could either be the instigator or the fall guy.
The impunity with which Arroyo and her allies have been violating the laws has become so repugnant that it is no longer “obscene,” as Olivar wants us to believe, to think of scenarios and conspiracies.
Agra, a midnight appointee, after all could have been a part of the conspiracy to usurp the people’s will and vote in 2004, having been a lawyer for Arroyo’s K-4 coalition during the 2004 elections. He was a key officer of a group of lawyers who committed to “watch” Arroyo’s vote during the elections.
Agra, an avid Arroyo loyalist, couldn’t have made the ruling to clear the two Ampatuans without the consent of his boss. Something deeper than alibis and lack of probable causes made him throw caution to the wind and invite not only the outrage of his department’s prosecutors, but of the people as well.