State witnesses and the Ampatuan Massacre trial
For airing an “exclusive” interview with Autonomous Region in Muslim Mindanao (ARMM) suspended governor Zaldy Ampatuan last July 11, ABS-CBN 2 and reporter Anthony Taberna are facing possible contempt charges.
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.”
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