Court denies motions to exclude prosecution witnesses

CMFR/PHILIPPINES – The Regional Trial Court (RTC) judge hearing the Ampatuan (Maguindanao) Massacre case denied last 1 July 2011 the primary accused’s motions protesting the inclusion in the prosecution’s list of witnesses other accused persons and a confessed participant in the 23 November 2009 incident in which 58 people including 32 journalists and media workers were killed.

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.”