JUSTICE FOR 58: A SUMMARY OF THE AMPATUAN MASSACRE TRIAL

Posted by cmfr | Posted in Ampatuan Trial Watch, Case Updates | Posted on 19-12-2019

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By the Center for Media Freedom and Responsibility (CMFR) Freedom for Media, Freedom for All Network

ON DEC. 19, 2019, Judge Jocelyn Solis-Reyes, presiding judge of Branch 221 of the regional trial court of Quezon City, will promulgate the ruling on the Ampatuan Massacre case, after over nine years of trial.

The case called the attention of press organizations in the Philippines and of international media groups. The killings that occurred on Nov. 23, 2009 were described as the “deadliest strike against the press in history.”  

The massacre underscored the dangers to journalists in the Philippines, as advocates for press freedom and justice have focused on the months and years of trial.

THE TRIAL AND FACTS OF CASE

On Nov. 23, 2009, 58 persons were killed in Ampatuan town, Maguindanao province. The victims included 32 journalists and media workers, two lawyers, six motorists passing the same route, and the wife and sisters of Esmael “Toto” Mangudadatu, at that time the vice mayor of Buluan town in Maguindanao.

The Mangudadatu women were on their way to Shariff Aguak to file Toto’s certificate of candidacy for the 2010 gubernatorial elections. The convoy included media practitioners, and members of the community press, including broadcasters from TV and radio.

The media practitioners and workers — many of them from General Santos City and Koronadal City — were covering the filing of Mangudadatu’s certificate of candidacy, which his wife, Genalin, would accomplish on his behalf. The case also exemplified the violence that tars the record of elections in the country.

The Ampatuans were the ruling clan in Maguindanao: Andal Ampatuan Sr. was governor of the province and Andal Jr., or Datu Unsay, was mayor of Ampatuan town.

Mangudadatu’s challenge was news, a story that concerned not only the local community, but also the national public. Then President Gloria Macapagal Arroyo publicly acknowledged the Ampatuans as important allies, making them powerful partisans in national politics.

The convoy led by Genalin Mangudadatu drove through a route manned by police checkpoints. Implicated in the killings, officers of the Philippine National Police (PNP) were among those charged, including P/CInsp. Sukarno Dicay, at that time the chief of the 15th Regional Mobile Group, as well as at least 60 other policemen, and several members of the Ampatuan clan.

Datu Unsay was charged with murder.  This meant that the prosecution had to prove that, not only did he kill the victims, but that he did it in such a way as to ensure impunity. The elements of murder include treachery and the use of superior strength. The prosecution also alleged conspiracy, which meant that each of the accused may be accountable for the violence committed by the others: the conspiracy if proven would make the crime of one the crime of all.

DEATH AND DISAPPEARANCES

The hearings began on Jan. 5, 2010. Identifying so many suspects took time. And some could not be found. By early 2013, only 81 of the 98 arrested suspects had been arraigned.  The number of the accused included in the same charge sheet, no one could expect a quick trial.

Eight of the accused died during the period of trial. On July 17, 2015, Andal Ampatuan Sr. died of a heart attack while in detention.

 A potential witness, Suwahid Upham was killed in June 2010. Upham had admitted in a media interview that he was one of those who killed the victims, and that it was Datu Unsay himself who shot Genalin Mangudadatu, the wife of Esmael “Toto” Mangudadatu.

Witness Esmael Enog was killed after he testified in court that he was ordered by his boss, Alijol Ampatuan, to drive armed men to Barangay Malating, the site of the massacre. 

Although only 31 accused were initially charged with the massacre, the number of the accused increased to 197 after the PNP’s Criminal Investigation and Detection Group (CIDG) added more names to the list of suspects.

CUMBERSOME COURSE OF JUSTICE

Seventy detained suspects asked to be released on bail, which meant the court had to hear their petitions in lengthy proceedings.

The bail hearings for Datu Unsay alone took years, as witnesses were examined and cross-examined by both the prosecution and the defense. It was only on May 30, 2017, seven years after the trial began, that Judge Solis-Reyes denied Datu Unsay’s petition for bail.

The defense also filed numerous motions which added weeks and months to the process. Representing three of the accused Ampatuans, lawyer Philip Sigfrid Fortun asked Judge Solis-Reyes to recuse herself, filing six motions and an additional related motion. By 2013, the defense would file nine such motions, lengthening the time of of trial.

FURTHER DELAYS

In 2014, the Fortun Narvaza & Salazar Law Office, which represented several members of the Ampatuan family, withdrew as counsel. The defense of Unsay was taken over by the Fortun & Santos Law Office where Sigfrid’s brother, Raymond, is a name partner. Other clients were taken over by other law firms. 

The court gave each motion the time allowed by the Rules of Court.

In August 2019, as defense lawyers were due to submit a memorandum summing up their arguments, lawyer Paul Laguatan, then counsel of Datu Unsay, asked for the re-opening of the trial; which the court promptly denied.

Furthermore, eight contempt and two disbarment cases were also filed against the private prosecutor, lawyer Nena Santos. The numerous motions for reconsideration, the time given for the defendants to find new lawyers, as well as “delaying tactics of the defense”, tied up the case during the last three years.

“Maraming panahon na ginugol para i-resolve ’yung mga pending motions ng defense na napakarami,” said Nena Santos. She said the Ampatuans also filed cases against the witnesses and lawyers for the prosecution.

SUPREME COURT INTERVENES FOR SPEED

To speed up the trial, Chief Justice Ma. Lourdes Sereno issued new guidelines in December 2013, which named an “Assisting Judge” to Branch 221 who could take over some of the work in the trial. This allowed the submission of judicial affidavits instead of requiring all witnesses to testify before the court. Both the Presiding Judge (Solis-Reyes) and the Assisting Judge could resolve pending motions before them.

Although some of the motions had been appealed to higher courts, the measures “helped a lot,” Santos said, adding that the Supreme Court also assigned several lawyers to assist Solis-Reyes to resolve the numerous motions filed by the defense.

CASE RECORDS

Judge Jocelyn Solis-Reyes of the Quezon City Regional Trial Court Branch 221 submitted the case for decision on August 22, 2019 and was thus required by a Supreme Court circular to issue her verdict 90 days later in November. But citing the “voluminous records” of the case, she requested an extension of 30 days which the Supreme Court has granted. The promulgation of decision is expected on or before December 20.

The documents of the court case include:

  • 165 volumes of records on the trial;
  • 65 records of stenographic notes;  and
  • Eight records of the prosecution’s documentary evidence.
  • The court received the testimony of 357 witnesses.

Murder charges were filed against 197 persons.

The accused members of Ampatuan family include the patriarch of the clan, Andal Ampatuan Sr., who was accused of  planning the massacre; and Andal Ampatuan Jr., or Datu Unsay, who is accused of leading the killing himself.

Andal Sr., then 74,  died in  July, 2015 while in detention.

Of those charged, 80 are still at large as all efforts to arrest them had failed.

Ninety-seven are detained in Camp Bagong Diwa in Taguig, including Andal Jr. 

Eleven of those charged were released on bail.

Eight have either been released or had the case against them dismissed.

KEY WITNESSES: PROSECUTION

In its memorandum, the prosecution underscored the testimony of several witnesses:

SUKARNO BADAL, who said he saw the Ampatuans plan the killing and Datu Unsay take part in the massacre.

Badal was a trusted man of the Ampatuans. He said he was present in two meetings. In July 2009, he witnessed the Ampatuans as they discussed the plan to kill Mangudadatu. Another meeting in November 2009 discussed more details.

On Nov. 23, 2009, he testified that he saw the victims killed by the accused, among them Andal Ampatuan Jr.  Badal was among those initially charged in the information, but was dropped when he turned state witness.

ESMAEL CANAPIA, who said he saw Datu Unsay at the site of the massacre telling someone to hurry up in burying the bodies.

Canapia lived in Masalay village, the place of the massacre. On the day of the killing, he said he saw Datu Unsay with militia men, police officers, and some of the other accused in Masalay, telling someone to hurry up in burying the bodies. Canapia was among those initially charged in the information, and then turned state witness.

RASUL SANGKI, who said Datu Unsay told him of the plan to ambush the Mangudadatu convoy on its way to the Commission on Elections (Comelec), and that he was with Datu Unsay and the other accused when the victims were killed.

Sangki is a former vice-mayor of Ampatuan town.  Sangki said Datu Unsay told him of the plan to ambush the Mangudadatu convoy. He was with Datu Unsay when the latter talked to Andal Sr., after which Datu Unsay ordered the group to go on to Masalay. Sangki said he saw how Datu Unsay and the other accused kill the victims, after which Datu Unsay told him to go to Malating and tell people to say that they saw and heard nothing.

ESMAEL “Toto” MANGUDADATU said his wife, Genalin, called him on the morning of Nov. 23, 2009, telling him that Datu Unsay and his men had blocked the convoy and that Unsay had slapped her.

Mangudadatu received the call from his wife, Genalin between 9 a.m. – 10 a.m. He lost contact with her after that.

LAKMODIN SALIAO said he was present at a meeting when the massacre was being planned, and heard Andal Sr. tell Datu Unsay that he would be the one to do it, to which Datu Unsay agreed. He also heard Andal Sr. tell Unsay to kill the Mangudadatus.

A domestic helper of the Ampatuan clan, Saliao said he was present at a November 2009 meeting in which the Ampatuans agreed to kill anyone who would dare oppose the Ampatuans, and heard Andal Sr. tell Datu Unsay that the latter would have to be the one to block the Mangudadatu convoy in the highway. He added that Andal Sr. called for another meeting on Nov. 22, 2009, or just a day before the massacre, during which the plan to stop Mangudadatu from filing his certificate of candidacy and to kill him was again discussed.

Saliao said he was with Andal Sr. on Nov. 23, 2009, the day of the massacre, and heard him tell Datu Unsay to kill the Mangudadatus who were in the convoy.

NORODIN MAUYAG testified that he saw Datu Unsay maltreating the victims, and later heard gunshots coming from the direction that the Mangudadatu vehicles had taken.

A resident of Sitio Malating, Mauyag said he saw policemen and armed men in Malating on Nov. 20, 2009. On Nov. 23, armed men blocked the Mangudadatu convoy and brought them to Sitio Masalay. He said he saw Datu Unsay at Sitio Malating on Nov. 23, when the police stopped the Mangudadatu convoy at a checkpoint, and the victims were told to get down from their vehicles. He said he saw a woman shot between her legs. He said he saw Datu Unsay pulling a woman; described how Datu Unsay and his men maltreat victims. He said he heard gunshots coming from the direction of Sitio Masalay in the morning of Nov. 23, and later, saw a backhoe being driven towards the same direction.

AKMAD ABUBAKAR ESMAEL said he saw Datu Unsay and his men shoot the victims, and later, using a backhoe, bury their bodies.

On Nov. 23, 2009, Esmael was at his farm in Masalay harvesting corn when several vehicles arrived. He said he saw Datu Unsay alight from one of the vehicles, together with Police Chief Inspector Dicay and several armed men. He said he saw Datu Unsay and his men shoot the victims using high-powered firearms. He said he also saw the backhoe going up to massacre site, and later watched its use to bury the bodies of the dead along with the vehicles in the same pit.

NOH AKIL said he saw Datu Unsay in Sitio Masalay, the place of the massacre. He said Dicay, one of the accused, later told him there were people arriving to interview Akil, and Dicay wanted Akil to lie.

On Nov. 23, 2009, Akil said he saw Datu Unsay in Sitio Masalay and overhead him telling his men, who were armed, to stay put while he went to Sitio Malating with Dicay. On Nov. 24, 2009, he said Dicay told him that someone would arrive on Nov. 25 to interview him, and that he was to say that Dicay and a fellow police officer arrived at Sitio Masalay and Sitio Malating at about 11:30 a.m. on Nov. 23, 2009.

Medico-legal doctors from the National Bureau of Investigation (NBI) and the PNP also testified on the nature, number, and extent of gunshot wounds and other injuries sustained by the 58 victims.

KEY WITNESSES: DEFENSE

The defense presented two former prosecution witnesses who had recanted their testimonies, and who told the court that they were forced to sign their earlier affidavits.

As a witness for the prosecution, LAGUDIN ALFONSO had said earlier that he was near the checkpoint at Crossing Masalay in the morning of November 23, 2009. For the defense, he said he was instead with Thonti Lawani and Akmad Abubakar, another prosecution witness, in the house of Rasul Sangki.

THONTI  LAWANI had earlier said he saw the convoy of Datu Unsay going toward the mountainous portion of Masalay, and later heard gunshots coming from the direction where the convoy was headed. Recanting this testimony, he then testified for the defense, saying that he was not at Crossing Masalay on November 23, 2009.

FABIAN S. FABIAN, a Philippine Airlines (PAL) supervisor, testified that based on their records, Datu Unsay took a flight from Los Angeles, USA, on November 16, 2009, arriving in Manila in the morning of November 18, 2009. This was corroborated by the testimony of Immigration Officer Feliana Ong, who told the court that based on immigration records, Datu Unsay left the Philippines on Nov. 9, 2009, and returned on Nov. 18, 2009. This disputed the claim of Lakmodin Saliao, who said that Datu Unsay attended a meeting on Nov. 17, 2009.

Datu Unsay himself took the witness stand to deny that he was at the massacre site in the morning of the killing, saying that it was impossible for him to be with Mohamad Sangki and Rasul Sangki as the two hated him. Rasul had testified that he saw Datu Unsay and his men kill the 58 victims, while Mohamad told the court that Datu Unsay forcibly loaded two women on a vehicle and ordered his men to confiscate the bags and wallets of the victims, and then left Sitio Malating with Rasul Sangki.

ABEDIN ALAMADA, former councilor of Ampatuan town, said Datu Unsay attended the meeting from 8 a.m. to 12:30 p.m., as can be seen on the Minutes of the Meeting, which was signed by the attendees. Alamada is one of the co-accused in the case.

THEORY OF THE PROSECUTION

The prosecution said the Ampatuans executed the massacre; planning the murder as early as July, when Toto Mangudadatu made it clear that he was running for governor to contest the political hold of the Ampatuans over Maguindanao province.

In the memorandum it submitted at the end of the trial, the prosecution recalled the 1995 killing of Akas Paglala and his brother, Omar, as Akas was on his way to file his certificate of candidacy for mayor of Maganoy town. The suspect was Zaldy Ampatuan, the son of Andal Sr., at that time the mayor of Maganoy. The Paglalas did not file charges, and the Ampatuans went on to consolidate their hold over Maguindanao.

The prosecution presented witnesses who told the court that they heard the plan to kill Mangudadatu as it was being discussed months and days before the killing; saw Datu Unsay, on his way to Sitio Masalay, where the massacre happened; and saw him shoot at the victims himself and give instructions to bury the bodies and later, saw the backhoe burying the victims.

THEORY OF THE DEFENSE

The lawyers of Andal Jr., on the other hand, said not enough evidence had been presented to prove that it was Datu Unsay who killed the 58 victims. A memorandum filed by Unsay’s lawyer claimed that neither the bullets nor the guns used in the massacre were presented in court, nor were “trace evidence” such as fingerprints, footprints, gunshot residue or DNA, that would have corroborated the testimonies of the prosecution witnesses. The defense added that while the prosecution presented witnesses who saw the killing, these were “incentivized witnesses” who testified in exchange for money or favors, or were relatives of the Mangudadatus.

“[A] thorough review of the… evidence… would not let any man rest easy on the moral certainty that the accused committed the acts against him…,” the defense said in its memorandum, insisting that there was no evidence that would prove Datu Unsay killed the victims, nor that there was a conspiracy to do so.

The defense insisted that Datu Unsay arrived from the United States on Nov. 18, 2009; that on Nov. 23, the day of the massacre, he was at the Municipal Hall of Datu Unsay Municipality where he presided over a meeting with local officials which ended at 12:30 p.m., and that he voluntarily presented himself to the authorities on Nov. 26, 2009, to explain his side.

Like the prosecution, the defense argued that the case was politically-motivated: Mangudadatu was a political opponent of the Ampatuans, and some of the witnesses — like the Sangkis — were not only related to the Mangudadatus, they were also members of political clans in Mindanao. Rasul Sangki, one of the key witnesses of the prosecution, was vice mayor of Ampatuan town at the time of the massacre; by 2019 he was Ampatuan town mayor.

PRESUMPTION OF INNOCENCE

The constitutional presumption of innocence sets a high bar for the prosecution. The burden is on the accuser to prove the charges, not for the accused to prove his innocence. It is this bar that the defense invoked: the prosecution, it said, has not presented enough evidence to prove that Datu Unsay committed the crime beyond reasonable doubt.

The prosecution, on the other hand, says that the eyewitnesses they presented — who told the court they heard the massacre planned, saw Datu Unsay shoot the victims; and the doctors who testified that the victims died of gunshot wounds, are enough to convict.

GLOBAL ADVOCACY FOR JUSTICE

The press community has worked hard to keep the case alive on the news agenda.

Various media groups have joined their advocacies, administering funds for humanitarian assistance for families of the victims and scholarships for the orphans.

The UN-declared International Day to End Impunity (IDEI) for Crimes Against Journalists heightened activities each November since 2009, from candle-lighting to marches to memorial ceremonies in Masalay.

But the crime, the trial, and its outcome are the concern, not only of journalists and the families of the victims. It should be understood by every Filipino as an example of the use of violence as an instrument of politics. It is the same political arena that generates much of the news reported by journalists to the public.

Even without the 32 media victims in Ampatuan, the killing of journalists has long tainted the record of attacks and threats on press freedom in the Philippines. There are too many stories stained by blood and too many perpetrators of such violence are not even taken to courts.

It is therefore important to hear the decision on December 19. 

The lessons of the trial belong to the people so these can empower them to end impunity, to change the culture of politics and course of our national history.

For the victims, the decision should allow them finally to rest in peace, grant their loved ones a measure of justice, and with it, comfort and consolation after their long wait.

SIDEBAR:
THE ROLE OF PRIVATE PROSECUTORS IN A CRIMINAL TRIAL

In the Philippines, the offended party—or the private complainant— may intervene by counsel in the prosecution of crimes. The intervention is allowed only when the civil action for recovery of civil liabilities for the offenses charged is “instituted in the criminal action.” (Rule 110, Sec. 16)  Such phrase means that the offended parties did not waive their rights to the civil action; did not reserve their right to file a separate civil action; or, did not institute a separate civil action. (Rule 111, Sec. 1) The offended party’s counsel is called the “private prosecutor”.

Generally, a private prosecutor cannot try a criminal offense alone. A public prosecutor should be present in court as a criminal action must be prosecuted under his/her direction and control. (Rule 110, Sec. 5) A public prosecutor refers to a member of the National Prosecutorial Services of the Department of Justice.

There are only two instances when a private prosecutor may be authorized to prosecute a case without the presence of a public prosecutor under the Rules of Court: (1) when the latter has heavy work schedule or (2) there is a lack of public prosecutors. The authority must be in writing, signed by the Chief Prosecutor or the Regional State Prosecutor, and approved by the court. The private prosecutor, once authorized and approved, may continue the prosecution until the end of trial even if the public prosecutor is absent. (Rule 110, Sec. 5)

In 2017, the Supreme Court in its rules on Continuous Trial of Criminal Cases added another instance when the private prosecutor may be allowed to try the case without the public prosecutor—“in cases where only the civil liability is being prosecuted by a private prosecutor.”

Sources:
The Revised Rules of Criminal Procedure, Supreme Court of the Philippines
The Revised Guidelines for Continuous Trial of Criminal Cases, Supreme Court of the Philippines
Riano, W.B. (2016). Criminal Procedure (The Bar Lecture Series). Rex Book Store, Manila, Philippines.