April 2010 Archives

By Marie Yuvienco

WHEN 58 men and women were gunned down last November in Maguindanao, some of whom were shot point-blank in the face or in the most intimate parts, the outrage that followed was tempered with a cynicism that the killers would get away with murder, a sentiment that had ceased to become a mere figure of speech.

The suspects were members of the Ampatuan clan, local warlords, and the victims were the family and supporters of a rival political family, the Mangudadatus. The Ampatuans were known allies of Gloria Macapagal-Arroyo and widely suspected of delivering votes to her during the last presidential elections.

When authorities raided the Ampatuan residence, they found a cache of firearms fit for a private army. The ensuing investigation also cast a light on how the Ampatuans lived--a lifestyle fit for princes had the Constitution allowed the conferment of nobiliary or royal titles.

The legal wrangling that followed the arrest of Ampatuan family members, notably the governor of the Autonomous Region of Muslim Mindanao Zaldy Ampatuan, did not allay fears of railroading. Instead, it aroused further suspicion.

First, Malacañang declared that a state of rebellion was ongoing in Maguindanao, and pursuant to that executive finding, charges of rebellion were brought against the Ampatuans. Media wisely suspected that the Palace was finessing the case: Multiple murder--the charge first levied against the Ampatuans--is a non-bailable crime, meaning, the Ampatuans would be put in detention pending trial and not allowed to post bail. Rebellion, on the other hand, is a bailable offense. By declaring a state of rebellion in Maguindanao, Gloria Macapagal-Arroyo was suspected of laying the groundwork for a rebellion charge to stick. (Recently, the Quezon City Regional Trial Court before which the rebellion case was pending, dismissed the charge.) That was only the opening salvo.

Over the weekend, Justice Secretary Alberto Agra ordered the dropping of murder charges against Zaldy Ampatuan and his cousin Akmad Ampatuan, the former acting vice governor of Maguindanao. Agra instructed state prosecutors to drop the two Ampatuans from the information filed before the sala of Judge Jocelyn Solis-Reyes on the ground that he had not found any evidence of conspiracy implicating the Ampatuan cousins. Instead, he found more credible the two Ampatuans' claims that they were elsewhere when the massacre happened. Proof of that? Plane tickets and cell phone records on the governor's part, a medical mission someplace for the vice governor.

A few clarifications are in order. First, what is the Department of Justice's role in all this? It is the department's job, through its agents the fiscals and state prosecutors, who determine whether there is probable cause to charge someone in court with a crime.

At the fiscal level, the suspect is called a respondent. If they find the existence of probable cause, they will file the corresponding information with the criminal court; once filed, the respondent becomes the accused. It then becomes the court's duty to determine after trial whether the accused is innocent or guilty beyond reasonable doubt. Note that once an information is filed in court, only the judge can decide whether an information should be dismissed or whether to drop someone as an accused.

This much I can say. Alibi, as known--or should be known--to all lawyers, particularly by justice secretaries, is considered the weakest defense in criminal law. It consists of the accused claiming, oh no, I was nowhere near the scene of the crime when it happened. The most easily concocted, it is also the most easily shattered. All it takes to smash through an alibi is positive identification by one witness and that's it.

Moreover, alibi is a defense that is threshed out during trial itself. This is proper because it is only during cross-examination when the truth or falsity of the defense can be established. It is also during trial when witnesses can come forward to definitively establish the presence or absence of the accused at the scene of the crime.

In Zaldy and Akmad Ampatuan's case, the linchpin of their defense is the absence of any conspiracy. This is important because it is criminal law doctrine that when a conspiracy exists, the act of one is the act of all. But then again, there are different kinds of involvement in a crime: a principal, an accomplice, or an accessory. What Zaldy and Akmad are saying is that their alleged absence in the crime scene rules them out as principals by direct participation, that is, they weren't actually there and shot the victims. Their latest tactic is calculated to rule them out, as suspected masterminds, as principals by inducement.

It is difficult to conclude that no conspiracy exists when there just happened to be a back-hoe present at the scene of the murders to bury the evidence. It is difficult to conclude that no conspiracy exists when a battalion of heavily armed men just happened to be there when the Mangudadatu convoy passed by to the Comelec regional office to file a certificate of candidacy for governor. It is difficult to conclude that no conspiracy exists when 58 people happened to just die at the same place and at the same time.

When the trial court itself rules that, indeed, there is no evidence linking Zaldy and Akmad Ampatuan to the grisly massacre, then we will know that something is seriously amiss.