COMMENTARY: AMPATUAN'S TRAVESTY
The greatest travesty of the Ampatuan massacre is not in how slow the wheels of justice grind in the Philippines, but right on the get go when the prosecutors decided to indict all the accused as direct participants in the commission of the crime of murder. The umbrella approach of the prosecutors to indict all accused as participants in a conspiracy to commit the massacre is a sure-fire formula that would either delay or frustrate the quest for justice. Although President Aquino has repeatedly said that the Ampatuan case would be a litmus test of the Philippine judiciary's ability to dispense justice, the government has not shown a greater commitment of its resources and attention to ensure the success of the prosecution of those responsible for the massacre.
PHILIPPINES, DECEMBER 2, 2013 (AnUncomplicatedMind.com) Posted by Joe Rivera - The Ampatuan massacre in Maguindanao on November 23, 2009 will probably go down in history as the bloodiest of all political killings in the Philippines.
Four years and counting since the hearing started on January 6, 2010, the pursuit of justice for the victims of the massacre remains as elusive as the prospect of a trial date.
The completion of the trial has even become the running joke around legal circles that it might happen after 200 years.
Maguindanao massacre, November 23, 2009. Photo courtesy of AFP/Mark Navales.
The greatest travesty of the Ampatuan massacre is not in how slow the wheels of justice grind in the Philippines, but right on the get go when the prosecutors decided to indict all the accused as direct participants in the commission of the crime of murder.
As the Philippine Department of Justice (DOJ) said during the laying of charges against the accused: “There is direct evidence that [the accused] agreed to commit the crime. Their acts and the attendant circumstances surrounding the commission of the crime unveil a common aim that would make all of them co-principals in the crime committed.”
The DOJ panel that investigated the crime concluded that the massacre was the result of a conspiracy, that included Andal Ampatuan Sr., head of a Muslim clan and former governor of Maguindanao, his two sons, Zaldy Ampatuan, the governor of the Autonomous Muslim Region of Mindanao, and Andal Ampatuan Jr., mayor of the town that bears the family’s name, the clan’s private army and political supporters, and members of the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP).
All together, the number of accused totalled to 197, whom according to the DOJ, participated in the planning and massacre. The total number of victims is 57, which includes 32 journalists, the largest number of media workers killed in a single incident.
What seems wrong in this picture?
The notion of a conspiracy beguiles the mind.
All the 197 accused, including the drivers, the Ampatuans’ lowly servants, and the backhoe operator who dug the ground where the victims were buried, knew what the plan was, that they had a unity of purpose, and they executed the plan to achieve their objective.
It’s not therefore just the principals, the Ampatuan family, apparently the mastermind of this heinous crime who are criminally culpable, but each one of the 197 accused.
In a crime where there are principals, accomplices and accessories, the degree of punishment varies in accordance with the degree of their contribution in the accomplishment of the crime.
However, when there is conspiracy, there will no longer be a distinction as to whether a person acted as a principal, accomplice or accessory, because when there is conspiracy, the criminal liability of all will be the same, because the act of one is the act of all.
The umbrella approach of the prosecutors to indict all accused as participants in a conspiracy to commit the massacre is a sure-fire formula that would either delay or frustrate the quest for justice.
Delay will be achieved by lawyers for the defence as they can bring a deluge of motions after motions, manifestations, oppositions, including bail petitions, which to date have numbered to 750 in all. Filing an endless stream of such motions seems to be at the heart of the Ampatuans’ legal defense.
This is more than enough to slow down and impede the trial. Legal stalling tactics by the lawyers of the accused, a fractured prosecution, and a slow-moving court have conspired against a speedy trial.
There are also numerous witnesses who have to be interviewed and examined, and just by the number alone would take the case to completion after 200 years, as one former Philippine senator conjectured.
Some witnesses will be intimidated, threatened and frightened from testifying, and the fact is, some witnesses have already been killed or have died.
In retrospect, the Nuremberg Trial which presided over the worst case of genocide in the 20th century prosecuted only 14 of the highest-ranking Nazis. Prosecuting all the 197 accused in the Ampatuan massacre is by all means a blueprint for impunity. This will ensure that the prosecution will never end.
While the Ampatuan prosecutors are at it, i.e., establishing the conspiracy of 197 accused, why didn’t they include former President Gloria Macapagal-Arroyo and her Secretary of Defence Norberto Gonzales who were rumored as part of the over-all conspiracy?
After all, the Ampatuan massacre benefited Mrs. Arroyo as it made it easier for her to rig the election results in the region and it also gave her the legal excuse to declare martial law in Maguindanao during that time.
Senator Miriam Defensor Santiago even remarked about an alleged sinister plan [unproven] to extend martial law beyond the province of Maguindanao to ensure that President Arroyo stay in power.
The current administration under President Noynoy Aquino has maintained that they cannot intervene directly to expedite the Ampatuan trial on the ground of constitutional separation of powers among the executive, legislative and judicial branches of government.
Although President Aquino has repeatedly said that the Ampatuan case would be a litmus test of the Philippine judiciary's ability to dispense justice, the government has not shown a greater commitment of its resources and attention to ensure the success of the prosecution of those responsible for the massacre.
The lack of progress in the Ampatuan prosecution only confirms the consistent and disturbing pattern for the justice system’s treatment of media killings in the Philippines: a journalist is killed, local law enforcement officials are either lax or complicit, witnesses and complainants are intimidated, bribed or killed, and lawyers for the accused employ delaying tactics that would break the will and resources of the victims’ families.
The end result is very disquieting – the case goes unresolved and the culture of impunity is thus reinforced.
This shows why the Philippines has ranked third worst on the 2012 Committee to Protect Journalists (CPJ) Impunity Index, which calculates unsolved media killings as a percentage of each country's population.
Despite the Philippines' tradition of press freedom, the country's dysfunctional and corrupt criminal justice system has failed to bring justice in 55 journalist murders in the past decade.
Infographic on the Ampatuan massacre trial overview, courtesy of cmfrphilippines. Click link to view "Journalists to commemorate 4th anniversary of Ampatuan Massacre"
The Aquino government can do something to ensure that those who perpetrated the Ampatuan massacre are brought to trial in a fashion that dispenses swift justice for the victims and their grieving families.
To keep invoking the separation of powers between the main branches of government is a lame excuse, and only reinforces the prevailing culture of impunity.
President Aquino’s continuing failure to state how he intends to finish the prosecution of the Ampatuan massacre means he lacks the political will to punish those who violate freedom of the press and the right to life.
For him to correct this charade of justice, President Aquino can, for starters, ask the Supreme Court to designate the Quezon City Regional Trial Court hearing the case a “special court” with no other duties beyond the Maguindanao massacre hearings.
The special court then can start the prosecution and trial of the principals in the case (i.e., members of the Ampatuan clan), and do away with the notion of a conspiracy, even if it would mean dismissing the charges against those who were co-accused but apparently played a minor role in the massacre.
All the 62 policemen and military personnel involved in the massacre should be dismissed from service immediately, the charges against them can be dropped or they can be indicted for charges appropriate for their role in the massacre.
One last but immediate measure President Aquino can do for the families of the victims of the massacre is to provide them with compensation for the death of the victims and failure of the government in its obligation to protect and promote the right of the victims to live.
This is nothing new. Government compensation for crime victims dates back to the ancient Babylonian Code of Hammurabi, which is considered the oldest known written body of criminal law.
Victims of crimes ought to be compensated by the government charged with the responsibility to protect them when it failed to do so.
Many countries today have some form of compensation scheme that pays reparation to victims of crimes for the failure of government to protect them. This compensation becomes the means of repairing the harm left in the wake of crime.
In at least two cases before the United Nations Human Rights Committee, the Philippines was found guilty of breaching its obligation to protect and promote the right to life for its failure to reasonably investigate and prosecute the killings of Navy Ensign Philip Pestano and Eden Marcellana.
The UN Committee declared that the Philippine government owes to pay compensation to these two victims of extrajudicial killings.
Upon hearing of a Hong Kong woman, who was shot in the face during the deadly 2010 hostage crisis in the Philippines, that she needed to have surgery on her left jaw, President Aquino has agreed to give an undisclosed amount to help her defray the cost of the operation.
If Noynoy’s heart bleeds for a Hong Kong citizen, what then should prevent him from also feeling the pain and suffering of the families of the victims of the Ampatuan massacre, his very own compatriots?
There is ample time left in President Aquino’s term to reverse the travesty and shame that the Ampatuan trial has brought upon the justice system.
But only if his heart also bleeds for his fellow Filipinos, if he can feel the anguish of the families of the victims, and if he will listen to their cry for justice.
JOE RIVERA IS A RETIRED LAWYER,
A TORONTO RESIDENT AND A
PHILIPPINE NEWS DAILY COLUMNIST
ON POLITICS, CULTURE AND CURRENT EVENTS
IN CANADA AND THE PHILIPPINES
HIS BLOG: An Uncomplicated Mind
Chief News Editor: Sol Jose Vanzi
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