SEVEN YEARS AND STILL NO JUSTICE

Privilege Speech of Rep. Harry L. Roque delivered on 23 November 2016, House of Representatives, Quezon City

SEVEN YEARS AND STILL NO JUSTICE
(Maguindanao Massacre)

Esteemed colleagues of the House of Representatives, ladies and gentlemen:

I rise before you today on a matter of personal and collective privilege.

Exactly seven years ago today, an entourage of 58 persons aboard a convoy of cars and vans were stopped by armed men at a police checkpoint in Karuan, Ampatuan, Maguindanao. They were then herded to a remote hill in Sitio Masalay a few kilometers away.

When they reached the forlorn hill, the 58 captives met a gruesome death in the hands of a blood-thirsty band led by then Datu Unsay town mayor Andal Ampatuan Jr., scion and namesake of the state-backed local despot, Andal Ampatuan Sr., who, in his time, ruled Maguindanao with an iron fist.

Of the 58 victims, 32 were journalists and media workers; the journalists and media workers joined the convoy to cover an entourage of women relatives of then Buluan town vice mayor Esmael Mangudadatu and led by his wife Genalyn. They were on their way to the Commission on Election’s office in Shariff Aguak to file the vice mayor’s certificate of candidacy for provincial governor. It was a grisly end for the convoy, put to a finis by the private army of strongman Andal Ampatuan Sr. whose son and namesake, “Datu Unsay” Andal Jr., was also vying for the post and did not want to see a rival to the post in Mangudadatu.

Most of the victims were thrown into nearby pits earlier dug ostensibly for the purpose by a backhoe owned by the provincial government of Maguindanao. When police investigators finally reached the scene many hours later, they also found buried with some the victims in one of the pits a couple of cars from the ill-fated convoy.

Apparently, there had not been enough time for the murderous band to bury everything — a few bullet-riddled vans belonging to the convoy still stood near the pits, their doors open, mute witnesses to a carnage that could only have happened because the Arroyo administration helped maintain and arm a warlord family for its own political convenience.

This killing of the 32 journalists and media workers was the worst single attack on press freedom in recorded history. It was also the worst spate of election-related violence in the Philippines since the Martial Law era.

Too, it exposed the fractious nature of a local politics cultivated by national leaders; and the brazenness with which key members of the Ampatuan clan masterminded and carried out the massacre held unmistakable intimations of the power they wielded in the province, thanks to rotten transactional ties that had the “Hello Garci” scandal written all over it.

Today, seven years later, justice remains elusive for the families of the Maguindanao massacre victims. Not a single perpetrator has been convicted in court for the grisly crime.

As it stands, what has been called the “trial of the century” and a “litmus test” for the Philippine judicial system has become a slow turning and protracted one, mostly because of many procedural mistakes that could have been avoided had authorities only listened to good advice. That, and political machinations getting in the way of a strategic and rational approach to prosecution.

Against such backdrop, the National Union of Journalists of the Philippines (NUJP) recently noted that families of the massacre victims see their hopes that they will find a satisfactory closure to the case within their lifetimes dwindle rapidly.

The NUJP further observes that such a sorry state of the cause for justice fuels the situation of impunity in the country, where the state appears complicit by its failure to prosecute the killings of journalists, the incidences of which is one of the highest in the world.

Recounting the years

Seven years is a long time; it is one year longer than a presidential term. It should have been good enough time to see an effort bloom, or to show that a promise made is a promise fulfilled.

We cannot say the same thing with the cause for justice and attribution of accountability for the Maguindanao massacre.Some 197 persons had been charged for the massacre; four have died. Of the primary suspects, 28 bore the surname Ampatuan.Of the remaining 193 accused, 112 are detained and facing trial before Branch 221 of the Quezon City Regional Trial Court presided by Judge Jocelyn Solis-Reyes; 81 others have not been arrested – a situation that boggles the mind, considering that it has been seven years since the massacre happened.

The latest arrest of a massacre suspect was of Akad Macaton last September 3. Prior to Macaton, suspect Denga Mentol, also known as Tho Cario and/or Ronnie Ofong, was arrested on November 17, 2015.

Victims were denied the satisfaction of seeing the mastermind, 74-year old Andal Sr., being found guilty by the court of the charges, as the clan patriarch died of heart failure on July 17, 2015 while in detention.

Until now, his family continues to swear by his innocence. Justice would have meant affording him prompt prosecution, the chance to be confronted decivisely with the evidence of his.

Though he rode on unprecedented goodwill among the Filipino electorate, President Benigno Aquino III miserably failed to deliver on a campaign promise to secure justice for the Maguindanao massacre victims; his Secretary of Justice, Leila De Lima, failed the demands of the sound administration of justice as the prosecution of the case was left to every whim and caprice of political interests that hijacked the good work of public prosecutors. To begin with, she failed to bring scientific rationality to case management, simply continuing the unwieldy system set in place by her predecessor.

We could have learned from the practice of international criminal tribunals against the shotgun prosecution of so many accused, but she refused to take counsel.

Worse, she allowed a private prosecutor – for considerations about which we do not know – to take over the role of an unaccountable prosecutor general, undermining every so often the good judgment of the Department of Justice’s own state prosecutors.

Lessons from the tragedy

As a lawyer for the families of victims of the massacre – most of whom are represented today in this hall – I tried my best to advance their cause, despite the many stumbling blocks along the way.

An early setback to our quest for justice was the death of a key witness to the massacre, Suwaib Upham, whose application into the Witness Protection Program (WPP) we tried to facilitate.

Upham, whom we called “Jesse,” was shot dead shortly after 8 p.m. on June 14, 2010, in Parang municipality, Maguindanao, after waiting for months for the DOJ to admit him to the WPP.

A member of the Ampatuan’s private army militia, Jesse had participated in the massacre but agreed to testify against the Ampatuans in exchange for government protection. He had agreed to testify against members of the powerful Ampatuan family, who were accused in the killings, if afforded witness protection, a request that the DOJ, then under Arroyo appointee Agnes Devenadera, simply sat on.

Faced with the prospects of having to litigate the case for many, many years, I and my colleagues at the Center for International proposed that the trial court adopt the “First In, First Out (FIFO) rule. Under the FIFO, the court may already render judgment on the case of any accused over whom all evidence – for and against – has already been heard.

The rationale is that the families of victims and the accused do not have to wait for the evidence concerning 197 Accused to be heard by the court to achieve justice, which could take a long, long, long time.

This is the fair rule respecting due process for both the families of the victim and the Accused. Besides, there is nothing in the Rules that prohibits the trial court from so moving; but there is every reason, in the name of procedural and substantive due process for both the Accused and the heirs of the victims of the Maguindanao massacre, to finish the trial as soon as possible.

The FIFO was meant to avoid the constant recall to the witness stand of all witnesses already presented each time there is a newly arrested and newly arraigned Accused. Assuming that each of at the time 103 unarrested Accused claims the right to cross-examine their Accusers one by one, by this measure, it would take a new series of cross-examinations at least 200 years to complete.

Indeed, none of the international tribunals of contemporary times – even those for cases of mass slaughter where the victims number by the hundreds, if not by the thousands – has resorted to wholesale prosecution of suspects.

The trial court just could not appreciate our point. Secretary De Lima’s favorite private prosecutors did not join our motion. Worse, they even misread it and claimed that it was meant to give the Accused an escape clause by instituting a system calculated to dilute the prosecution’s case for murder.

Mercifully, the Supreme Court subsequently adopted our proposal by issuing a Resolution to institutionalize it and to direct the trial court to implement it. With FIFO set in place, and assuming the trial court refuses to abide by the defense’s dilatory tactics, we should see a few convictions in the next two years.

To stress, the FIFO is not even a government initiative. It is a measure proposed by a civil society organization –the Center for International Law. And without the support of Deputy Regional Prosecutor Peter L. Medalle, Senior State Assistant State Prosecutor Ma. Emilia L. Victorio, and Assistant State Prosecutor Susan Villanueva, we would have been unable to file the motion in court.

We also filed cases with the Office of the Ombudsman against the Ampatuan clan’s plunder of the public coffers of billions of pesos in their many years of murderous reign in political power. Six years after we filed our complaints on behalf of our clients, we have yet to hear of any action from the Office of the Ombudsman.

Also, we caught the Anti-Money Laundering Council doing nothing despite many years of voluminous bank transactions by the Ampatuans that should have been red-flagged early on. Thus, we share in President Rodrigo Roa Duterte’s own frustrations with the AMLC’s discharge of its duties and functions.The only semblance of immediate justice we have managed to win for our clients under the circumstances is a decision by the National Police Commission last year to dismiss from the service 21 police officers linked to the massacre.

Impunity continues because there has been no effective prosecution of the perpetrators. It is tempting to say that a new Task Force on Media Security created by President Duterte to investigate the killings of journalists will go the way of all such task forces created by past administrations that have come and gone.

But such is indeed the challenge to the Duterte administration; Effective remedy under the international law engages both the obligation to investigate as well as to bring perpetrators promptly to justice. The last thing we need today is yet another administrative monstrosity that does nothing but add yet another layer to an already complex and weighed down government investigative machinery.

What should not be forgotten is that the Maguindanao massacre is a slaughter of civilians by State agents; thus, it is class of gross human rights violations for which the State must answer, on top of the individual criminal liability of the perpetrators themselves.

Under international law, the Republic of the Philippines has a duty to provide compensation and satisfaction to the victims and their families. According to current international law, satisfaction covers public acknowledgement of the State’s wrongdoing, along with concrete steps to repair the relationship between the victim and the State and the civil society as a whole.

It embraces symbolic measures taken for moral and collective reparation and arises in part from the duty to remember. This should include:

a) verification of the facts and full public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others;

b) the search for bodies of those killed or disappeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities;

c) an official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of persons closely associated with the victim;

d) apology, including public acknowledgement of the facts and acceptance of responsibility;

e) judicial or administrative sanctions against persons responsible for violation of memory;

f) commemoration and tributes to the victims;

g) inclusion of an accurate account of the violations that have occurred in international human rights and humanitarian law training and in educational materials at all levels;

h) preventing the recurrence of violations.[1]

Thus, at the very least, the state should institute a day of commemoration for the victims of the massacre, and to expand the commemoration to embrace all other victims of extralegal killings.But the state should not wait for the trial court to finish the murder case. It should already institute legal measures to ensure that the victims of the massacre are given reparations, as a gesture recognizing its complicity in the killings, as well as its firm resolve not to allow it to happen again.

We hope the administration of President Duterte will succeed where the past administrations failed, that is, to provide effective remedy to victims of extralegal killings, of which the Maguindanao Massacre is to date, its most egregious example.