MaNiGoNG
BaGoNG TaoN
Thursday, December 31, 2009
Wednesday, December 23, 2009
Thursday, December 17, 2009
COURTing DANGER (When court judicial officers may disqualify themselves from trying a case)
By Siesta-friendly
Being a judicial officer can sometimes be life-threatening. Just ask Judge Luisito Cortez who ‘won’ the raffle of the multiple murder case – 57 innocent fatalities so far - against massacre ‘suspect’ and Datu Unsay mayor Andal Ampatuan Jr. For obvious reasons, said ‘winning’ judge filed a Motion to Inhibit himself from trying the case, citing security reasons (as well as a heavy workload).
The Ampatuans are scaring e-v-e-r-y-o-n-e. People are either hiding, running away or coming out in the open with what they know. Even their arms dealer has come out confessing his dealings with the Ampatuans when some of his supply surfaced from the Ampatuan cache. While a jailed assassin has just given an interview confessing to killing no less than 100 people for the Ampatuans.
Fear of the Ampatuans has spread from the
But while we await the result of the next case raffle, let’s look into the justifiable reasons a judicial officer may cite to disqualify himself/herself from a case he is otherwise qualified to judge.
Disqualification Of Judicial Officers
The applicable rule (cited below from the Revised Rules of Court) “contemplates two kinds of inhibitions – compulsory and voluntary. The first paragraph provides that compulsory disqualification conclusively presumes that the judge cannot actively or impartially sit on a case. The second paragraph, in turn, leaves to the judge’s discretion whether he should desist from sitting in a case for other just and valid reasons. A judge, however, does not enjoy [a] wide latitude in the exercise of his discretion to inhibit himself from hearing a case, as the inhibition must be for just and valid causes.”[1]
Rule 137.
Sec. 1. Disqualification of judges. - No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.
Voluntary inhibition under Sec. 1 Rule 137 seems aimed to prevent bias or prejudice as explained in Pimentel v. Salonga[2] -
“A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him. That passion on the part of a judge may be generated because of serious charges of misconduct against him by a suitor or his counsel, is not altogether remote. He is a man, subject to the frailties of other men. He should, therefore, exercise great care and caution before making up his mind to act or withdraw from a suit where that party or counsel is involved. He could in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved therein. On the result of his decisions to sit or not to sit may depend to a great extent the all-important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice.”
Judge Cortez is voluntarily inhibiting himself on the basis of the 2nd paragraph of Section 1. But not to prevent any suspicion of bias or prejudice. It is for security reasons. And the massacre of his family does seem a just and valid reason for a judge to inhibit himself from a case involving an Ampatuan (or someone as sinister). But in the absence of actual death threats against him, his family or staff, it might have been premature for the good judge to inhibit himself from the multiple murder case.
However Judge Cortez cannot be said to be one who is easily scared. He is trying “another celebrated case—multiple murder against former Abra Gov. Vicente Valera for the killing of Rep. Luis Versamin and his bodyguard in 2006.” While handling said latter case, he has admitted to having received death threats.
Perhaps the Supreme Court will not punish Judge Cortez’s voluntary inhibition on the ground that he does have a heavy workload which already includes other security-threatening sensational cases.
Whatever happens, and despite the apparent reluctance of the remaining judges to try the Ampatuans, the Supreme Court will ensure that the people’s faith in the independence of our courts of justice is preserved. When innocents are massacred, the courts remain as the only place where they may get justice. Judges may fear for their lives but the people look to them to ensure that they can live theirs in peace. Let them be given the protection that they need, but the wheels of justice should still turn if we do not wish to surrender to murderers and their ilk whose currency is fear and intimidation.
[1] Alejo vs. The Honorable Judge Erlinda Pestaño-Buted, G.R. Nos. 154150-51, December 10, 2007, citing People vs. Kho, G.R. No. 139381, April 20, 2001, 357 SCRA 290.
[2] G.R. No. 27934, September 18, 1967, 21 SCRA 160.
Thursday, December 10, 2009
IN VAIN? (Setting up the case against the perpetrators of the Maguindanao massacre)
By Siesta-friendly
It is not surprising that the evidence-gathering against the perpetrators of the Massacre in Maguindanao is poised to set up nightmarish situations for forensics experts, prosecutors and whatever neutral law enforcement personnel (i.e, not one of the possibly 200 suspects in the massacre nor in the Ampatuan payroll) may still exist in the province.
Just read the excerpt below from the Report of the Humanitarian and Fact-Finding Mission to Maguindanao and you’ll now what we mean.
The Fact-Finding team comprised members of the Freedom Fund for Filipino Journalists, National Union of Journalists of the
“OBSERVATIONS OF THE TEAM
- Poor handling and contamination of the massacre site
Five days after the massacre, when the Fact-Finding Team visited on November 28, the scene of the crime remained heavily littered with rubbish, and possibly the personal effects and the remains of the victims. There was even what appeared to be a tuft of long hair on the ground that could have been a piece of scalp. The police scene of crime operatives (SOCO) had placed yellow police line tape only around the immediate perimeter of the massacre site, but not on the road leading to it. The site did not look like a protected scene at all. The Team even saw used SIM cards – from the suspects or from responding police and soldiers- on the ground.
The retrieval team from the military and police was clearly assigned to achieve only one task: get the bodies out. There was little or no consideration given to preserving the evidence. There was little or no consideration given to avoid the contamination of the crime scene.
- Poor handling of the remains
The use of a backhoe (not the one allegedly used by the accused) compromised the site and the remains. In addition, the backhoe may have ended up adding to the physical trauma on the bodies. An indication of the carelessness shown in handling the bodies was the fluctuating body count that the authorities gave. For a while, the authorities could not agree on how many bodies there were. Report of the Fact-Finding Team to Maguindanao of the FFFJ, NUJP, MindaNews, CMFR, PCIJ 8
In interviews, members of the retrieval team from the military and police admitted that they had to rush their work and pull out of the site before dark set in because the situation on the first four days was still tenuous, and they had wanted to avoid possible retaliation from the suspects. The retrieval team had chosen to use a backhoe, instead of shovels, to retrieve the bodies precisely to rush the effort.
- The apparent preference for testimonial rather than physical evidence
The authorities have been gathering a lot of testimonies, but showed less emphasis to securing physical evidence. Three affidavits submitted by prosecutors against the Ampatuans were allegedly from the passengers of the last vehicle that got separated from the convoy. Their affidavits had too many phrases in common, such as “I and my companions went out of the car to urinate” and “We were threatened to see Datu Unsay approaching the first vehicle.”
Some affidavits submitted to the prosecutors stated that the diggings and pit where the bodies were buried had been prepared a week earlier, or days before the Nov. 23, 2009 massacre.
According to ground command C/Supt Khu, only one cell phone was recovered from the massacre site, and no other equipment or gadget that the media workers and the other fatalities might have carried with them.
- CAFGU Detachment, “MNLF Camp” near the site
The victims’ convoy was stopped by the suspects just about 300 meters from a detachment of the CAFGU (Civilian Armed Forces Geographical Units that are under the command of the military). During the initial military search, the CAFGUs claimed that no such convoy had passed by, even though the blockade occurred in a dip in the road clearly visible to the CAFGU detachment. The army cadre in charge of the detachment discreetly signaled to searchers that the convoy had turned into the side road. The CAFGUs are under interrogation.
While both are militia forces, CAFGUs and CVOs (civilian volunteer organization) have different command structures. CVOs, including barangay tanods, are under the command of local government officials.
Just 50 meters down the road leading to the massacre site there is an area marked as “MNLF (Moro National Liberation Front) camp.” It was empty when the Fact-Finding Team arrived but the adjacent houses looked well kept.
- Vehicle/s allegedly used by suspects still unaccounted for
Investigators said the suspects also used a Nissan Frontier pickup with police markings. One such police vehicle issued to the Maguindanao police is still unaccounted for. This jibes with claims by the Mangudadatus’ witnesses that police vehicles were involved in the blockade. Report of the Fact-Finding Team to Maguindanao of the FFFJ, NUJP, MindaNews, CMFR, PCIJ 9
- Fear grips residents near the site, and seems to prevent them from speaking out
There are many houses, even a mosque, located around the massacre site. Because the site is on a hilltop, anyone in those houses would have seen the massacre, assuming that they were there at the time. Whether or not they would be willing to talk about what they could have seen is another question.
- Enormous weapons arsenal of the Ampatuans not fully confiscated
The Ampatuans had surrendered a lot of old firearms such as Garands and Carbines but are known to have large arsenals of modern weapons. The initial police investigation showed that the victims were shot by six Armalite rifles, an M-14 rifle, an AK-47, and a shotgun. The police reports made no mention of injuries caused by a Garand or a Carbine.
The police had seized two heavy armored cars owned by the Ampatuans that were armed with multiple 50-caliber machine guns. The vehicles look like World War 2-type half-tracks [except they have wheels] that have half-inch armor plates. These armored cars were painted in camouflage and stamped with the words Pulisya and Shariff Aguak or Maguindanao police, even though they are not official police vehicles. In fact they do not even have any attachment points for license plates. It is not clear if appropriate charges were filed against the Ampatuans for these armored cars. The police also say that the 50-caliber machine guns had tampered serial numbers.
- Road leads to nowhere?
The road to the massacre site is a road for four-wheel vehicles. Yet the road leads to nowhere, and ends at the massacre site. Also, no one in the area clearly owns any vehicle. The pit where the bodies were buried might have been dug up days before the massacre occurred, according to the retrieval team members.
- Imperative to disarm all clans, political families in the area
Apart from the Ampatuans, the Mangudadatus are widely held to be in command of their own private army. The two families were, until last year, close allies. One journalist quotes some residents as saying, “Walang pinagkaiba ang mga iyan.” Toto Mangudadatu filed his certificate of candidacy escorted by scores of armed escorts, according to television news reports of the event. In a visit to his family house in
- Missing or still undisclosed documents
More than a week after the massacre, and days after the Department of Justice had reportedly filed seven counts of murder charges against Andal Ampatuan Jr., the authorities have yet to publicly release vital documents, including the police case Report of the Fact-Finding Team to Maguindanao of the FFFJ, NUJP, MindaNews, CMFR, PCIJ 10 referral report (which should contain a summary of the evidence and findings of the investigator, and serve as basis for the prosecution of the case/s).
As important, there are no publicly available copies of any other presidential issuances covering the grant of so-called “blanket authority” for Interior and Local Government Secretary Ronaldo Puno to deal with the “state of emergency” in Maguindanao, Sultan Kudarat, and
The “blanket authority” granted to Puno is not contained in any presidential issuances on record. It was just discussed in a press release of the Office of the Press Secretary and in press statements of Remonde.
- Government resources used to fly Andal Ampatuan Jr. and his lawyer Sigfried Fortun
The WPP’s Team said government used an Air Force aircraft to fly in Ampatuan’s lawyer Sigfried Fortun from
- Government response to the situation has not fully eased the anxiety and fear of the residents and media workers in the affected areas; the threats to the safety and security of the communities linger, especially with the forthcoming elections likely to fire up the tension between partisan rivals and political clans
National media coverage of the situation has inordinately focused on the rivalry for political power between the clans, inchoate images of the tragedy, and disjointed statements from the investigators, Malacanang officials, and political partisans. Little attention has been given to the gaps in the work of the police, investigators, and prosecutors.
The massacre claimed nearly an entire generation of journalists from the small print and broadcast communities of General Santos,
Massacre, private armies, political alliances, election fraud, press freedom, and now, martial law. Will our easily forgetful and forgiving people lead to the eventual (and widely suspected) exoneration of the perpetrators, especially, the masterminds of the massacre?
Thursday, December 3, 2009
NOW, WHAT? (Despite the massacre, and with more than a week passing, why can’t a single Ampatuan even be suspended?)
By Siesta-friendly
Or maybe it is because of the massacre they seem to be capable of that the Ampatuans are being treated with relative kid gloves. The Ampatuans’ notoriety indicates that the executions of November 23, 2009 are not an isolated incident and might just be the most they’ve accomplished in 1 day.
To compare, Ted Failon was arrested within hours after his wife was shot. It took 3 days (of continuous news barrage) before Mayor Ampatuan was arrested. Without the media focus, it might have definitely taken far longer. What if no media member was a victim?
The evidence are incriminating as they are mounting: mobile phone accounts, eyewitness accounts, political rivalry, known militiamen, unbelievable lack of police presence, even the use of a provincial government’s backhoe.
For a closer understanding of the cruelty done to the 50 or so victims – including about 30 journalists – pictures taken by the Commission on Human Rights have been posted on PCIJ's Photo Gallery.
Of course the murder trial will take a while, especially with a powerful and apparently scary clan of suspects, but why aren’t preventive measures being made?
How does one relieve an area’s tension except to rid the area of the cause of the tension? Why haven’t the Ampatuans been relieved, if only temporarily, of their duties?
Local Government Code
Are our government lawyers so unimaginative as not to come up with a single cause to even suspend at least one Ampatuan?
“SEC. 60. Grounds for Disciplinary Actions. - An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:
(a) Disloyalty to the Republic of the
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court.”
“SEC. 63. Preventive Suspension. - (a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city;
(2) By the governor, if the respondent is an elective official of a component city or municipality; or
(3) By the mayor, if the respondent is an elective official of the barangay.
(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence …” (emphasis supplied)
What are they waiting for? Members of the local police have been found to be complicit. The shooters have scattered; witnesses, victims’ families, even prosecutors and local judges, are scared. There is so much to prevent. Why isn’t it being done on the local government level?
We’ve had more than a country’s fair share of unbelievable government shams, scams and scandals. But this is far more than that. This is a massacre. With dozens of innocent people involved: journalists, cameramen, passing motorists at the wrong place and time.
The perpetrators’ brutality should force us not to let up in pursuing all the issues and personalities involved – directly or indirectly – to ensure we don’t lose what little humanity we have left.
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