MANILA, Philippines - Former Datu Unsay, Maguindanao Mayor Andal Ampatuan, Jr. has asked the Supreme Court (SC) to direct the Department of Justice (DOJ) to indict and prosecute prosecution star witness Kenny Dalandag as an accused in the criminal cases.

Amapatuan Jr. is the principal accused in the murder of 57 people in Masalay, Ampatuan, Maguindanao on November 23, 2009 now known as the Maguindanao massacre.

In a 39-page Appeal by Certiorari filed with the high court last July 4, Ampatuan asked for the immediate issuance of a temporary restraining order and/or writ of preliminary injunction against Dalandag's scheduled presentation before the Quezon City Regional Trial Court (RTC) Branch 221 on Wednesday, July 6, and Thursday, July 7, and in subsequent trial dates pending the resolution of Ampatuan's  appeal.

Branch 221 has just been designated a special court by the high tribunal, dedicated to the Maguindanao massacre cases.

Ampatuan assailed an order dated June 27, 2011 of the Manila RTC Branch 26 which dismissed his application of Mandamus filed in December 2010 that sought to compel respondents "to perform that duty specifically enjoined by law."

"The questioned Order is contrary to existing jurisprudence and is not supported by the records of the case. The court a quo's manifest error is readily apparent upon perusal of the questioned Order as it shirks from its responsibility to adjudicate on the question of respondents' duty to prosecute admitted felons," the appeal read.

Ampatuan insisted that Dalandag's written confession of having been a party to the crime was sufficient basis to indict him and include him in the preliminary investigation, consistent with Section 2 of the Rules of Court that "it is the duty of the prosecutor to prepare the information against a person whenever there is probable cause against him."

"With the admission of Dalandag that his complicity in the Maguindanao Massacre, the applicable law and jurisprudence come into play. Petitioner maintains that the Rules mandate that an Information be filed against all persons who appear to be responsible for the offense involved such as Dalandag," the appeal read.

"A scrutiny of the records of the preliminary investigation of the Maguindanao massacre shows that Dalandag, by his own admission, was present during the alleged planning of the Maguindanao Massacre on November 22, 2009 and one of the armed men who executed the plan and who participated in the killing of 57 individuals in Masalay on November 23, 2009."

Ampatuan cited the following admissions by Dalandag in his two affidavits:

(a) he (Dalandag) was present in the November 22, 2009 meeting that allegedly took place in the residence of Andal Ampatuan, Sr. in Bagong, Shariff Aguak, Maguindanao where the supposed plan to kill members of the Mangudadatu political clan to file the certificate of candidacy of Esmael Mangudadatu, incumbent governor of the province, was hatched;

(b) he (Dalandag) was present and manned the checkpoint in Sitio Matagabong where the Mangudadatu convoy was expected to pass, along with the other victims of the grisly killings;

(c) he (Dalandag) owned up to being present when the convoy was flagged down in Sitio Malating "preparatory to their being killed";

(d) he (Dalandag) then acknowledged being present when the victims were killed.

"The foregoing admissions are more than sufficient evidence to establish probable cause against Dalandag," the appeal read.

On February 5, 2010, the DOJ panel of prosecutors who handled the preliminary investigation issued a resolution indicting 196 individuals for multiple murder.

On October 14, 2010, Ampatuan wrote respondents requesting Dalandag's inclusion in the informations as one of the accused.

On November 11, 2010, Secretary de Lima denied the request.

"This Department is not authorized under Rule 112 of the Revised Rules of Criminal Procedure to motu proprio investigate, subsequently, indict witness Dalandag in the absence of a complaint-affidavit," de Lima's letter read.

Thus, the filing of a Petition for Mandamus by Ampatuan before the Manila RTC.

In Wednesday's hearing, QC RTC Branch 221 Judge Jocelyn Solis-Reyes deferred Dalandag's scheduled testimony as a matter of judicial courtesy because of the filing of Ampatuan's appeal before the High Court.

Prosecution lawyer Harry Roque, meantime, said Solis-Reyes should have allowed Dalandag to be presented at the witness stand in the absence of a TRO from the high court.

"Mali yun. Number 1, walang TRO at sa En Banc resolution ng Supreme Court designating her as a special court, nakasulat na it is within her powers to decide on these kinds of issues," Roque told ABS-CBN News.

"Pero naiintidihan ko si judge dahil miyembro siya ng hudikatura and she's just giving deference to the SC to rule on the application for TRO of Andal Jr. But our position is, dahil walang TRO, walang disrespect if Kenny Dalandag is allowed to the take the stand," he added.