Agra says conspiracy not established; LP sees wider plot

MANILA, Philippines (3rd UPDATE) - State prosecutors handling the Maguindanao massacre case assailed the decision of Acting Justice Secretary Alberto Agra absolving 2 leaders of the Ampatuan clan from the crime.

In a statement read at the steps of the entrance to Department of Justice (DOJ) building in Padre Faura, Manila, Chief State Prosecutor Claro Arellano urged Agra to revisit his resolution absolving Zaldy Ampatuan and Akmad "Tato" Ampatuan from the murder raps in connection with the November 23, 2009 killings of 57 people, including 30 media workers, in Maguindanao.

"The Department of Justice is supposed to be the sword and shield of law and order. We are deeply concerned that the resolution would all the more convince, along with skeptical parties, that our criminal justice system is impotent when the accused are politically influential," Arellano, who took over from Jovencito Zuño last February, said. 

"We pray and hope that despite difficulties and setbacks, justice will ultimately be served to the victims of this tragedy. It is along this line that we earnestly and respectfully request Acting Secretary Agra to revisit his resolution. Otherwise, we dishonor the primary reason for which our institution exists and its very name, the Department of Justice," he added.  

"We, being in the frontline, still believe with due respect that there is probable cause to indict the two accused," the panel of prosecutors who built the case said in a statement.

"As professional career prosecutors, it pains us to publicly disagree with the resolution of the justice secretary."

In a surprise move that provoked widespread condemnation and street protests, Agra at the weekend ordered murder charges be dropped against the two, citing alibis they presented.

Four other members of the powerful Ampatuan clan continue to face murder charges.

'It's now up to Judge Reyes'

In a dzMM interview with Ted Failon and Pinky Webb, assistant chief state prosecutor Richard Fadullon criticized Agra's decision, saying there was already a finding of probable cause against the 2 Ampatuans, so it should now be left for the Presiding Judge Solis Reyes to assess the evidence against the accused.

Fadullon said that Zaldy Ampatuan, governor of the Autonomous Region in Muslim Mindanao (ARMM), and Akmad Ampatuan, mayor of the town of Mamasapano, were identified by a witness as having taken part in a November 22 meeting where the plan to stop the Mangudadatus from filing a certificate of candidacy was decided. 

"May witness na nagsabi na during the meeting of the clan nung Nov. 22, it was already agreed na gagawin yung pagharang at pagpatay. This happened in Maguindanao...in the house of former Maguindanao Gov. Andal Ampatuan," Fadullon said.

Weakest evidence is alibi

He assailed Agra's decision to absolve Zaldy Ampatuan based on the governor's alibi that he was not in Maguindanao on November 23 when the massacre took place.

"The strongest evidence is positive identification. Ang pinaka weak is alibi. Ang ebidensya po ng prosecution dito is that meron pong nakakita kay ARMM governor doon po sa pagpulong nong Nov. 22. So hindi po namin sinasabi na wala po sya nung November 23 because, in fact, he was out of Maguindanao at that time. Ang sinasabi po namin is hindi kailangan na ang lahat ay mag-take part sa act ng pag commit ng crime. Ang pingatataka namin is yung sinasabi  nila na yung positive identification is now the weakest because it was overturned by alibi. Probable cause lang ang pwede mag indict sa isang tao. Ang nangyari sa resolution na ito, parang sinasabi na kulang ang ebidensya for him to be convicted. That is not for us to say, that is for the court to say," Fadullon said.

He added they felt bad about Agra's decision, especially since they were not even consulted about it and were not properly informed about the resolution.

"Masama ho ang loob ng buong panel nang malaman namin na may resolusyon na may lumabas at nakuha pa namin sa probinsya pa," Fadullon said.

Within DOJ chief's authority

However, Fadullon acknowledged that the accused had the right to ask the justice secretary to review the filing of criminal charges against them, and that it was also within the power of Agra to decide on the request within 60 days.

"Sa proseso po kasi natin under our rules in criminal procedure, once an information is filed in court, the respondent po, yung natalo, may still bring it up for petition for review, provided na hindi pa po sila naaarraign. So iaapela yun sa justice secretary, pero the justice secretary has only a period of 60 days from the time of the filing of the petition within which to resolve it," he said. 

Fadullon said it would appear that the decision to absolve the 2 Ampatuans was rushed, and he expressed doubts whether the justice secretary went through the voluminous evidence.

"Ang sinasabi nga ho namin it takes a little time to go over it and sift through the evidence. We wonder if they carefully went through the evidence before they came up with that resolution," he said.

"Hindi ko din po alam kung ano ang nasa isip ni Mr. Agra ng ipass nya yung resolution na yun," Fadullon added. "I still maintain that positive identification is still the strongest evidence, pero kailangan ang burden [of proof] eh dun sa nagbibigay ng alibi."

Fadullon said the panel of prosecutors is not considering going on mass resignation since it is their responsibility to handle the case. Even if they keep silent, he said the families of the victims and the public would be voicing the same sentiment.

He said that although it was Agra who signed the resolution absolving the 2 Ampatuans, he does not know if it was the justice secretary himself who penned it.

'Families feel betrayed'

ABS-CBN News correspondent Ces Drilon reported over ANC on Monday that the families of the victims had met with Agra last Thursday to protest his statement on television that Zaldy Ampatuan was not involved in the massacre. In that meeting, they were told by Agra he had not yet made a conclusion, so they were shocked to find out on Saturday that they had been betrayed by Agra.

She also reported that the panel of prosecutors got their copy of Agra's resolution from the acting fiscal in Maguindanao and from the Criminal Investigation and Detection Group in General Santos where the Ampatuan brothers had been detained until they were transferred to Manila last Friday. 

The prosecutors said Agra could have easily informed them of his resolution since they were "just a room away from Secretary Agra's office."

Fadullon also believes that Agra overstepped his role since it should now be up to the trial court to decide whether to absolve the 2 Ampatuans.

'Conspiracy must be established'

For his part, Agra said he ordered murder charges against two Ampatuans dropped due to lack of documentary proof that would indicate that they conspired with their relatives over the Maguindanao massacre.

The justice secretary said conspiracy should first be established to show that there is reasonable doubt to charge Zaldy and Akmad Ampatuan for the Maguindanao massacre last November 23.

"I never looked beyond reasonable doubt. My duty is to find whether there is probable cause or if there is none. Insofar as the conspiracy is concerned, this must be established. This must be shown. This cannot be inferred. This cannot be premised on mere relationship as I have pointed out in my resolution. Alibi must be weighed, and this is my own perception of the records and the evidence before me. I have made no pronouncements. I am not convicting or accusing anyone," he said in an ANC Dateline Philippines interview on Monday.

Agra acknowledged the testimony of one witness who said that the two Ampatuans were in a November 22 meeting where the alleged plan to kill the Mangudadatus was decided. He added, however, that he weighed that testimony against the testimony of another witness who said the Ampatuans were elsewhere.

"I must weigh the testimony of one witness as against another witness together with the documentary proof to show that he was not there as shown by his cell phone record as well as the certification of the Philippine Airlines. I have to weigh that with the record of another witness and the record of Globe and Smart. If it was only one witness against another witness, I could have decided differently," he said.

He also cited airline tickets and cellphone records showing the 2 Ampatuans were not in Maguindanao during the massacre as reasons for dropping the charges.

'Not duty bound to inform prosecutors'

Agra said he has the authority to review the decisions of his prosecutors, and that he is not duty bound to inform his prosecutors when reviewing any of the cases they are handling.

"I would want to be impartial in my review of petitions filed before my office and therefore, I don't want to be influenced by any of the prosecutors. Insofar as Fadullon is concerned, I consulted him a day before I released the decision," he said.

He added that there was a meeting between the prosecutors and the families of the victims a day before the resolution was handed down.
He also questioned how the prosecutors got a copy of the resolution since only the docket section was supposed to get a copy of the resolution.

He also revealed that he did not write the decision, but only signed the final draft of the resolution, which was prepared by a "leading prosecutor." He said he could not divulge the name of the reviewing prosecutor since he wanted to avoid friction among state lawyers.

"There must be some degree of impartiality and this is the system in the office, not only in regards to this case. There are reviewing prosecutors reviewing decisions of the handling prosecutors and at the end of the day, it will await (my) approval or disapproval," he said.

A wider plot for admin?

Critics, including the families of the victims, protest that the dropping of the charges could be part of a wider plot by outgoing President Gloria Arroyo to rig the May 10 national elections to favour her candidate.

"This is a deliberate move to free a political kingpin in order to deliver the votes to Arroyo's anointed come May 2010," said senator Francis Pangilinan, campaign manager of the opposition Liberal Party.

"It is an abomination that ought to be condemned and vigorously opposed."

The Liberal Party's presidential bet, Benigno Aquino, has been leading opinion surveys in the run up to the polls, while Arroyo's chosen successor is a distant fourth.

The Ampatuan clan was closely allied with Arroyo until she was forced to publicly disown the family after the massacre.

As the local overlords in vote-rich Maguindanao province, the clan intimidated and cheated to ensure her candidates won in the south during elections, according to her political rivals and rights groups.

Arroyo's spokesman Gary Olivar on Sunday rejected any allegations of impropriety over the dropping of the murder charges.

"It is obscene to insinuate that the president would interfere in the legal proceedings of a heinous crime like the Maguindanao massacre as a mere political accommodation to anyone," Olivar said in a statement. -- with a report from Agence France-Presse; Ces Drilon, ANC