Undue Process
In Maguindanao Massacre Trial

By Shawn W. Crispin

Monette Salaysay and Rowena Paraan spoke out when they saw potential injustice in the ongoing Maguindanao massacre trial. A news report had alleged that a main suspect, Zaldy Ampatuan, the suspended governor of the Autonomous Muslim Region of Mindanao, might have bribed appellate court judges to approve his motion to be dropped as a defendant. In a case awash in allegations that witnesses had been bribed, threatened, and attacked, Salaysay, the widow of slain journalist Napolean Salaysay, and Paraan, a respected press freedom advocate, had some questions for the judicial system. Why, they asked at a public protest in March, did two appellate judges not recuse themselves from deliberations as they had with an earlier motion involving another Ampatuan clan leader?

The reaction the women generated when they questioned the court illustrates why many here see a justice system turned on its head. Citing rules that shield Philippine court proceedings from conduct seen as degrading the legal system, Appellate Court Justice Danton Bueser said the two women had abused their right to free expression and were potentially in contempt of court, which could bring fines and prison sentences. In his contempt resolution, Bueser wrote that the remarks by Salaysay and Paraan were “unfounded and malicious, intended to put the members of the court and the court itself in a bad light.” The appeals court eventually rejected the dismissal motion filed on behalf of Zaldy Ampatuan, but the contempt resolution against the two women was still pending in late year. Ampatuan’s attorney, Redemberto Villanueva, denied the bribery allegations in published remarks and chimed in that Philippine case law shows that “freedom of expression and speech is not unlimited.”

For Paraan, secretary-general of the National Union of Journalists of the Philippines, the message was clear. “The charges are intended to intimidate those who are most vocal in criticizing how the trial is going and most active in pushing for justice for the massacre victims,” Paraan told CPJ. “The contempt charge may have a chilling effect on the victims’ families since they are not used to this kind of fight.”

Nearly two years since the Maguindanao massacre–an orgy of violence in which 32 journalists and media workers were among 57 people ambushed and killed–the fight for justice has simultaneously intensified in rhetoric and bogged down in technicalities. Legal stalling tactics, a fractured prosecution, and slow-moving courts have conspired against a speedy trial. Resolutions like the one lodged against Salaysay and Paraan have threatened to curb public scrutiny of the landmark prosecution.

Despite the case’s high international profile and pronouncements by President Benigno Aquino that justice would be swiftly served, the Maguindanao prosecution has conformed to a disturbingly familiar pattern for media killings in the Philippines: A journalist is killed; local law enforcement officials are lax or complicit; witnesses and complainants are intimidated, bribed, or attacked; the defense employs stalling tactics to break the will and resources of victims’ families; the case goes unsolved and the culture of impunity is reinforced. The Philippines ranked third worst on CPJ’s 2011 Impunity Index, which calculates unsolved media killings as a percentage of each country’s population.

Journalists and advocates believe that a successful prosecution of the Maguindanao massacre would break the cycle of impunity and make the Philippines a safer place to report the news. There have been certain signs of a breakthrough. Eleven members of the powerful Ampatuan clan, who stand accused of planning and carrying out the mass killing, have been arrested and detained, marking a break from past media murders in the Philippines in which influential suspects leverage political clout to elude arrest and trial. The detained include Andal Ampatuan Jr., mayor of the town that bears his family’s name and the case’s main suspect.

In June, the government’s Anti-Money Laundering Council issued a freeze order on the assets and bank accounts of 28 Ampatuan clan members and close associates, a move prosecution attorneys believe will undermine their ability to finance their legal defense or influence witnesses. That same month, the Supreme Court granted a petition filed by two local press groups–the National Press Club of the Philippines and the Alliance of Filipino Journalists–asking that the Quezon City Regional Trial Court hearing the case be designated a “special court” with no duties beyond Maguindanao massacre hearings.

There have been other, less hopeful signs. Although proceedings began in January 2010, the trial court was still hearing arguments on bail rather than on the merits of the case. Only 70 of the case’s 195 suspects had been arraigned by late 2011. (Evidence presented in the bail proceedings, including eyewitness testimony, will be recycled when the case is heard, prosecutors told CPJ.) Weak law enforcement has also weighed against the prosecution’s case: 100 suspects remained on the loose in late 2011, with many believed to be evading arrest in the remote, mountainous areas of Maguindanao province where the Ampatuan clan still wields considerable political influence.

By late year, several jailed suspects, including a group of police officials and members of the Ampatuans’ private armed militia, had filed motions for their release on bail due to what they argued was a lack of evidence. And an organization of victims’ family members raised concern over reports that Zaldy Ampatuan was negotiating with the Aquino administration to become a state witness in an unrelated electoral fraud case against former President Gloria Macapagal-Arroyo, potentially in exchange for dropping the Maguindanao charges against him.

Defense lawyers representing Ampatuan clan members have filed a series of motions challenging the legal basis of the charges, including conspiracy to commit mass murder. A group of alleged gunmen under the Ampatuans’ command filed a habeas corpus motion that contends they were illegally arrested and misidentified as suspects in the case.

Romel Bagares, a private legal associate working with the prosecution, told CPJ that defense lawyers have employed “box techniques,” in which they lure prosecutors into courtroom commitments that are difficult to fulfill and then file motions when the commitments aren’t met. When prosecution witnesses have taken the stand, Bagares said, the defense has postponed cross-examination on technical grounds, including not receiving witnesses’ background information in a timely manner. He noted that if a witness were killed or went missing before being cross-examined, his or her testimony would be nullified under Philippine court rules. At least one prosecution witness was murdered in unclear circumstances after bail proceedings began.

Philip Sigfrid Fortun, the defense attorney representing suspects Andal Ampatuan Sr. and Andal Ampatuan Jr., rejected suggestions that the defense has purposefully stalled the trial. In response to written questions from CPJ, Fortun said defense attorneys have tried to expedite the proceedings, proposing twice-weekly court hearings and the submission of judicial affidavits in place of time-consuming direct examination of witnesses. “If there is anyone interested in having the cases move at a faster clip, it is the defense lawyers whose clients are in jail for close to two years,” Fortun said.

According to press freedom advocates monitoring the trial, the flurry of motions and petitions has fragmented and overstretched a prosecution team in which private lawyers have been called in to assist their under-resourced public counterparts. Some private prosecution lawyers have worked on the case on a pro bono basis and have been able to do so only part-time. On the other side, a team of 15 private defense attorneys filed on average three new motions per week, each of which required the prosecution to submit written responses and replies in court. In cases in which prosecution witnesses have given damaging testimony, defense lawyers have filed perjury and mandamus petitions, according to private prosecutor Prichy Quinsayas.

Prosecutors and advocates say the sudden death by heart attack of Leo Dacera, the public prosecutor and witness protection chief, in 2010 has left a leadership vacuum that has undermined the prosecution team’s unity and morale. Tensions came to a head in March this year when private prosecutors working alongside their state-assigned counterparts clashed openly over courtroom tactics.

Nena Santos, a private prosecutor representing 27 complainants in the case, openly accused state prosecutors of soft-pedaling questions to defense witnesses at bail proceedings. Justice Secretary Leila de Lima soon ordered a revamp of the prosecution panel, removing lead prosecutor Richard Anthony Fadullon and others from the public prosecution team. De Lima told the Philippine Daily Inquirer that the Fadullon-led team had been lacking in “zeal, aggressiveness, and dynamism” and that her revamp aimed to bridge “irreconcilable differences” between public and private lawyers handling the case. She named assistant regional prosecutor Peter Medalle to head the new team.

The slow progress and splits between public and private prosecutors have raised doubts about the Aquino administration’s ability to achieve justice. In a statement released on the first anniversary of the massacre, Aquino said the resolution of the cases would be a “litmus test” of the country’s justice system. Two years since the massacre, observers and advocates estimate that without a strong executive push, including a sweeping revision of courtroom rules, the complex case could stretch out a decade or longer.

To expedite the proceedings, advocates and lawyers say, the government should also allocate more resources. Quinsayas, a private prosecution attorney involved in the case on behalf of the Freedom Fund for Filipino Journalists, told CPJ that public prosecutors have to carry their usual workload on top of the massacre trial and that they are not given extra allowances to cover its expenses. She noted that the prosecution was assigned just one support staff member to handle the case’s voluminous clerical work. And it was only in October 2011, nearly two years into the case, that Justice Secretary de Lima provided a working area for the exclusive use of the prosecution panel.

The Center for Media Freedom and Responsibility, a local press freedom group, has argued that the defense team has strategically stalled the proceedings by filing a deluge of motions, including at least six demanding that the presiding judge recuse herself. The Center, the Freedom Fund, and the National Union of Journalists have long advocated a review of court rules that have been exploited by defendants to weaken their trials, pursue legal loopholes, or create procedural missteps that would allow them to escape prosecution. The three groups have held meetings with both the previous Arroyo government and the incumbent Aquino administration at which they have sought ways to reform court rules.

Of particular concern is Rule 65, which allows defendants to file limitless motions of certiorari, a writ seeking higher court review of a lower court’s ruling, jurisdiction, or discretion. The motions have historically been lodged to stall or subvert court proceedings in media murder cases. Top defendants in the 2005 murder of investigative journalist Marlene Esperat used certiorari motions to challenge their arrest warrants and, as a result, were able to stall the beginning of their trial by nearly two years.

Former Palawan Gov. Joel Reyes filed a petition for certiorari in October 2011 to try to stop a new investigation into allegations that he planned the killing of journalist Gerry Ortega. His petition argued that de Lima, three state prosecutors, and the journalist’s widow, Patria Ortega, “gravely abused” their discretion in requesting and ordering a reinvestigation. The Center for Media Freedom and Responsibility notes that Philippine law defines grave abuse of discretion as “the capricious and arbitrary exercise of judgment”–a highly subjective characterization that defense lawyers are free to assert repeatedly during proceedings.

Filing an endless stream of such motions seems to be at the heart of the Ampatuans’ legal defense. A group of arraigned Ampatuan family members filed a petition of certiorari in September claiming that the court that heard their bail proceedings had abused its discretion by issuing warrants for their arrests. The defendants requested that proceedings be halted until their petition is resolved, although the Court of Appeals has allowed bail hearings to continue while the matter is pending.

The defense lawyers “are trying to prolong the case so that the media and public lose interest,” said Melanie Pinlac, who monitors the case for the Center for Media Freedom. “They are trying to make the victims’ families feel tired and lose hope.”

Defense attorney Fortun argues that the use of certiorari petitions is restricted by current rules. If the Court of Appeals is willing to entertain the petitions, he said, then they legally represent issues critical to the case. He contends that such petitions are often necessary because critical media reports have unfairly prejudiced public opinion against his clients. “They have convicted them beyond a reasonable doubt,” Fortun said. “Anything less than conviction could generate a lynch mob effect against the court system and lawyers.”

Aquino administration officials have maintained that they cannot intervene directly to expedite the judicial process, citing a constitutional separation of powers among the executive, legislative, and judicial branches. Press freedom advocates have countered that Aquino could initiate a review of particular court rules that have been exploited to delay the Maguindanao proceedings. Private prosecution associate Bagares and others argue that Aquino could also exercise his executive authority to expedite the arrests of the more than 100 suspects still at large.

Press advocates see a growing risk that the defense team’s dizzying array of petitions and resolutions will eventually break the resolve of overstretched prosecutors and cause the media to lose interest in the case. Aquino has repeatedly said he views the case as a test of the Philippine judiciary’s ability to dispense justice. But without a greater commitment of government resources and attention from his own office, it’s a test the Philippines could easily fail.

Shawn W. Crispin, CPJ’s senior Southeast Asia representative, is the author of the 2010 special report, “Impunity on trial in the Philippines,” and has conducted several missions to the Philippines as part of CPJ’s Global Campaign Against Impunity. The Global Campaign Against Impunity is underwritten by the John S. and James L. Knight Foundation.