ARMM Governor Zaldy Ampatuan and Andal Ampatuan Jr. - photo used in the DOJ investigation PHOTO BY RAISSA ROBLES

Acting Justice Secretary Alberto Agra exonerated Muslim Mindanao Governor Zaldy Ampatuan of the Ampatuan, Maguinandao massacre because he said Governor Zaldy was not there at the scene of the crime.

Governor Zaldy had a plane ticket and cellphone records to prove this, he said.

But no witness ever said Gov. Zaldy was at the massacre scene. What eyewitness Kenny Dalandag said was that Gov. Zaldy was in on the planning and the plotting on the eve of   the November 23 massacre.

Please read below portions of Kenny Dalandag’s affidavit that formed part of the basis for the arrest of Gov. Zaldy.  I did not get this from the lawyers of the slain journalists’ families.  In fact lawyer Harry Roque declined to give it to me. I got it from deep within the government bureaucracy.

This morning, Justice Secretary Agra defended his move on radio saying:

Para imaintain yung  impartiality ng pagreview ng mga dokumento at records, hindi ho naman kinokonsulta yung nagpahayag ng mga dokumento.

Kayat bagamat nagkaroon ako ng ilang discussion tungkol dito sa update tungkol sa Maguindanao massacre, ang naging basehan ko  lang po ng aking resolution ay yung mga dokumento at mga ebidensiya na nasa Department t of Justice. Wala na pong iba.

This is the rough translation of what Agra said:

In order to maintain the the impartiality of the review of the documents and records, one does not consult those who gave the documents.

And so, while I had some discussion about the update on the Maguindanao massacre, the basis of my resolution were the documents and the evidence at the Department of Justice. Nothing else.

From his statements, it was clear he did not make an effort to talk to Kenny Dalandag. But last weekend Agence France Presse quoted Agra as saying:

“There was no proof of conspiracy and there was  proof of an alibi.”

How did he come to that conclusion without talking to Kenny Dalandag?

Did he even consider Kenny Dalandag’s affidavit (read portions below)? Because if he didn’t he may be laying the predicate to exonerate more Ampatuans.

The original proposed charge sheet -

Kenny Dalandag’s affidavit -

Soon after, the killings began…

Nearly eight years ago I asked President Gloria Macapagal-Arroyo,  “I’m sure a lot of women are dying to ask you this question.”

“And since you are not a widow, they would like to ask you this question. You don’t have to answer this if you don’t want to, but a lot of women are dying to know – do you still have sex?”

The 55-year-old mother of three replied  “Plenty” – and gave a toothy smile.

Last January 22, when she hosted a a surprise dinner for 23 officers and members of the Foreign Correspondents Association of the Philippines (FOCAP) I asked her a milder personal question about her hair. Now I’m not so sure if her reluctant reply pertained to my question eight years ago or two Fridays ago.

President Gloria Macapagal-Arroyo and FOCAP

During the hour-long dinner, Mrs Arroyo was at her gracious best but she was not all that candid. I must say, it took all of our reportorial skills  to get her to talk about her former college student and now leading presidential contender Senator Benigno “Noynoy” Aquino III. She refused to talk about her party’s presidential standard bearer Gilbert Teodoro or about her feelings towards the Ampatuans – her long-time allies now accused of murdering 57 people including 30 journalists.

The ease with which she talked to reporters vanished in 2005 when wiretapped tapes of her, suggesting she was trying to rig her 2004 poll victory by a million votes, leaked out.

During her dinner some of that ease returned as she talked about the presidential palace, her girlhood and her Palace chef. Only to vanish when she refused to answer many questions she deemed “political” or which asked about her “feelings”.

Still, the occasion gave me a momentary glimpse of the power and the pomp of the presidency, its lonely isolation, and the woman who was determined to hold on to it for as long as she could.

I did not get any hint she was ready to clear out her desk by June 30 when her term ends.

At short notice. An invitation to dine with her, even at several hours’ notice, was highly unusual and one I seized at a moment’s notice. She had not seen FOCAP since 2007. A press conference in 2008 was abruptly canceled after we were told she would only talk about the economy and would not entertain political questions.

I was curious why the President wanted to meet us on the same day she waved goodbye to the remains of her press secretary, Cerge Remonde.

Her terms for engaging the foreign press quickly became evident. At the entrance to the presidential palace, the guards impounded all tape recorders and cameras on orders of the palace media relations office. It was a first for many of the journalists, including me, who have covered Palace events in three previous presidencies.

The media handlers later explained that no tape recorders and cameras were allowed because it was a strictly social event. A Palace photographer would snap photos. The confiscation disoriented me somewhat because we were informed earlier that while there was no formal Q and A, the President “may answer questions”.

Didn’t she want to be quoted correctly? And it would have been bad manners for us to scribble throughout the meal.

It turned out alright in the end, because someone else, who asked to remain unnamed, enabled me to put together almost the entire dinner conversation. Besides, Mrs Arroyo never told us it was off the record.

(more…)

Citing the wrong law as the legal basis shows that this  martial law is so sloppily put together.  I fear the suspected murderers can get away with murder by exploiting precisely this sloppiness.

In this instance, President Gloria Macapagal-Arroyo signed Proclamation 1959 using the following as her basis for declaring Martial Law:

• the Constitution and
• Republic Act 6986.

But RA 6986 happens to be “An Act establishing a high school in Barangay Dulop, municipality of Dumingag, province of Zamboanga del Sur, to be known as the Dulop High School, and appropriating funds therefore.” See for yourself. Go to chanrobles.com and scroll down to view RA6986

Executive Secretary Eduardo Ermita shows a copy of Proclamation No. 1959 signed on December 4, 2009 by President Gloria Macapagal-Arroyo, proclaiming a state of martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao, except for certain areas after a press briefing Saturday (December 5) in Malacanang. (Official photo release by the Office of the Press Secretary, photo by Marcelino Pascua)

Justice Secretary Agnes Devanadera must have caught on to this mistake because in the press conference today at noon in Malacanang Palace, she started by pointing out a “clerical error” in Proclamation 1959.  She didn’t apologize or explain the mistake, though.  To watch the presscon,  go to Dec 5, 2009

She said: “Let me first announce a correction in our Proclamation No. 1959. There is a clerical error on the third ‘Whereas’ clause –instead of RA No. 6989, it should be Act no. 3815 as amended which is the Revised Penal Code.”

What happens now to Zaldy and Andal Ampatuan Sr who were arrested on the basis of this proclamation? Could their wily lawyer  Sigfrid Fortun  exploit this mistake to point out that their arrests were baseless?

Let’s assume good faith. Perhaps the drafters of the proclamation were sleepy and made a mistake and inverted the numbers?

Sure enough, they did. R.A. 6968 is – “An Act punishing the crime of coup d’etat by amending Articles 134, 135 and 136 of…The Revised Penal Code, and for other purposes.”

This is the same provision in the Revised Penal Code that Devanadera said the Proclamation referred to.

It states how rebellion or insurrection is committed:

“The crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

Let’s break down this long sentence,

“The crime of rebellion or insurrection is committed by rising and taking arms against the Government…

I’m puzzled by this. It’s now sunset and no armed men – that the military said were massing -  have been were arrested in connection with the rebellion.

During the press con, Devanadera justified martial law by saying: “It was a looming and in fact it was already practically an overthrow of government. The courts were not functioning in Maguindanao.”

But she had started her explanation by saying: “There were arrests and there were witnesses that came up and the appropriate charges were filed for multiple murder. ” Didn’t that show a functioning court?

The Supreme Court spokesman Midas Marquez also rejected Devanadera’s claim of a non-functioning court there.  See  SC contradicts Palace on judiciary in Maguindanao.

To further justify martial law, she said,  “practically the local governments in the whole of Mindanao had been removed from the legitimate government authorities. In fact most of these local government units, even the municipal buildings especially, have closed down. They cease to render government services and there was massing in various parts of heavily armed men.”

Perhaps there is another reason why town halls shut down? Last week, President Arroyo gave Interior and Local Governments Secretary Ronaldo Puno wide supervisory powers over the Autonomous Region for Muslim Mindanao (ARMM) which includes Maguindanao. Presidential spokesman Cerge Remonde said Puno had the power to suspend all officials of Maguindanao province and relieve all police and military commanders in the area.

Did he or did he not suspend local executives? And didn’t he also have the power to replace them for dereliction of duty?

Today Remonde practically said media should be grateful for martial law. He said “this step is taken by Her Excellency President Gloria Macapagal-Arroyo in answer to that cry for justice of the victims of the Maguindanao massacre.”

Unfortunately, the Ampatuans will not be tried by a military court but by a civilian court that could throw out vital evidence just because this was taken in an unconstitutional manner.

I fear this martial law is a set-up. An overkill that will harm the case of  the Filipino people against the Ampatuans.

“We need a backhoe to empty out the previously excavated mass graves to sift through the debris to ascertain whether an untouched part of the grave may still hold some human remains,” according to Peruvian forensic anthropologist Dr. Jose Pablo Baraybar who is helping gather forensic evidence to use in the coming court trial.

They are still looking for a possible 58th victim.

I am reprinting below the latest press release issued by Atty. Romel Regalado Bagares, executive director of the  lawyers’ NGO, the Center for International Law, which is also helping out.

PRESS RELEASE 12/3/09

Cotabato City – The independent forensic team led by Peruvian forensic anthropologist Dr. Jose Pablo Baraybar said yesterday it is “now almost sure that there is a 58^th body” that is yet unaccounted for after his team’s discovery of a partial upper left denture with a metal clasp at the crime scene that did not fit any of the remains already recovered.

As this developed, Baraybar and his team were set to fly back to Manila yesterday on the advice of their private security consultants who reported that the group was being cased by armed men.

Dr. Baraybar  said the dentures belonged to slain Midland Review staff Reynaldo “Bebot” Momay, of Tacurong City Sultan Kudarat, according to his dental records.

“However, the dentures  did not fit the set of human remains earlier identified as belonging to Momay,” said  the forensic anthropologist, adding that the same body is being claimed as well by the families of  Victor Nuñez  and a certain Tiamzon, both of UNTV based in General Santos City.

The discovery of the dentures brings to 58 the number of people who perished in the Nov. 23 carnage. Ealier, authorities reported that a total of 57 human remains have been recovered from the site and of these, only three have remained unidentified.

However, Dr. Baraybar’s team found that of the three remains, two have a full set of teeth while the third has full upper and lower dentures. “This clearly means we have another body still missing.”

Baraybar’s team began evidence-gathering at the massacre site in Barangay Salman, Ampatuan town Sunday.  The dentures were recovered Wednesday in a grassy area near one of the vehicles – a Songgyang van – in the convoy that was waylaid by some 100 armed men  linked to the powerful Ampatuan clan.

The Peruvian forensic expert said Momay’s dentures are  held in place by a metal clasp and could not be easily dislodged unless extracted by an indirect force. “That is the best guess we can have at this moment.”

Dr. Baraybar and his British counterpart Christopher Cobb-Smith, a weapons expert and experienced field investigator, lead a team of forensic investigators and lawyers from the Center for International Law (CenterLaw) deputized by the Commission on Human Rights (CHR) to conduct an independent parallel investigation on the Ampatuan massacre.  He also directed the Office on Missing Persons and Forensics of the UN Interim Administration Mission in Kosovo.

Baraybar and Cobb-Smith are joined in the team by Centerlaw lawyers Harry Roque, Joel Butuyan, Romel Bagares and Gilbert Andres.

The group’s recovery efforts had been hampered by the lack of heavy equipment. “We need a backhoe to empty out the previously excavated mass graves to sift through the debris to ascertain whether an untouched part of the grave may still hold some human remains,” said Dr. Baraybar.  “It has to be carefully done – we have some experience doing this in the Balkans in our work for the United Nations International Criminal Tribunal for the Former Yugoslavia.”

The legal team’s chief counsel, Harry Roque, said he was able to arrange for a backhoe and a truck for the use of the forensic investigation to be fielded to the crime scene by Saturday morning.

“We’re moving our base of operations from Cotabato City to Koronadal City, where the security risks are not as high,” said Roque.