We thank Chief State Prosecutor Claro Arellano, Assistant Chief State Prosecutor Richard Anthony Fadulion and Senior State Prosecutor Juan Navera for their statement dated 25 June 2010.
Their statement – no, their very own admission – has verified facts that we have ourselves stated and as a result of which, the public and our courts can now determine if the Department’s refusal to provide to the now deceased witness “Jessie” was both legally and morally justified.
Please consider the following:
1. They agreed to interview the witness Jessie on March 1, 2010 at 3PM at the UP Law Center. Unknown to them, the UP Law Center was only a rendezvous as days before, we had already asked Chairperson Leila de Lima for her good offices by hosting and witnessing, for monitoring purposes, the government prosecutors interview with Jessie. The prosecutors on the day itself unilaterally declared that they would not travel to the UP Law Center and that the witness would have to be brought to the DOJ premises. We then asked the witness whether he was willing to go to the DOJ. His reply was: DOJ, “hwag doon. Hawak ng mga Ampatuan yun”. This was months before DOJ Secretary Agra would dismiss the criminal charges against Zaldy and Akmad Ampatuan. Clearly, it was not me or any of my colleagues said that the “DOJ” was hawak ng “Ampatuan”. It was the witness himself.
2. We confirm that we did suggest a hotel near the airport as an alternative venue for March 1. This was because of the refusal of the witness to step foot in the DOJ premises for reasons that he had already stated. We chose that particular American chain hotel precisely because of its very strict security arrangements replete with metal detectors and sniffing dogs at the entrance for both cars and individuals. We certainly felt that we would all be safer there compared to the DOJ, which incidentally, does not even have even hand held detectors at its entrance.
3. Initially, the WPP acceded. Again at the last minute, the Committee changed their decision and called the meeting off. He did say that aside from the DOJ as their preferred venue, then Secretary Agnes Devenadera was on the way out and the Committee had to confer with her. We brought the witness to Manila on that date precisely because upon the advice of the WPP, we needed Secretary Devenadera to approve his enrollment into the WPP. Apparently, the personal action of the sitting Secretary was required for this purpose. This was why we were both apprehensive and frustrated that the interview did not push through.
4. In any case, since the witness was already in Manila, we still brought him to the office of Chairperson De Lima who met and heard the testimony of the witness. One of the things Chair de Lima said in that meeting was that “she was frustrated that the CHR did not have the capability to provide witness protection as she would have otherwise provided it to Jessie”. We hope the incoming Secretary of Justice will confirm this fact.
5. It was after this aborted meeting that we decided to reduce into writing the application of the witness into the WPP. We included a detailed narration of what would have been his testimony. By then, I already suspected that the Department was lukewarm to admit the witness into the program for reasons unclear to me. I then thought that by detailing his proposed testimony, we would be able to memorialize the fact that the Department did not go out of its way to interview the witness despite the seriousness of his testimony. This turned out to be a very good decision because while the department now insists that the interview could have taken place at the vicinity of the DOJ, certainly, the seriousness of the testimony would otherwise lead to the conclusion that had the WPP used even ordinary diligence, they should have gotten out of their way to interview the witness. Besides, there is no rule which mandates that all interviews of the WPP should be conducted at the premises of the DOJ. Human experience, on the contrary, dictates that witnesses at risk would demand a more secure location than the premises of the DOJ. If security were indeed the concern, we wonder why the Prosecutors did not bother to suggest a military camp as a venue.
6. The records bear out the fact that we submitted to the DOJ a detailed narration of what would have been Jessie’s testimony. The state prosecutors have admitted receiving the narration attached to a communication we sent to the DOJ dated March 5, 2010; in fact, Assistant Chief State Prosecutor Richard Anthony Fadullon replied to our query in a letter dated March 11, 2010. They too admitted to this.
7. This belies Secretary Agra’s statement to Human Rights Watch (HRW) when the international human rights group told him about Jessie’s case that he has not heard of him. It boggles the mind that a matter of such high importance should not be communicated to him by his state prosecutors.
8. If the state prosecutors did not relay to him the facts regarding Jessie’s application into the WPP, they are liable for dereliction of duty. Assuming that Secretary Agra made good of his word to the HRW that he would look into the matter but in the process, the state prosecutors decided to withhold the information about Jessie from him, it only makes things worse for the state prosecutors. But this in itself does not absolve Secretary Agra of liability; after all, he is the Justice Secretary. How can he not now of the case when his own state prosecutors now admit they officially received and replied to an application for admission into the DOJ’s Witness Protection Program from Jessie? Ultimately, the buck stops where he sits at the top of the hierarchy at the DOJ. Given this, we wonder how he can say that he leaves the Department as one “extremely happy” man.
9. We confirm all the other details which they mentioned, including the meeting on March 12 where the lawyer of the witness – Macky Hernandez –was in attendance. This would prove in no uncertain terms that Secretary Agra lied when he claimed that I was representing the victims and a killer at the same time. I also confirm that I obtained for the witness, with his conformity, an independent counsel. This was because I knew that I had a conflict of interest and could not represent both victims and killer at the same time. The witness having his own counsel avoided this conflict and also ensured that the constitutional rights of a witness, whose testimony my clients required, would be protected.
10. While we admit that our second meeting did not push through because we could not bring the witness immediately from where he was then seeking sanctuary, we dispute that we did nothing to schedule a third one. It was Senior State Prosecutor Navera himself who, in refusing a third attempt at an interview said that they were no longer interested in meeting the witness. On that day, he arrogantly gave a deadline of 5 p.m., after which, he said, any talk about getting the witness into the WPP would be over and done with. He even sarcastically texted that we should not have brought him to the media first.
11. Further, their statement that I walked out of a hearing on January 20, 2010 is both a lie and is downright malicious. The records will show that the hearing on that day was recessed at 11AM after Gov. Magundadatu had finished with his cross-examination. It was during the recess that my clients and I talked to the assembled media outside the courtroom to discuss our filing with the Asian Inter-Governmental Commission on Human Rights. This was a filing that the prosecutors, echoing the position of then Secretary Devenedara, did not like because they mistook it as an expression of distrust with the on-going criminal proceedings here. On the contrary, the ASEAN filing was to declare the Philippines guilty of breach of obligation to protect and promote the right to life of the victims. With such a declaration, the Philippines would in turn be constrained to pay reparations to the victims.
12. I dispute Prosecutor Navera’s assertion that I have been belligerent. But I would agree that I have differed with the Public Prosecutors on at least three issues: First, the place of detention for the Ampatuans. The Public Prosecutors wanted a special detention for them, my clients wanted them to be treated like ordinary criminals and hence, they wanted them detained in the Quezon City Jail. We filed a “manifestation” in this regard after our clients confirmed that the Ampatuans were being given special treatment in the General Santos facility where many of the Ampatuans were then detained. The victims could file a manifestation, unlike a “motion” alone. A proper motion could only be filed with the conformity if the public prosecutor. Obviously, we filed a manifestation because the prosecutors until today – despite the press conferences and the parties in Bicutan where the Ampatuans are still detained – would not want to detain the accused in Quezon City jail.
13. Second, we filed similar “manifestations” on the issues of live coverage and the fact that the victims whom we represent have lost their trust and confidence on Secretary Agra. In the latter manifestation, we also asked the court to defer proceedings until after July 1 after the administration of President Arroyo. Again these were manifestations filed to register the sentiments of the victims to the court as otherwise, the conformity of the prosecutors would be required. Certainly, the 14 victims whom we represent have earned the right to let their feelings known to both the court and the public.
14. Finally, to dispute that we have been belligerent to the Public Prosecutors, we drafted and filed, with their conformity, a motion to cite BJMP officials in contempt for allowing accused Unsay to conduct a press conference in Bicutan.
15. While the prosecutors and I agree substantially on the recital of facts, the issue remains whether despite their detailed knowledge of the nature of testimony of the witness, they were justified in their failure to even listen to the witness in person. In this regard, we submit that Agra and the DOJ cannot wash their hands of the death of a potential witness with a potentially damning testimony against suspects in the most gruesome massacre perpetrated in the Philippines in recent memory. At the very least, they cannot escape liability and culpability for their dereliction of duty as public officers.
16. Ultimately, it is the State, through the DOJ, that is precisely tasked to protect and promote the right to life of individuals, especially those who have come to them for assistance. No amount of blaming others can absolve the DOJ and the state in this regard.