Prosecutors must not depend largely on 'positive identification' on Maguindanao massacre

By Danilo Reyes, Asian Human Rights Commission (AHRC) The decision of the Department of Justice's (DoJ) that 197 people can be prosecuted for multiple murders in the deaths of 57 people in the November 2009 Maguindanao massacre, based largely on "positive identification" could be a concern. In order for the case to have the possibility of securing a conviction in trial, it cannot afford to depend largely on witnesses' oral testimonies and on the principle of "positive identification" alone. In a country like the Philippines, where the public prosecutors and court judges still rely heavily on oral testimonies for deciding a "probable cause" to go for trial or to convict a person respectively, the prosecution of cases face the risk of being dismissed for lack of evidence or that the entire case could collapsed once witnesses recant their testimonies; or their credibility is questioned. In order for the 'positive identification' to stand in trial, it requires not only a mere facial identification of the accused by a witness, but also an adequate proof that the witness knew of or had met the accused before the crime took place. In the argument contained in the DoJ's resolution, however, this reasoning has not been adequately explained. The fundamental requirements in which each witness in the case should have knowledge to each of the person accused has not been adequately mentioned. Having charges filed in court is not enough assurance that the families of the victims will obtain redress. The Philippines has the reputation of poor conviction rates into cases of extrajudicial killings of human rights and political activists. For example of over 900 cases of killings of activists reported since 2001, only three of whom are known to have resulted to conviction. Most of the cases either could not be filed in court or dismissed for lack of evidence and the failure to protect witnesses and also the failure on part of the police to collect and preserve needed forensic evidences from crime scene. One example is the case of Enrico Cabanit, a land reform activists murdered in April 24, 2006 in Panabo City in Mindanao. The local police failed to secure the material evidence needed from the crime scene; for example, not all the spent shells were recovered. They also failed to take photographs and sketches of the crime scene. Cabanit's dead body was also not subjected to autopsy and post-mortem examination, thereby deliberately depriving the possibility of obtaining forensic evidence from the body; or knowing the cause of his death promptly. Although police investigators had been able to produce sketches of the gunmen, based on witness accounts, their descriptions however contradicted those of other witnesses also present at the crime scene. The police also deliberately weakened the case by planting false witness

because those who provided the descriptions of the gunmen were later found out to be the same persons who work for the police as informants or assets. Cabanit's daughter, Daffodil, who is herself an eyewitness to his father's murder, was never afforded any protection. Her father's case ended up not having filed in court. Meanwhile, in the Maguindanao massacre case, police investigators have been seen on television allowing onlookers to dig up dead bodies with bare hands at the crime scene. The process of autopsies and the collection of dead bodies that were excavated from the crime scene were also completely disorganized. On one occasion, two families of the journalist victims end up confused and squabbling over one dead body. Given the frailties and the inability of the investigators to appreciate and employ forensic evidence as exposed in the early stage of investigation, oral testimonies should not be depended upon largely in the prosecution of this case. The government prosecutors must ensure the evidence stands in trial. In the Philippines, filing of charges in court provides no guarantee that victims would obtain redress and perpetrators are punished. In fact, the DoJ had at the early stage of investigating this case lacked the urgency in resolving this case to be able to file it to court as required time set by the court rule. Under Rule 112 of the Revised Rules of Criminal Procedure, the public prosecutors should have completed the investigation and the determination of "probable cause" within 50 days but it took the DoJ over two months to conclude. Also, the DoJ's failure to conclude promptly that the Ampatuans, a clan of powerful local political; and dozens of policemen, soldiers and militiamen could be prosecuted for the massacre demonstrates the reality of how difficult it is to pursue the prosecution of cases in courts due to government's failure, which is much more noticeable in ordinary cases.