REPUBLIC OF THE PHILIPPINES Regional Trial Court

National Capital Judicial Region Branch 77

Quezon City PEOPLE OF THE PHILIPPINES,

Plaintiff, -versus- Crim. Case No. Q-10-162667

For: REBELLION DATU ANDAL AMPATUAN, SR., ET. AL.,

Accused. x - - - - - - - - - - - - - - - - - - - - - - - x

MOTION FOR RECONSIDERATION

THE PEOPLE OF THE PHILIPPINES, through the undersigned

State Prosecutors, unto this Honorable Court respectfully move for reconsideration of its following orders:

I

COURT ORDER DATED MARCH 24, 2010

(Received on March 29, 2010)

On February 19, 2010, the prosecution filed a motion to inhibit the Honorable Presiding Judge due to manifest partiality against the People of the Philippines. He is perceived to have prejudged the rebellion case. He also failed to observe the procedure when he allowed the defense to participate in the determination of probable cause, to cross-examine prosecution witnesses and adduce evidence. It is the position of the prosecution that it is a matter for the presiding judge and the prosecutors. The defense has no role at that stage of the proceedings although it is their motion that is being heard. In an order dated March 9, 2010, Judge Baclig denied the

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motion to inhibit. The prosecution filed a motion for reconsideration on March 15, 2010. In an order dated March 24, 2010, the Honorable Presiding Judge denied the motion for reconsideration which was received by the prosecution on March 29, 2010. The prosecution has fifteen (15) days from receipt or until April 13, 2010 to file a motion for reconsideration.

II

COURT ORDER DATED MARCH 26, 2010 (Received on March 29, 2010)

In an order dated March 16, 2010, the Honorable Presiding Judge admitted all exhibits formally offered by the prosecution to establish show probable cause. In a separate order issued on same date, the Honorable Presiding Judge “conditionally admitted” Exhibits “1” up to “11” (except Exhibit “9-C”) for the accused over the objection of the prosecution invoking Rule 112, Section 5 (a) of the Rules of Court. In an order dated March 26, 2010, (amended on March 29, 2010) the Honorable Presiding Judge dismissed the rebellion charge on the ground of absence of probable cause to indict and detain all of the accused. He ordered the release of accused-movants unless they are being held by a court of law for other lawful causes. The order was received by the prosecution on March 29, 2010 giving the prosecution until April 13, 2010 to file a motion for reconsideration.

ANTECEDENT FACTS

In the aftermath of the November 23, 2009 murders of fifty-seven (57) people in Ampatuan municipality, Maguindanao, the police regional command in Maguindanao through its senior officers reported the closure and abandonment of local government offices including the courts and prosecutors’ offices. The taking up of arms, abandonment and closure of local government offices, the courts and the prosecutors’ offices and

3

the massing of the Ampatuans’ private armies in the rural areas of Maguindanao showed the withdrawal of allegiance to the government by the political allies and supporters of the Ampatuans. These events compelled President Gloria Macapagal Arroyo to issue Presidential Proclamation 1959 on December 4, 2009 declaring martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao.

On December 5, 2009, Lt. Gen. Raymundo B. Ferrer, AFP,

Eastern Mindanao Command, pursuant to Presidential Proclamation 1959 issued mission orders to the commanders of the 6th Infantry Division, Philippine Army, 601st Infantry Brigade, 46th Infantry Batallion of the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), the National Bureau of Investigation (NBI), the Criminal Investigation and Detection Group (CIDG) and other law enforcement agencies to arrest, investigate and prosecute the suspected rebel leaders and their followers identified by PNP intelligence units. The AFP, PNP, NBI, CIDG and other law enforcers were directed to observe the human rights of the suspected leaders and their followers as provided for under the Constitution and penal laws. Lt. Gen. Ferrer also ordered the search of the houses and ranches of the Ampatuans and seizure of firearms and ammunitions in their possession and control.

On December 7, 2009 the PNP-CIDG and NBI charged

Andal Ampatuan, Sr., Zaldy Ampatuan, Akmad Tato Ampatuan, Anwar Ampatuan and Sajid Islam Uy Ampatuan as leaders of the rebellion. Their rebel followers who were arrested and charged are members of the Ampatuans’ Civilian Volunteer Organizations (CVOs), namely: Kusain Akmad Sakilan, Jovel Vista Lopez, Rommy Gimba Mamay, Sammy Duyo Villanueva, Ibrahim Tukya Abdulkadir, Samil Manalao Mindo, Goldo B. Ampatuan, Amaikugao Obab Dalgan, Billy Cabaya Gabriel, Jr., Abdulla Kaliangat Ampatuan, Moneb Smair Ibrahim, Umpa Ugka Yarya, Manding Abdulkadir, Dekay Idra Ulama, Kapid Gabriel Cabaya, Koka Batong Managilid, Sammy Gnada Macabuat, Duca Lendungan Amban, and Akmad Abdullah Ulilisen. Thus, accused were charged in an Information filed with the Regional Trial Court, Cotabato City on December 9, 2009.

On January 12, 2010 the Supreme Court granted the

request of Justice Secretary Agnes VST Devanadera and transferred the venue of trial from Cotabato City to Quezon City to forestall a miscarriage of justice. The case was subsequently raffled to the Honorable Court on February 2, 2010. On February 5, 2009, Judge Baclig heard the urgent motion of Andal Ampatuan, Sr. and the other accused Ampatuans for the

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deferment of the transfer of their custody to Manila. Defense counsel contends that the motion for judicial determination of probable cause should be resolved prior to accused’s transfer of detention to Quezon City. The prosecution moved for a resetting to February 12, 2010 to be able to prepare for trial which the Honorable Presiding Judge denied. The Honorable Presiding Judge ordered the hearing for the determination of probable cause on February 9, 2010 as previously scheduled by Judge Milanio Guerrero of the Cotabato City RTC.

Consequently, the prosecution presented Police Supt.

Roberto T. Badian as its first witness to establish probable cause. P/Supt. Badian testified that he was designated Chief, Regional Investigation and Detective Management Division (RIDMD) of the Police Regional Office Autonomous Region of Muslim Mindanao (PRO ARMM). On December 1, 2009, he personally supervised ground operations in relation to the November 23, 2009 massacre of fifty-seven (57) individuals in Ampatuan, Maguindanao. While traversing the Cotabato-General Santos Highway, he observed that the municipalities of Datu Anggal Midtimbang, Talayan, Guindolongan, Datu Saudi Ampatuan, Datu Unsay and Shariff Aguak were closed. He was instructed by the OIC, RD PRO ARMM to document the padlocked municipalities of Datu Unsay, Shariff Aguak and Ampatuan, and the provincial capitol of Maguindanao in coordination with the AFP troops in the area. At around 11 a.m. of the same date, he took pictures of the padlocked municipalities and the provincial capitol. None of the elected officials and employees in the area rendered services to their constituents. Supt. Badian presented photographs1

taken at that time.

Dante Dingcong in his sworn statement dated December 6, 2009, declared that he was tasked to obtain the death certificates of the victims of the Ampatuan, Maguindanao massacre. Thus, on November 27, 2009 and December 2, 2009, he went to the Local Civil Registrar of the Ampatuan municipality but was unable to apply and file the requirements for the issuance of death certificates of the victims of the Ampatuan massacre because the government offices in the municipal hall of Ampatuan, Maguindanao, were ordered closed by Datu Andal Ampatuan, Sr. and ARMM Governor Zaldy Ampatuan who enjoined the people to rally behind them. Dingcong avers that he saw armed men of the Ampatuans positioned in the different areas of Barangay Poblacion, Ampatuan, Maguindanao, to fight government forces. The truth and veracity of Dingcong’s sworn

1 Exhibits “A” to “G” with submarkings

5

statement2 was admitted by the accused through counsel in open court3

.

The veracity of the sworn statements of prosecution witnesses Nasser Abdul and Haical Mangacop were admitted by the defense as regards their existence, due execution, truth and veracity4

. Consequently, their testimonies in open court were dispensed with upon accused’s insistence.

Nasser Abdul y Usman, a collector/dispatcher at the terminal of Shariff Aguak, Maguindanao, declared that on November 28, 2009, there was a gathering at the mansion of Datu Andal Ampatuan, Sr. in Shariff Aguak, Maguindanao, where he was paid PhP1,000.00 by Moner Asim, a relative of the Ampatuans, to give support to the clan and show the government the Ampatuans have nothing to do with the death of 57 persons. Present at the meeting presided by Datu Andal Ampatuan, Sr. were his children, grandchildren, nephew, close relatives and friends including Datu Zaldy Ampatuan, Jr., Datu Anwar Ampatuan, Datu Antao Midtimbang, Datu Umbra Sinsuat, Jack Ampatuan, Tong Paglas, Zainodin Abutasin, Shamron Shaidi Ampatuan, Alex Tumawis, Moner Asim, Sr., Haj. Akmad Ampatuan, and Engineer Nurie Unas. He heard Datu Andal Ampatuan, Sr. declare that there will be bloodshed. They will fight and rise in arms the moment the government tries to forcibly take them in. The relatives, friends and supporters of the Ampatuans agreed with Datu Andal, Sr. who ordered his private armies consisting of Civilian Volunteer Organizations (CVOs) and Civilian Auxiliary Force Geographical Units (CAFGUs) to be prepared. Nasser Abdul said he is not afraid to bring the matter to the attention of the government out of pity for the innocent victims. The veracity of his sworn statement was admitted by accused through counsel5, was marked in evidence6

and admitted by the court.

Haical Mangacop y Buisan, a resident of Shariff Aguak, Maguindanao, declared in his sworn statement that on November 28, 2009, he was among those who served food in a gathering of relatives, friends and supporters of Datu Andal Ampatuan, Sr. He saw the children of Datu Andal, Sr., namely: Mayor Anwar Ampatuan of Shariff Aguak, Shyde Ampatuan and Aloha

2 Exhibits ‘H” to “H-1” 3 February 9, 2010 TSN, pp. 54 and 55 4 Ibid, pp. 64 and 64 5 Ibid 6 Exhibit “I”

6

Ampatuan; the in laws Bong Ampatuan wife of Gov. Zaldy Ampatuan, Mayor Yacob Ampatuan @ “Jack” of Rajah Buayan, and Moner Asim, Sr.; grandsons Datu Ulo Ampatuan, Mayor Bahnarin Ampatuan and Ipi Ampatuan; and nephew Vice-Mayor Kanor Ampatuan. Also present were Datu Antao Midtimbang, Datu Ali Midtimbang, Mayor Umbra Sinsuat of Datu Odin Sinsuat, Mayor Alex Tumawis, Engineer Nurie Unas and Barangay Chairman Orly Utto of Barangay Mileb, Rajah Buayan. During the gathering, he heard Datu Andal, Sr. tell his relatives, friends and supporters that they will fight back and rebel if the government will try to forcibly take them. Andal Ampatuan, Sr. also ordered his private army to be ready. The relatives, friends and supporters of Andal Sr. agreed with him.

The veracity of Haical Mangacop’s sworn statement was

admitted by accused through counsel7, marked and admitted in evidence8

.

On February 12, 2010, the prosecution presented Lt. General Raymundo Ferrer, AFP, Commander, Eastern Mindanao Command as its next witness. His testimony was continued on February 16, 2010 but was deferred upon motion of defense counsels requesting they be furnished with copies of documents subject of his testimony. In his testimony and affidavit, which was ordered to be prepared and submitted by this Honorable Court and was marked and admitted in evidence9

7 Ibid

, Lt. Gen. Ferrer declared that he is the Commander of the AFP Eastern Mindanao Command (EASTMINCOM) which has jurisdiction over Davao Provinces, SOCSARGEN, CARAGA, Northern Mindanao, including the province of Maguindanao and Cotabato City. As such, he is in charge of the operations and management of all AFP units within his area of responsibility. He avers that on November 23, 2009, a convoy of eight (8) vehicles from Buluan, Maguindanao, with some fifty-seven (57) persons composed mostly of family members and supporters of Buluan Vice-Mayor Esmail “Toto” Mangudadatu, as well as members of the media were flagged down in Brgy. Masalay, Ampatuan, Maguindanao, and abducted by about one hundred (100) armed men of Mayor Datu Andal Ampatuan, Jr. a.k.a. Datu Unsay, and Police Chief Inspector Zukarno Adil Dicay, OIC of the Shariff Aguak PNP and concurrent Deputy Provincial Director of the Maguindanao Police Provincial Office, among others. The passengers of the convoy

8 Exhibit “J” 9 Exhibit “P”

7

were killed and their bodies – some bearing marks of despicable torture, contempt and outrageous torment – found in shallow “mass graves” in Sitio Masalay, Brgy. Salman, Ampatuan. This unspeakable massacre of innocent people in Maguindanao resulted in indignation and public outcry for justice, and posed a challenge to the government and the rule of law. Thus, a Crisis Management Committee headed by Presidential Adviser for Mindanao, Secretary Jesus Dureza, Lt. Gen. Raymundo Ferrer, AFP and Police Director Felizardo Serapio as members, was convened. At the committee meeting, they received verified reports that members of CVOs, Police Auxiliary Units (PAUs) and Special CAFGU Active Auxiliary (SCAA) who were involved in the massacre were no longer under the control of the chain of command and that their loyalty to authorized law enforcement agencies has become suspect. As a matter of fact, Lt. Gen. Ferrer declared that when the Philippine Army’s first responders investigated the massacre reports, the Assistant Provincial Director of Maguindanao P/Chief Inspector Zukarno Adil Dicay and P/Supt. Abusama Maguid, who flagged down the ill-fated convoy, repeatedly denied any untoward incident. It was later determined that Dicay and the police units in the area were directly involved in the abduction. Thus, the Crisis Management Committee formed a Joint Security Coordinating Center (JSCC) at the 601st Infantry Brigade (601IBde) at Tacurong City to coordinate the investigation, determine the extent of the atrocity, and the political and security implications of the incident. Thereafter, the Committee through the JSCC received reports of the massing of CVOs and PAUs under the control of the Ampatuan clan in Shariff Aguak. Upon receiving the information regarding the massing of armed troops, they verified the same through actual interviews of informants and civilians fleeing the area. The information was further validated by aerial and ground reconnaissance some of which Lt. Gen. Ferrer personally undertook. As an immediate response to suppress lawlessness, the President issued Proclamation No. 1946 on November 25, 2009, declaring a state of emergency in the provinces of Maguindanao and Sultan Kudarat, and the City of Cotabato, calling out the AFP to assist in the restoration and maintenance of peace and order in the affected areas. Accordingly, all law enforcement agencies were mobilized for the expeditious investigation, apprehension and prosecution of the lawless elements involved in the gruesome massacre.

8

The following day, the PNP Chief ordered the suspension of all permits to carry firearms outside of residence (PTCFOR) and suspension of all firearms licenses as part of its effort to restore order in Maguindanao. While SCAA members surrendered their issued firearms to the AFP issuing units, the police auxiliary members under the Ampatuans refused to comply therewith. For his part, Lt. Gen. Ferrer recalled all mission orders issued to civilians, the apprehension of civilians wearing PNP or AFP uniforms or using fake police or military vehicles, the immediate pull out of all detailed AFP/PNP personnel assigned with the warring factions and inventory of all CAAs, SCAAs, CVOs and Private Armed Groups (PAGs). As a result, several witnesses came forward and positively identified Mayor Datu Unsay Andal Ampatuan, Jr. a.k.a. Datu Unsay, as the leader of more or less one hundred (100) armed men who carried out the ruthless carnage. Accordingly, government authorities took Mayor Andal Ampatuan, Jr. into their custody on November 26, 2009, and criminal charges for multiple murder were eventually filed against him by the Department of Justice (DOJ) before the proper court. According to Lt. Gen. Ferrer, the capture of Mayor Andal Ampatuan, Jr. should have resulted in the expeditious apprehension and prosecution of all others involved in the gruesome massacre, but the Ampatuans, backed by a formidable group of armed followers, used arms, influence and political position to deprive the Chief Executive of her power to enforce the law and to maintain public order and safety. Significantly, a separatist group based in Maguindanao has also joined forces with the Ampatuans for this purpose. Thereafter, the following transpired:

i. Local government offices in the province of Maguindanao were closed and ranking local government officials refused to discharge their functions, which hindered the investigation and prosecution team from performing its tasks10

;

ii. The Local Civil Registrar of Ampatuan refused to accept the registration of the death certificates of the victims purportedly upon the orders of Andal Ampatuan, Sr.11

; and

10 Annex “A”, Exhibits A-A-2, B-B-3, C-C-2, D-D-2, E-E-2, F-F-2 and G 11 Annex “B”, Exhibit H-H-1, Affidavit of P/Supt. Roberto Torres Badian

9

iii. The local judicial system was crippled by the absence or non-appearance of judges of local courts, thereby depriving the government of legal remedies in their prosecutorial responsibilities (e.g., issuance of warrants of searches, seizure and arrest). While the Supreme Court has designated an Acting Presiding Judge from another province, the normal judicial proceedings could not be carried out in view of threats to their lives or safety, prompting government to seek a change of venue of the criminal cases after informations have been filed12

.

On November 26, 2009, the CVO detachment in Brgy. Meta, Datu Unsay town was attacked and burned by CVOs loyal to the Ampatuans. These CVOs under the local chief executive of the Datu Unsay municipality refused to be disarmed despite announcements made by the JSCC. At around 11:45 a.m. on said day, the two UH-1H Helicopters ferrying Sec. Dureza and party to General Santos City encountered ground fire from the west side of the Ampatuan mansion in Shariff Aguak. At 3:30 p.m. later that same day, two (2) MG520 helicopter gunships from Cotabato City to General Santos City were fired upon while flying over Shariff Aguak. Lt. Gen. Ferrer maintains that verified information disclosed that the Ampatuans are behind the closing down of government offices, the refusal of local officials to discharge their functions, and the simultaneous absence or non-appearance of judges in local courts. On November 27, 2009, a gathering of the Ampatuan clan elders, political allies and supporters was held where it was decided that all firearms used in the massacre should be kept and buried, arrest of Ampatuan clan members/leaders shall be resisted, loyal PAGs/CVOs shall mass up at strategic locations to protect the clan from arrest, Ampatuan female family members and children shall be sent to Manila, the continuous closure of all government facilities, assemblies and rallies shall be organized, these same rallies shall be bombed and the blame be put on the Mangudadatus, and everyone shall render mutual support to resist all government actions against them. 12 Annex “C” 2nd Indorsement of Deputy Court Administrator Nimfa C. Vilches dated

January 18, 2010; C-1, 1st Indorsement of Secretary Agnes VST Devanadera dated January 14, 2010; C-2, Resolution of Supreme Court in A.M. No. 10-1-06-RTC Re: Petition for Change of Trial Venue of Criminal Case No. SA-198, granting the request of Secretary Agnes VST Devanadera; and C-3, 1st Indorsement of Secretary Agnes VST Devanadera dated January 14, 2010 indorsing the letter of PNP IG requesting action on the inability of the courts in Region 12 and Cotabato City to issue search warrants

10

Lt. Gen. Ferrer further states that detailed accounts pertaining to the rebel armed groups and their active movements in Maguindanao were confirmed, specifically:

i. As of November 29, 2009, it was estimated that there were about 2,413 armed combatants coming from the municipalities of Shariff Aguak, Datu Unsay, Datu Salibo, Mamasapano, Datu Saudi Ampatuan (Dikalungan), Sultan Sa Barungis, Datu Piang, Guindulungan, and Talayan, who were in possession of around 2,000 firearms/armaments.

ii. The Ampatuans have consolidated a group of rebels

consisting of 2,413 heavily armed men, with 1,160 of them strategically deployed in Maguindanao. Validated information on the deployment of rebels are as follows:

Around five hundred (500) armed rebels with two (2)

“Sanguko” armored vehicles are in offensive position in the vicinity of Kakal, Ampatuan, Dimampao, Mamasapano and Sampao Ampatuan.

A group with more or less two hundred (200) armed

rebels has moved from Old Maganoy into an offensive position.

More or less eighty (80) fully armed rebels remain in

Tuka, Mamasapano. More or less fifty (50) fully armed rebels led by a

former MNLF Commander are in offensive position in Barangay Baital, Rajah Buayan.

More or less seventy (70) fully armed rebels with two

(2) M60 LMGs remain in offensive position in the vicinity of Barangay Kagwaran, Barangay Iginampong, Datu Unsay (right side of Salvo-General Santos City national highway).

More or less sixty (60) fully armed rebels with four

(4) M60 LMGs remain in offensive position in the vicinity of Kinugitan, the upper portion of Barangay Maitumaig, Datu Unsay.

Kagui Akmad Ampatuan was sighted in Sultan Sa

Barongis with four hundred (400) armed rebels;

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locals heard him utter, “PATAYAN NA KUNG PATAYAN.”

More or less one hundred (100) armed rebels led by

one of the identified leaders in the massacre have been sighted at the quarry of Barangay Lagpan, boundary of Rajah Buayan and Sultan Sa Barongis; the group is armed with one (1) 90RR, one (1) cal. 50 LMG, two (2) cal. 30 LMGs, two (2) 60 mm mortar and assorted rifles.

Lt. Gen. Ferrer avers that the strength of the rebel forces is estimated to be around eight hundred (800) with about 2,000 firearms. These forces are concentrated in the following areas in Maguindanao, which is also the political stronghold of the Ampatuans: Shariff Aguak, Datu Piang, Datu Unsay, Datu Saudi Ampatuan, Datu Salibo, Shariff Saydona Mustapha, Rajah Buayan, Gen Salipada K Pendatun, Mamasapano, Datu Hoffer Ampatuan, Datu Anggal Midtimbang, Talayan, Talitay, Guindulungan, Sultan Sa Barongis, and Datu Abdullah Sangki.

The existence of this armed rebellion is further established by the recovery of high-powered firearms and ammunitions from the estimated four hundred (400) security escorts of Datu Andal Ampatuan, Sr. In addition, armored cars not belonging to the government but bearing “PNP/Police” markings were recovered from a bodega owned by Datu Andal Ampatuan, Sr. in Brgy. Bagong, Shariff Aguak, Maguindanao. Lt. Gen. Ferrer points out that the nature, quantity and quality of their weaponry, the movement of heavily armed rebels into strategic assault positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and fourteen (14) other municipal halls, and the use of armored vehicles, tanks and patrol cars with unauthorized “PNP/Police” markings, all together confirm the existence of an armed public uprising for the political purpose of:

i. removing allegiance from the national government of the Province of Maguindanao; and

ii. depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to maintain public order and safety.

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In the meantime, Lt. Gen. Ferrer avers, the JSCC received information that the firearms used in the massacre were being concealed by former Maguindanao Governor Andal Ampatuan, Sr., and Datu Akmad Ampatuan in their respective houses in Shariff Aguak. Upon verification of such information, search warrants were applied for but because of undue delay in their issuance, (the warrants were finally issued by a specially designated judge from another region on December 3, 2009) only the following were recovered: (For Search Warrant No. 30 served December 4, 2009)

i. Twelve (12) pieces Metal Ammo Box Arsenal, DND; ii. Two hundred thirty (230) rounds 7.62 MM M80A

linked; iii. One (1) piece empty Metal Ammo Box for 5.56mm; iv. One (1) piece empty Metal Ammo Box for Cal. 50; v. Two (2) pieces empty Plastic Ammo Box; vi. Two (2) rounds live ammunitions of Cal. 50; vii. Thirteen (13) rounds live ammunitions of Cal. 5.56; viii. One (1) piece plastic magazine for Cal. 5.56; ix. One (1) mounting of Cal. 30; x. One (1) mounting of Cal. 50; xi. One (1) piece hand guard; xii. Telescope case; xiii. One hundred two (102) pieces linked of Cal. 5.56; xiv. Forty (40) pieces Cal.50 fired cartridge case; xv. Ten (10) pieces 40mm plastic pouch; xvi. Four (4) pieces sling; and xvii. Fifteen (15) pieces bandoleer.

(Search Warrant No. 32 for the house of Hadji Akmad

Ampatuan): i. One (1) 12 gauge Karaytaktik shotgun with SN

6567926 with expired license in the name of Tarhata Ampatuan13

ii. One (1) 60mm. mortar round. and 5 live ammunition; and

(Search Warrant No. 33):

i. One (1) piece empty magazine for Thompson; and ii. Two (2) empty cartridges for caliber .45. (Annex E-1)

Lt. Gen. Ferrer further states that Search Warrant No. 31 against Gov. Datu Andal Ampatuan, Jr. yielded negative results. Acting on reports regarding the locations of various high-powered firearms, explosives and ammunition under the control 13 A case for violation of PD 1866 has been filed against Tarhata Ampatuan

13

of the Ampatuans and their followers, government troops recovered a total of 1,16314 firearms and 1,149,22115

rounds of ammunition and explosives from them.

On December 4, 2009, the President of the Republic of the Philippines signed Proclamation No. 1959, “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.” Proclamation No. 1959 partly states:

WHEREAS, x x x the crime of rebellion or insurrection “is committed by rising publicly and taking arms against the Government for the purpose of xxx depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

WHEREAS, heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety;

WHEREAS, the condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety;

x x x

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim, as follows:

SECTION 1. There is hereby declared a state of martial law in the province of Maguindanao, except for the identified areas of the Moro Islamic Liberation Front x x x

14 As of January 28, 2010 15 As of February 11, 2010

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SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.

x x x

That same day, pursuant to the President’s declaration and in his capacity as EASTMINCOM Commander, Lt. Gen. Ferrer issued Arrest Orders to the Commander of the 6th Infantry Division (6ID) and 601IBde of the Philippine Army, the CIDG of the PNP, and all law enforcement officers directing the arrest, taking into custody, conduct/continuation of the investigation of Governor Andal Ampatuan, Sr., Mayor Anwar Uy Ampatuan and Datu Sajid Islam Uy Ampatuan, among others. On December 5, 2009, at about 1:35 a.m., Col. Leo Cresente M. Ferrer, PA, of the 601st Bde PA, together with Lt. Col. Joel Paloma, PA, took custody of Datu Andal Ampatuan, Sr. from Shariff Aguak. Thereafter, Col. Ferrer, together with P/Supt. Bienvenido Latag, OIC of PRO ARMM, took into custody Zaldy Uy Ampatuan from his residence at Shariff Aguak and turned him over to the 12th Regional Criminal Investigation and Detection Unit (12RCIDU) in Camp Lira, General Santos City. That same date, Lt. Col. Joel M. Paloma, Battalion Commander of the 46th IB PA together with Col. Ferrer, took custody of Datu Andal Ampatuan, Sr. and took him to the Headquarters of the Eastern Mindanao Command in Camp Panacan, Davao City. Due to the state of health of the elder Ampatuan, the family requested that he be brought to the Davao Doctor’s Hospital where he sought medical attention. The next day, December 6, 2009, Andal Ampatuan, Sr. was transferred to the Camp Panacan Military Hospital and turned over to Col. Reynaldo B. Puasanos, physician of the Eastern Mindanao Command and Commanding Officer at the Camp Panacan Station Hospital. On December 5, 2009, Lt. Col. Nerona received a phone call on his cellular phone from Sukarno “Teng” Singh, a Provincial Board Member of Maguindanao. According to Singh, Vice-Governor Akmad Ampatuan, former Governor Sajjid Islam U. Ampatuan, and Mayor Anwar U. Ampatuan “had a prior arrangement with Lt. Gen. Raymundo B. Ferrer, AFP, Commander, Eastern Mindanao Command, in connection with

15

their intent and desire to voluntarily submit and surrender to the authority for investigation…” Singh then requested Lt. Col. Nerona to accompany and escort the three in voluntarily submitting themselves to the authorities. At about 7:30 a.m. that day, Lt. Col. Nerona fetched Vice-Governor Akmad Ampatuan and escorted him to the Maguindanao Police Station, where he was turned over to Police Senior Superintendent Lineses, the OIC-Provincial Director of Maguindanao. Lt. Col. Nerona then took Mayor Anwar U. Ampatuan into custody and turned him over to the Provincial Police Office. Finally, Lt. Col. Nerona went to the house of former Governor Sajid Islam U. Ampatuan, where he waited for the arrival of the latter’s lawyer before he was able to escort Sajid Islam Ampatuan and turn him over, too, to the Provincial Police Office. Later that day Akmad Ampatuan, Anwar U. Ampatuan and Sajjid Islam Ampatuan were escorted to the Office of the Tactical Operation Group Region XII in Awang, Datu Odin Sinsuat, Maguindanao, and thereafter to G7, 6ID PA where the three were turned over. On December 8, 2009, the corresponding Information was filed with the RTC of Cotabato City, charging Datu Andal Ampatuan, Sr., Datu Zaldy Uy Ampatuan, Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan, and Datu Sajid Islam Uy Ampatuan with Rebellion under Article 134 of the Revised Penal Code. Lt. Gen. Ferrer states that the JSCC recorded all the events, facts, information and reports pertaining to the rebellion committed by accused which he compiled in the chronology of intelligence reports/operations in connection with the implementation of a state of emergency and martial law16

.

Lt. Gen. Ferrer’s personal bio-data showing his military background was denied admission by the court due to the objection of the defense. Invoking Rule 132 Section 40 of the Rules of Court17

16 Chronology of Events and Operations ICOW the Implementation of State of Emergency

and Martial Law, admitted as evidence marked Exhibits “K” to “K-17” with sub-marking

, the prosecution respectfully moved that the

17 Sec. 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name

16

personal bio-data be appended to the court record. On March 16, 2010, his testimony was completed.

The Chronology of Events and Operations ICOW (In Connection With) the Implementation of a State of Emergency and Martial Law18

, shows that as early as November 24, 2009, CVOs, PNP SCAA and PAUs identified with the Ampatuan clan have separated themselves from the chain of military command, their loyalty to authorized law enforcement agencies clearly in question. Maguindanao was placed under a State of Emergency (SOE) with AFP and PNP instructed to:

• Quell the uprising of the Ampatuan supporters • Account for all SCAA and CAAs, and recall all firearms • Deactivate/disband all PAGs • Cancel all mission orders and permit to carry in SOE areas • Relieve all PNP officials in Maguindanao

Initial verification showed the strength of SCAAs and CVOs

under the Ampatuan clan provided by the 38th Infantry Battalion (CAFGU), GID, PA to be: Shariff Aguak (197), Mamasapano (112), Datu Piang (17), Rajah Buoyan (31), Datu Abdullah Sangki (12), and CVO strength in Mamasapano (34), Datu Piang (47) and Rajah Buayan (1).

From November 26, 2009 up to December 1, 2009,

government troops from 64IB and 46IB PA secured the Maguindanao Provincial Capitol, Shariff Aguak Municipal Hall and the Ampatuan Municipal Hall. Despite their presence acting as security, the local employees of said government agencies refused to work and take office and instead padlocked their respective facilities in a show of support for the Ampatuans.

On November 27, 2009, information reached the Crisis Management Committee and verified by 6ID that there was a gathering of Ampatuan clan elders, political allies and supporters where the following were decided:

• Resist arrest of other Ampatuan leaders and members; • Massing of loyal PAGS and CVOs at strategic locations to

protect the Ampatuan clan from arrest; • Continued closure of all local government facilities; • Organize assemblies and rallies;

and other personal circumstances of the witness and the substance of the proposed testimony.

18 Supra, see footnote no. 16

17

• Bomb the said rallies and lay the blame onto the Mangudadatus; and

• Resist all government action against the Ampatuans. The Police Regional Command, PRO-ARMM in Maguindanao

reported to PNP Headquarters, Camp Crame, the closure and abandonment of local government offices including offices of the courts and the prosecution service.

On November 29, 2009, in an act of defiance, the Ampatuan family, led by ARMM Regional Governor Zaldy U. Ampatuan conducted a press conference at the Office of the Regional Governor ARMM Compound, Cotabato City, and initiated a rally at Shariff Aguak, Maguindanao. Ampatuan supporters surrounded the mansion of Gov. Andal Ampatuan in a people-power like uprising.

On December 1, 2009, the Administrative and Financial offices of the ARMM and the LGUs of Maguindanao were ordered secured for administrative audit.

On several occasions, firearms cache and assorted ammunition were recovered by AFP and PNP joint task force within properties belonging to the Ampatuan clan.

On December 4, 2009, 60st Bde in coordination with PNP effected the arrest of Andal Ampatuan, Sr. for the crime of rebellion after the declaration of Martial Law in the Province of Maguindanao under Proclamation 1959. On December 5, 2009, Sajid Ampatuan, Zaldy Ampatuan, Akmad Tato Ampatuan, and Anwar Ampatuan were taken into custody along with seventeen (17) of their followers likewise accused in this case.

Joint elements of 601IBde provided security assistance to

CIDG and PNP during the service of warrants at the house of Gov. Andal Ampatuan, Sr. in Shariff Aguak, Maguindanao, house of Mayor Unsay in front of the Andal Sr. mansion, house of Datu Sajid Ampatuan, house of Mayor Datu Saudi Ampatuan and the house of Vice-Mayor Akmad Ampatuan where war materials were recovered.

The “Chronology of Intelligence Reports and Operations conducted ICOW (In Connection With) the Implementation of State of Emergency and Martial Law”19

19 Evidence admitted and marked as Exhibit “L”

also shows the massing of PAGs loyal to the Ampatuan clan, which had taken assault positions against government forces from November 25, 2009 up

18

to February 13, 2010; thus, creating public disorder. Monitoring of their strength and movement indicate that they are heavily armed. On November 29, 2009, the PAGs of the Ampatuans were deployed in strategic locations in the different barangays of: Old Maganoy, Bangga, Kakal, all of Ampatuan, and Masuloit, Sultan sa Barongis, all of Maguidanao. Sometime early December, at around 8 a.m., two hundred (200) elements of a PAG led by Datu Bahnarin “Ban” Ampatuan were sighted at the vicinity of Barangay Dimampao, Datu Abdullah Sangki, Maguindanao. On December 7, 2009, at around 12 noon, two hundred (200) members of another PAG led by @ Ulo Ampatuan were seen massing at So Ketep, Barangay Kakal, Ampatuan, Maguindanao. PAG members were seen carrying three (3) firearms each. It also shows that the JSCC conducted joint operations on different dates with the PNP, PNP SAF (Special Action Force), CIDG, SEO, K-9, and SOCO (Scene of the Crime Operatives) elements in executing search and seizure orders at the residences of Datu Andal Ampatuan, Sr.and Datu Zaldy Ampatuan, which netted positive results leading to the confiscation of assorted high-powered firearms and assorted ammunitions of the Ampatuans.

This is corroborated by the “Location Map” showing the strength of the Ampatuans’ PAGs20

. The map, prepared under Lt. Gen. Ferrer’s control and supervision, shows the location and strength of the Ampatuan private armed groups as follows:

• Barangay Tugal, Sultan sa Barongis 500 • Barangay Masulot, Sultan sa Barongis 500 • Barangays Tugal and Papakan, Sultan sa Barongis 500 • Barangay Papakan, Sultan sa Barongis 500 • Barangay Lipongo, Datu Hoffer Undetermined • Barangays Sampao 1 & 2, Rajah Buayan 80 • Barangay Tabungao, Rajah Buayan 500 • Barangay Sigayan, Lambayong Sultan Kudarat Undetermined • Barangay Dimampao, Ampatuan 150 • Barangay Katap, Ampatuan 3000

Lt. Gen. Ferrer also submitted the “Breakdown of Firearms

Recovered and Confiscated”21

20 Evidence admitted and marked as Exhibit “M”

. The document, prepared under his supervision, shows that from November 24 to December 3, 2009, four hundred twenty-six (426) high-powered firearms (HPFA) and twenty-three (23) low-powered firearms (LPFA) were recovered by 601IBde in Barangay 3, Shariff Aguak, Maguindanao when SOE was declared. From December 4 to 12, 2009, two hundred ninety-one (291) HPFA and fifteen (15) LPFA were recovered

21 Evidence admitted and marked as Exhibits “N” to “N-11”

19

under Proclamation 1959. From December 13 to 29, 2009, one hundred twenty four (124) HPFA were recovered during the SOE after Martial Law. It also shows the number of HPFA and LPFA recovered from the Ampatuans.

A “Compilation of Pictures during the Implementation of a State of Emergency and Martial Law in Maguindanao”22

was also identified and submitted by Lt. Gen. Ferrer. The photographs document the action of the AFP and PNP during the implementation of SOE and Martial Law including the following:

• That on November 26, 2009 Lt. Gen. Ferrer personally supervised the deactivation and disarming of four (4) Maguindanao Special Civilian Active Auxiliary (SCAA), the recall of HPFA, and confiscation of the Ampatuans’ improvised armored vehicles;

• That on November 27, 2009, the military outpost of Barangay Kuloy, Kuloy Detachment CVO barracks and CVO mess hall were burned by the Ampatuans’ CVOs;

• That on November 29, 2009, the Ampatuan clan led by Governor Zaldy Ampatuan conducted a press conference at the ARMM Compound in Cotabato City and held a rally at Shariff Aguak, during which their supporters surrounded the mansion of Gov. Andal Ampatuan, Sr. in a people-power like uprising;

• The recovery of assorted HPFA, assorted ammunition and 50 caliber machine guns in Shariff Aguak, Maguindanao, on December 3, 5, 7 and 10, 2009, and the inventory conducted by the AFP and PNP;

• The recall of firearms of CVOs in Rajah Buayan, Maguindanao; and

• The recovery of thousands of assorted ammunition at the abandoned CVO detachment in Barangay Kuloy, Shariff Aguak, Maguindanao.

On February 19, 2010, the prosecution filed a motion to

inhibit Judge Vivencio Baclig due to manifest partiality against the People of the Philippines. In an order dated March 9, 2010, Judge Baclig denied the same. The prosecution filed a motion for

22 Evidence admitted and marked as Exhibits “O” to “O-33”

20

reconsideration on March 15, 2010, which Judge Baclig likewise denied in an order dated March 24, 2010.

Thereafter, the Honorable Court ordered the prosecution to

make an oral offer of evidence. In an order dated March 16, 2010, the Honorable Presiding

Judge admitted all exhibits for the prosecution to show probable cause. In another order dated March 16, 2010, Judge Baclig also granted conditional admission of Exhibits “1” up to “11” with sub-markings for the accused over the objection of the prosecution

In an order dated March 26, 2010, with an amendment

through another order dated March 29, 2010, Judge Baclig dismissed the rebellion charge on the ground of absence of probable cause to indict and detain all of the accused. He ordered the release of accused-movants unless they are being held by a court of law for other lawful causes.

ISSUES

1. WHETHER THE HONORABLE PRESIDING JUDGE

COMMITTED GRAVE ABUSE OF DISCRETION IN ALLOWING THE DEFENSE TO PARTICIPATE DURING THE DETERMINATION OF PROBABLE CAUSE WHEN HE ALLOWED THEM TO CROSS-EXAMINE AND TO ADDUCE IN EVIDENCE EXHIBITS “1” UP TO “11” WITH SUB-MARKINGS?

2. WHETHER THE HONORABLE PRESIDING JUDGE

WAS GUILTY OF GROSS IGNORANCE OF THE RULES OF COURT, SPECIFICALLY INVOLVING JUDICIAL DETERMINATION OF PROBABLE CAUSE WHEN HE ADOPTED AN TOTALLY IRREGULAR PROCEDURE IN RAILROADING THE DISMISSAL OF THE CASE?

3. WHETHER THE HONORABLE PRESIDING JUDGE

COMMITTED GRAVE ABUSE OF DISCRETION WHEN HE TOTALLY DISREGARDED THE CASE REFERRAL OF THE PHILIPPINE NATIONAL POLICE CRIMINAL INVESTIGATION AND DETECTION GROUP AND THE NATIONAL BUREAU OF INVESTIGATION EXTANT IN THE RECORD OF THIS

21

CASE, PROSECUTION’S EXHIBITS “A” TO “P” AND SUB-MARKINGS, AS WELL AS THE TESTIMONY OF PROSECUTION WITNESS LT. GEN RAYMUNDO B. FERRER, AFP, ON THE FACTUAL BASIS FOR THE DECLARATION OF THE STATE OF EMERGENCY, MARTIAL LAW AND THE EVENTUAL REBELLION CHARGE?

4. WHETHER THE HONORABLE PRESIDING JUDGE

SERIOUSLY ERRED AND/OR COMMITTED GRAVE ABUSE OF DISCRETION WHEN HE DISMISSED THE REBELLION CHARGE DUE TO ALLEGED ABSENCE OF PROBABLE CAUSE?

5. IN THE EVENT THE HONORABLE PRESIDING

JUDGE RECONSIDERS HIS ORDER OF DISMISSAL AND REINSTATES THIS CASE, WHETHER HE SHOULD INHIBIT HIMSELF FROM HEARING AND TRYING THIS CASE DUE TO MANIFEST BIAS AND GROSS IGNORANCE OF THE RULES OF COURT?

ARGUMENTS For purposes of expediency, the first and second issues, and the third and fourth issues shall be discussed jointly. Under the 1987 Constitution, judicial determination of probable cause is described within the phrase, “x x x no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce x x x.”23

From the above, it is clear that judicial determination of probable cause is a matter to be determined by the judge whose discretion is limited to requiring the prosecution to adduce additional evidence in case of doubt.

Yet, despite the continuing objection of the prosecution,24 Judge Baclig allowed the defense to cross-examine prosecution witnesses and even adduce evidence.25

23 Section 2, Article III, 1987 Constitution

24 Supra, see footnote no. 3, p. 20; February 12, 2009 TSN, p. 2 25 Marked as Exhibits “1” to “11” with sub-markings

22

While the presiding judge claimed that the admission of

evidence for the accused is conditional, and even subsequently ruled that “x x x the Court hereby sustains the position taken by the prosecution that the accused should not be allowed to present evidence in the proceeding for judicial determination of probable cause”26

the fact that the pieces of evidence adduced by the defense influenced his resolution to dismiss the rebellion charge against the accused is most evident in the following paragraph found in his order:

“In addition, some of the placards used by the protesters displayed the statements – ‘We love you Madame President’ and ‘We want due process.’ It is clear that these are not statements of hatred or anger with political purpose of toppling the present government; instead, they are expressions of respect for lawful authorities. The mass actions, should there be any, can only be categorized as appropriate form of public redress to air grievances to government institutions. It does not satisfy the element of public uprising and taking arms, which is required in the crime of rebellion.”27

Even though Judge Baclig amended his order by deleting the immediately preceding paragraph28

, this does not cure the fact that the presiding judge committed grave abuse of discretion. He committed the same when he allowed defense to participate in the proceedings by allowing the latter to cross-examine and adduce evidence. The judge’s gross ignorance of procedure in the judicial determination of probable cause is likewise evident when he adopted an extremely irregular process by agreeing to the participation of the defense.

If any, the amendment reveals the judge’s realization that he has in fact given weight to evidence adduced by the defense – evidence not duly presented, identified and its veracity proven in court – notwithstanding his pronouncements to the contrary.

And even as the presiding judge of this Honorable Court

gave undue weight to the evidence of the accused, in contrast and in grave abuse of discretion he totally disregarded evidence adduced by the prosecution.

26 Judge Baclig’s Order dated 26 March 2010, third paragraph, p. 10 27 Ibid, last paragraph, pp. 13 and 14 28 Separate Order dated 29 March 2010

23

The elements of rebellion are:

1. There be public uprising and taking of arms against the Government; and

2. The purpose of the uprising or movement is either: a. To remove from the allegiance to said Government or

its laws: i. The territory of the Philippines or any part

thereof; or ii. Any body of land, naval, or other armed forces; or

b. To deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.

To establish the presence of said elements, the prosecution

presented the testimonies of Dante Dingcong, Nasser Abdul, Haical Mangacop, P/Supt. Roberto Badian and Lt. Gen. Raymundo Ferrer, AFP, as well as documentary evidence.

The affidavits of the first three witnesses were admitted by

the defense as to existence, due execution and veracity. As such defense are deemed to have been given the opportunity to cross-examine all the witnesses. Taken and appreciated together, their testimonies established the following, inter alia:

• The planning and ordering of their followers by the

accused to take up arms against and resist government forces, as seen, heard and witnessed by Nasser Abdul and Haical Mangacop;

• The massive formations of numerous armed civilians positioned in different areas of Barangay Poblacion, Ampatuan, Maguindanao, to fight government forces, as seen and witnessed by Dante Dingcong;

• The closure of local government offices upon the orders of

the accused, the unavailability of public services, and the non-functioning of government offices inclusive of courts29

and prosecutors’ offices as seen and experienced by Dante Dingcong, and seen and recorded by P/Supt Roberto Badian;

29 PNP reported such fact to DOJ in a letter marked “Confidential” (letter is extant on

record); see footnote no. 12

24

• The massing, movement and strategic positioning of private armed groups loyal to the accused as verified and recorded by government forces under the direct control and supervision of Lt. Gen Raymundo Ferrer; and

• The unfolding of events that gave rise to lawlessness and

lead to the declaration by no less than President Gloria Macapagal-Arroyo of a State of Emergency and later Martial Law as testified to by Lt. Gen. Raymundo Ferrer.

Furthermore, Lt. Gen. Ferrer’s testimony established the

formation of a Crisis Management Committee to determine the political and security situation in Maguindanao. Massing of disloyal forces like CVOs was verified to be concentrated in the following locations known to be the stronghold of the accused: Shariff Aguak, Datu Piang, Datu Unsay, Datu Saudi Ampatuan, Datu Salibo, Shariff Saydona Mustapha, Rajah Buayan, Salipada Pendatun, Mamasapano, Datu Hoffer Ampatuan, Datu Andal Midtimbang, Talayan, Talitay, Guindulungan, Sultan Sa Barongis and Datu Abdullah Sangki. The police in the area no longer followed the chain of command instead they got orders from the local officials in the area30

. He mentioned the names of former Governor Datu Andal Ampatuan, Sr., Datu Zaldy Ampatuan, Mayor Akmad Ampatuan, and particularly the mayors of the first district of Maguindanao.

A state of emergency was declared to quell the armed uprising and to account for SCAA and all firearms, and deactivate PAGs. Despite the order to surrender, CVOs, PAUs and PAGs did not do so and instead took assault positions against the government forces.

Lt. Gen. Ferrer avers that the Ampatuan clan and their loyal followers had risen publicly and taken arms against the national government thus resulting in a crisis situation in Maguindanao. The unfolding of events including the taking up of arms, abandonment and closure of local government offices deprived the President as Chief Executive of her powers and prerogatives, and the massing of the Ampatuans’ private armies in the different rural areas of Maguindanao taking assault positions against the government forces are the prevailing conditions indicative of rebellion committed by all of the accused.

30 February 12, 2010 TSN, p. 20

25

Indubitably, the foregoing have been undertaken by the said public officers in the discharge of their official duty. Their official acts therefore enjoys the presumption of regularity.31

In the light of the foregoing, there is little doubt that prosecution was able to dispense with its duty to prove, at the very least, the existence of probable cause in order to detain and prosecute the accused for rebellion.

Yet, in his March 29, 2010 order, the Honorable Presiding

Judge pointedly ignored prosecution’s evidence and proceeded to discuss the elements of the crime of rebellion from a vacuum -like perspective leading to serious error and grave abuse of discretion on his part. Instead of evaluating prosecution’s evidence, Judge Baclig went about debunking the four factual scenarios identified by the prosecution as indicators of the crime of rebellion as committed by the accused.

The Honorable Presiding Judge, in his attempt to negate the

fact that no local Maguindanao prosecutors were available to conduct inquest and preliminary investigation relative to the November 23 mass killings in Ampatuan, Maguindanao, cited record that shows Datu Andal Ampatuan, Jr. underwent inquest proceedings in General Santos City32. The presiding judge conveniently turned a blind eye to the fact that inquest proceedings precisely had to be held in General Santos City, and outside of Maguindanao because of the prevailing conditions therein. He also failed to note that none among the inquest prosecutors is from Maguindanao. Likewise, it seems to have escaped his attention that DOJ had to issue a Department Order33

to constitute a special panel of prosecutors in order to address the absence of local prosecutors to conduct inquest and preliminary investigation on said mass killings.

Next, he belittles the contention that there were massive formations of private armed civilians supported by armored tanks with unauthorized “PNP/Police” markings that do not belong to the government by dismissing the testimonies of Dante Dingcong, Nasser Abdul and Haical Mangacop as these “deserve no evidentiary weight for the crime charged.”34 The Honorable Presiding Judge also dismisses the military and police intelligence reports as unfounded35

31 Sec. 3(m), Rule 131

, and yet contradicts himself

32 Supra, see footnote no. 26, pp. 12 and 13 33 Department Order No. 935 dated 25 November 2009 34 Supra, see footnote no. 26, fourth paragraph, p. 14 35 Ibid, last paragraph, p. 15

26

by claiming, “The government security forces should have been able to engage and neutralize the reported armed groups on the basis of its intelligence reports confirming their size, strength and whereabouts,”36

thereby giving credence to the same intelligence reports that he claimed were unfounded.

The Honorable Presiding Judge then contradicts prosecution evidence that the local government units were not functioning because government offices were closed and employees went on mass leave upon the instigation of the Ampatuans. Judge Baclig cites evidence that allegedly show that the Department of the Interior and Local Government and the PNP closed down the offices.37

The question that begs to be asked is: what evidence? That adduced by the prosecution simply show the documentation by PNP of the padlocked municipal halls of Datu Unsay, Shariff Aguak and Ampatuan, and the provincial capitol of Maguindanao.

The Honorable Presding Judge goes on to mention news footages that he claims showed “many employees were caught by surprise on (sic) the unexpected closure of the offices.”38

It is evident Judge Baclig, in grave abuse of discretion, gave judicial notice to evidence not properly presented nor its veracity duly proven in court.

From here, the presiding judge goes on to claim as untrue the non-functioning of Courts having jurisdiction over the place of the commission of the November 23 mass murders. Again, as in the case of the inquest proceedings held in General Santos City, the judge gave little weight to the fact that the Supreme Court was compelled to appoint a judge not assigned to any court in Cotabato City or Maguindanao. Said RTC judge, Hon. Milanio Guerrero, is from Tacurong City, Sultan Kudarat.

Wrapping up his arguments, Judge Baclig partly declares

that, “The government has full control of the situation in Maguindanao, particularly when it declared a State of Emergency and later a State of Martial Law therein. This Court believes that no armed group would be bold and daring enough to challenge the might of government forces deployed in that area during that time.”39

36 Ibid, first paragraph, p. 16

With due respect to this Honorable Court, said statement is an oxymoron. If, indeed, the government had full control of the situation, why the need to declare a State of Emergency and later

37 Ibid, fourth paragraph, p. 16 38 Ibid 39 Ibid, seventh paragraph, p. 17

27

Martial Law? And, if true, that no armed group would be bold and daring enough to challenge the might of government forces, why is the State of Emergency still in place in Maguindanao even after the lifting of Martial Law? Finally, the most crucial question that the Honorable Presiding Judge either forgot or simply refused to ask is: What were the circumstances that brought about the declaration of a State of Emergency and later Martial Law?

The answer is simple: Rebellion. Thus, even trusting that the Presiding Judge of this

Honorable Court sees light and reconsiders his order of dismissal and reinstates this case, the prosecution earnestly believes he should inhibit himself from further hearing and trying this case as he is perceived to have prejudged the case, and has manifested bias and gross ignorance of the rules of court.

P R A Y E R WHEREFORE, PREMISES CONSIDERED and in order to maintain the dignity of the judicial process and uphold the rule of law, it is respectfully prayed of the Honorable Court that an order be issued:

REVERSING the March 26, 2010 Order, as amended by a March 29, 2010 Order, which dismissed the rebellion charge on the ground of lack of probable cause; REINSTATING the rebellion case against accused Andal Ampatuan, Sr., Zaldy Uy Ampatuan, Sajid Islam Uy Ampatuan, Akmad Tato Ampatuan and Anwar Ampatuan, and their followers; COMMITTING their custody to the jail facility in Camp Bagong Diwa, Philippine National Police, Taguig City; REVERSING the March 24, 2010 Order denying the prosecution’s motion for reconsideration on the March 9, 2010 Order denying the motion to inhibit; INHIBITING himself from further hearing and trying this case in the light of the presiding judge’s manifest

28

bias against the prosecution; and returning this case to the Executive Judge for re-assignment by raffle. Other just and equitable reliefs under the premises are likewise prayed for.

Respectfully Submitted.

City of Manila for Quezon City, 08 April 2010.

CLARO A. ARELLANO Chief State Prosecutor

LEO B. DACERA ALDRIN P. EVANGELISTA Senior State Prosecutor State Prosecutor II Roll No. 32373 Roll No. 44402 IBP Lifetime No. 08441 Department of Justice MCLE Compliance No. 0017364 Padre Faura, Manila April 1, 2009 Department of Justice Padre Faura, Manila LAMBERTO C. FABROS NIVEN R. CANLAPAN State Prosecutor I State Prosecutor I Roll No. 33526 Roll No. 44962 IBP Lifetime No. 02361 IBP Lifetime No. 02079 MCLE Compliance No. 0006984 MCLE Compliance No. 0002652 January 28, 2008 November 22, 2007 Department of Justice Department of Justice Padre Faura, Manila Padre Faura, Manila

RASSENDELL REX F. GINGOYON State Prosecutor I

Roll No. 48139 IBP Lifetime No. 741834

MCLE Compliance No. 0003760 Department of Justice Padre Faura, Manila

29

NOTICE OF HEARING HON. BRANCH CLERK OF COURT Regional Trial Court Quezon City, Branch 77 ATTY. PHILIP SIGFRID A. FORTUN 23rd Floor Multinational Bancorporation Centre 6805 Ayala Avenue, Makati City ATTY. REDEMBERTO R. VILLANUEVA RRV Legal Consultancy Firm Penthouse, CC Castro Int. Bldg. 38 Timog Avenue, Quezon City ATTY. JOSEPH ELMER R. ALCID Alcid Favila Bayobay & Partners Suite 204 Señor Ivan de Palacio 139 Malakas Street, Central District, Quezon City ATTY. FELIPE N. EGARGO, JR. Suite 210 Señor Ivan de Palacio 139 Malakas Street, Central District, Quezon City G r e e t i n g s:

Please submit the foregoing Motion for the consideration of the Honorable Court on April 16, 2010 at 8:30 in the morning or immediately thereafter as soon as counsel may be heard.

RASSENDELL REX F. GINGOYON State Prosecutor

E X P L A N A T I O N Because of personnel and time constraint making personal service impractical, copies of the foregoing motion have been furnished adverse counsels by registered mail per attached registry receipt.

RASSENDELL REX F. GINGOYON State Prosecutor

30

Copy furnished:

BRANCH CLERK OF COURT Regional Trial Court Quezon City, Branch 77 ATTY. PHILIP SIGFRID A. FORTUN 23rd Floor Multinational Bancorporation Centre 6805 Ayala Avenue, Makati City ATTY. REDEMBERTO R. VILLANUEVA RRV Legal Consultancy Firm Penthouse, CC Castro Int. Bldg. 38 Timog Avenue, Quezon City ATTY. JOSEPH ELMER R. ALCID Alcid Favila Bayobay & Partners Suite 204 Señor Ivan de Palacio 139 Malakas Street, Central District, Quezon City ATTY. FELIPE N. EGARGO, JR. Suite 210 Señor Ivan de Palacio 139 Malakas Street, Central District, Quezon City