Suspended ARMM Guv Files Petition For Certiorari, TRO

MANILA, Philippines - A defense lawyer of detained Muslim autonomous region governor Datu Zaldy Ampatuan filed a petition for certiorari and application for the issuance of temporary restraining order with the Court of Appeals in Manila to annul Justice Secretary Alberto Agra’s second resolution which reversed his earlier decision finding no probable cause against the offial of complicity in the gory massacre last year in Maguindanao province.

Lawyer Redemberto R. Villanueva, in his 65-page petition on Monday, said he raised Agra’s blatant error and grave abuse of discretion in hastily reversing his previous exclusion of Zaldy Ampatuan from the charges without giving his client’s constitutional right on due process as well as procedural right, to properly refute within reasonable period the affidavit of new alleged witness Abdul Talusan whose late testimony lacks legal requirements to be considered even as newly discovered evidence.

"The right way is not always the popular and easy way," Villanueva was quoted in his petition, as saying, to stress that Agra hastily overturned on May 5 his unpopular April 16 order acquitting Zaldy Ampatuan due to intense pressures from the media, families of victims and other groups which may have wrongly confused justice with revenge or vengeance, as he further emphasized that justice cannot be sweepingly done for one popular side alone, but must be for both, especially for his client whom he claimed to be not part of the conspiracy in the multiple murder case.

Villanueva said the prosecution’s Motion for Reconsideration based on Talusan’s new affidavit was filed only on April 30 this year as he stressed the clear violation of his client’s right and opportunity to controvert affidavit which he claimed was speedily resolved by Agra only within five days with a May 5 reversal order. (April 30 was Friday. The following day (May 1) was Saturday and May 2 Sunday. May 3 was declared a holiday - for the May 1 Labor Day celebration.) The 2nd resolution was released on May 5.

In the petition which also asked the appellate court for the issuance of a temporary restraining order, Villanueva stated that Agra, who earlier upheld Zaldy Ampatuan's substantiated alibi, as proven by evidence of receipts of cellular phone calls, affidavit of a phone caller, and plane tickets that he was not present at the time of the November 22, 2009 alleged planning and the November 23 execution of multiple killings, which negated major prosecution witness Kenny Dalandag’s allegation that Zaldy was involved as a co-conspirator, erred and committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding probable cause on his 2nd Resolution dated May 5 against the petitioner based on the belated inadmissible evidence of Abdul Talusan due to blatant disregard of DOJ’s own rules on Appeal which states: "Evidence submitted for the first time on appeal shall not be admitted. If submitted, the reviewing prosecutor shall disregard it."

He also stated that the admission of new evidence with undue haste violated his client’s right on constitutional guarantees on due process to react on the new evidence against him.

"What the Justice Secretary did was to trivialize the Petitioner’s right to substantive and procedural due process and make them work for his benefit and not for the noble ends of justice. He has put a greater premium on the pressures of public opinion than on his duty as a fair and impartial instrument in the dispensation of justice...Sadly, he has opted to listen to the unintelligible voices of the mob, rather than of his own clear conscience."

Villanueva further clarified in the petition that prosecution’s presentation of new evidence was even “false and misleading” and contradicts the only other prosecution’s affidavit on record. Contrary to the prosecution’s claim, the new piece of alleged evidence "belatedly introduced or presented in the Supplemental MR does not in any way corroborate or validate but, in truth and in fact, contradict the previous testimony of witness Dalandag on material points, viz: Dalandag said that he allegedly saw Petitioner at the house of Datu Andal Ampatuan Sr., in Shariff Aguak town in Maguindanao at around 7 p.m. on November 22, while Talusan stated that he allegedly saw the petitioner arrived at the said place only around 11 p.m."

"And Dalandag said that petitioner allegedly attended the meeting that transpired at 7 p.m., but Talusan said that petitioner was not present during the purported meeting at 7 p.m., precisely because the latter allegedly arrived only at about 11 p.m. The prosecution, by its own act, even impeached or discredited the credibility of Kenny Dalandag. In effect, the two affidavits contradict each other on very material points."

Zaldy Ampatuan’s father, Datu Andal Ampatuan Sr., and his brother, Datu Unsay town mayor Andal Ampatuan Jr., and others accused in the killings have also been charged as principals by inducement and by direct participation in the grisly murders.

Zaldy Ampatuan and Akhmad Ampatuan were previously excluded in the multiple murder case. Due to Agra’s May 5 reversal order on the basis of Talusan’s new affidavit, the Justice Secretary ordered the inclusion of Zaldy Ampatuan and Akhmad Ampatuan as principals in the charge sheet.

Villanueva’s petition, however, noted: "…Agra’s opinion as to the insufficiency and weakness of Kenny Dalandag’s testimony remained unperturbed,” as he stated that the same opinion was “strengthened when he maintained that it was only on the basis of the new affidavit that he even reconsidered his earlier resolution as to Zaldy Ampatuan and Akhmad Ampatuan"

But Villanueva stressed that the belated affidavit of Talusan could not be admitted or considered by Secretary Agra in his second resolution for obvious violations of other constitutional due process as well as procedural requirements.

Dalandag and Talusan had reportedly recanted their statements against the former ARMM governor Zaldy Ampatuan, as reported and broadcast on June 23, by radio network dzRH.