Posted by: nupl | November 26, 2009

Andal Ampatuan Jr. et al. must be arrested immediately through lawful warrantless arrest

The Philippine National Police has stated that it has no suspects yet in the Ampatuan massacre though it considers the motive behind the mass murder as “political”. Justice Secretary Agnes Devanadera has likewise been declaring in the media that no suspects have been officially named and arrested as the authorities are still conducting their investigation on the massacre which so far has claimed the lives of 57 people, 22 females and 35 males. The innocent victims include 25 journalists so far and two lawyers.

Malacanañg officials have been saying that “due process” must be observed in the apprehension of the perpetrators, hence not a single arrest has been made.

But are the authorities correct in invoking “due process”? Is the PNP correct in saying that witnesses must first execute affidavits before anyone can be arrested? Is Justice Secretary Devenadera correct in her declaration that investigation must be conducted first before anyone can be arrested?

All these excuses are just that – pure excuses.

In ordering an arrest, you do not need proof beyond reasonable doubt. Such quantum of evidence is needed only during the trial to ensure the conviction of the accused. We are not yet at the trial stage in the Ampatuan massacre; we are still in the stage of apprehension of the culprits.

In ordering an arrest, all you need is probable cause. It simply means that a crime has been committed and the person to be arrested has probably committed the same. And a warrant of arrest may even be dispensed with.

There are instances where an arrest without a warrant is lawful. The wisdom behind this rule is for the immediate apprehension of criminals because the issuance of a warrant of arrest takes time.

Only judges can issue a warrant of arrest. Prior to such issuance, a complaint has to be filed first before a public prosecutor who shall conduct a preliminary investigation, which shall take time. And only if the investigating prosecutor finds probable cause will he issue a Resolution, which has to be approved by the city or provincial prosecutor, as the case may be. After such approval, the investigating prosecutor shall file an Information in court charging the accused. The Information shall be raffled to determine which sala shall take cognizance thereof. Upon receipt of the Information by the judge, he shall conduct a preliminary examination to determine whether probable cause exists for the issuance of a warrant of arrest. Only then that a warrant of arrest may be issued.

Thus, due to the long time needed before a warrant of arrest may be issued, instances of lawful warrantless arrest have been clearly and categorically enumerated under the Rules of Criminal Procedure.

What are these instances?

Rule 113 – Arrest

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In the application of Rule 113, Section 5 (b), the term “personal knowledge” therein should not be strictly construed.

“Personal knowledge” of facts in arrests without a warrant under Section 5 (b) of Rule 113 must be based upon “probable cause” which means an “actual belief or reasonable grounds of suspicion.” The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.”

In the Ampatuan massacre, there are reasonable grounds of suspicion that the Ampatuans, particularly Andal Ampatuan Jr., are probably guilty of committing such gruesome act of mass murder, thus:

(1) Ampatuan Jr. has been positively identified by witnesses and wife of Vice Mayor Ismael Mangudadatu as the leader of the 100 armed men. This information was directly relayed to Vice Mayor Mangudadatu by his wife through cellphone immediately when their convoy was forced to stop.

(2) The backhoe used by the killers in the digging of the graves is owned by the province of Maguindanao, as such is clearly printed on said equipment. The governor of Maguindano is Andal Ampatuan Sr.

(3) The victims were murdered while they were on their way to the Comelec office to file the certificate of candidacy of Vice Mayor Mangudadatu as Maguindanao governor. He will challenge Ampatuan Jr. for the said post as it is already the last term of Ampatuan Sr. as Maguindanao governor.

(4) Chief Inspector Zukarno Adil Dicay, Maguindanao provincial director, was seen by witnesses as among the armed men led by Ampatuan Jr. Thus, C/Insp. Dicay was relieved of his post. As C/Insp. Dicay has direct and personal knowledge of the massacre, he saw the killers while actually committing the massacre in his presence.

(5) The Ampatuans have absolute control over the province of Maguindanao and they even have a private army.

(6) The Ampatuans, particularly Ampatuan Jr., are completely silent about the imputations against them as the mastermind behind the massacre.

These circumstances are enough to establish probable cause for the immediate lawful warrantless arrest of Ampatuan Jr., C/Insp. Dicay and the members of the Ampatuan private army.

The reason why not a single arrest has been made so far? Malacañang is afraid that the Ampatuans might disclose what really happened during the 2004 and 2007 elections in the counting of votes in Maguindanao. Thus, the negotiation between Sec. Jesus Dureza and the Ampatuans for the former’s request for “cooperation” from the latter in the investigation.

Imagine, a government official requesting for “cooperation” from the Ampatuans. Secretary Dureza is even acting as if he were lawyering for the Ampatuans.

Whether the Ampatuans would cooperate or not, that is their problem. It should not be Malacañang’s problem.

Authorities should apply the full force of the law if the Ampatuans are not willing to cooperate. If the Ampatuans resist the arrest and the confiscation of their firearms and the dismantling of their private army, authorities should simply apply the full force of the law, plain and simple.

If the Ampatuans fire upon the authorities in the course of these actions, authorities should return the favor to the Ampatuans, plain and simple. The Philippine National Police and the Armed Forces of the Philippines have more than enough manpower and firepower to assert the law in Manguindanao and force Ampatuan Jr. et al. inside prison cells.

Anything less than these courses of actions is injustice to the victims and their families, plain and simple.

Atty. Julius Garcia Matibag
National Union of Peoples’ Lawyers (NUPL)

NB. First posted on Facebook on November 25, Wednesday.

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