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.


Do you know who was Suwaib Upham?

Would Justice secretary Agra have acted more favorably to the application for witness protection of Suwaib Upham if he had been presented to the DOJ by someone other than me or Centerlaw? A true commitment to justice should transcend personal prejudices. As a consequence of the secretary’s prejudice, a key witness who went to Manila to testify, at great personal risk, has since been killed due to the government’s refusal to even give him an audience.

And for the record, contrary to Agra’s contention, Suwaib Upham was represented by his own, independent lawyer. And yes, a letter from state prosecutors prove that DOJ officials knew of Upham and the nature of his testimony. So it is not true, as Secretary Agra claims, that Upham was never presented to the DOJ. Perhaps he means that Upham was never brought to the premises of the DOJ. Is the loss of this key witness really due to a bickering over the venue? Was Secretary Agra’s reason for refusing to entertain Upham really this … simple? Because the issue of whether Upham would be subject to the supervision of the government was moot when he sought to present himself as a state witness. That he however would exercise his right to first appear in a neutral place, such as the office of the Commission of Human Rights, was surely the prerogative of someone who was not yet certain that he would be admitted as a state witness.

Secretary Agra refers to Suwaib Upham as a “killer.” Well, in his testimony, Upham admits he was. In fact, he said only seven bullets were left in  his magazine after he and six other shooters finished firing their rounds against the journalists killed in Ampatuan, Maguindanao on November 23, 2009. Does that make Upham’s testimony less legitimate? Does it make him less eligible for witness protection?

I submit that a government truly committed to ensuring that justice is served would have at least given Upham the time of the day.

Secretary Agra also said something today in one of his TV interviews that was an insight about how truly he looked upon Upham: he said that we should have presented this witness if not to the DOJ, then to the NBI. Agra forgets that one of the key suspects in the Ampatuan massacre, Datu Unsay Mayor Andal Ampatuan Jr., a man that Upham himself held with great alarm, was at that time  detained at the NBI.


A key witness in the Maguindanao-Ampatuan massacre was shot dead last June 14, 2010 in Parang, Maguindanao. Suwaid Upham, who publicly surfaced under the name of “Jessie,” was shot to death by a still unidentified gunman. “Jessie” surfaced in March of this year to apply to be admitted into the Government’s Witness Protection Program. He was never interviewed by the DOJ despite the having previously arranged twice to be interviewed by a panel from the Department. In both instances, the department agreed on the time and date of the interview at a venue to be selected by “Jessie”. That initial and first interview was scheduled in the office and in the presence of CHR Chair Leila de Lima. The personnel of the Witness Protection Program did not, however, appear on the agreed time and date stating belatedly that “Jessie” should appear in the premises of the DOJ. Jessie refused to appear in the DOJ premises because Jessie himself had information that high-ranking officials of the Department were working with the Ampatuans. DOJ. Acting Secretary Alberto Agra would later dismiss the cases against   Zaldy and Akmad Ampatuan.

In his narration before his counsel and the media, Jessie admitted that he was   one of seven gunmen who shot and killed 58 victims of the Maguindanao massacre. He identified the other gun men as including Andal  ”Unsay” Ampatuan Jr., the latter’s cousins Kanor Ampatuan, Ban Ampatuan, and Mama Ampatuan; PO1 Ando Masukat and one he knew only as Kudja. He publicly stated that members of the Ampatuan clan including Former Governor Andal Ampatuan Sr. and ARRM Governor Zaldy Ampatuan ordered the killings.

Jessie stated that amongst the first to be killed was the wife of Maguindanao Governor-Elect Toto Mangundadatu. He stated that after the first batch of killing, Unsay then ordered all seven gunmen to fire indiscriminately at all members of the ill-fated convoy, many of whom were still in their vehicles. He also recounted how witnesses pleaded for their lives. Jessie also positively identified at least 4 members of the media as amongst the fatalities of the massacre.

“Jessie” was in Manila for two months from March to April. He returned to Mindanao when it became apparent that the DOJ would not give him protection.

In his interview with international television network Al Jazeera, Jessie recalled how Unsay bade farewell to his men before surrendering to authorities. Unsay was quoted by Jessie as saying “Walang magyayari sa kaso nila. Kaya ng pera namin silang lahat”.(Nothing will happen to their case. Our money can buy all of them)

Centerlaw, counsel for 14 media victims of the massacre,  condemns the killing of Jessie in the strongest terms possible. At the same time, it lays the blame for his death to Acing Secretary Agra and his principal, Gloria Macapagal-Arroyo, who refused to accord any protection to Jessie. There is blood in Agra and Mrs. Arroyo’s hands. May they forever by hunted by the souls of Jessie and the rest of the victims of the massacre. #30#


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