Last of five parts
NAGA CITY (MindaNews / 15 Sept) — On the occasion this time of the 11th anniversary of the Zamboanga Siege of September 9-28, 2013, we discuss the most significant legal developments since the last tenth anniversary with our foregoing article on “Continuing Questions of Justice and Peace.” The most significant development is the Order of Dismissal on December 20, 2023 of the three Chairman Nur Misuari Crim. Cases Nos. 152737-39 by the RTC Pasig City Branch 159 Judge Elma M. Rafallo-Lingan “for insufficiency of evidence.” Earlier that year, in an Order of March 16, 2023, she directed the Department of Justice (DOJ) “to conduct a reinvestigation of the complaints in view of the legal ramifications brought about by the termination of the cases against a majority of the accused because of the plea bargaining agreement they entered into by them [sic] with the prosecution and with the concomitant disregard/abandonment of evidence corresponding to them and to afford accused Misuari the full measure of his right to due process.” (underscoring supplied)
Unfortunately, we do not have a copy of the reinvestigation Order for a fuller appreciation of its rationale, as even a copy of the most important Order of dismissal was hard to secure from the RTC, with the simple request for the same even having to go all the way up to the Supreme Court, despite the constitutional “right of the people to information on matters of public concern” under Art. III, Sec. 7, and jurisprudence upholding public access to a court decision in particular.
The DOJ reinvestigation resulted in a Resolution dated 25 October 2023 recommending the dismissal of the complaints against respondent Misuari, one for rebellion and two for war crimes of the taking of hostages and of using them as human shields, “due to insufficiency of evidence.” In the main, the RTC went along with the DOJ Resolution. The RTC, in dismissing the charges, was “convinced that the prosecution can no longer establish the guilt of accused Misuari.” Of course, as in fact the prosecution was no longer seeking even to present evidence, as it was itself asking for the dismissal of the complaints. Stated otherwise, the court could not be holier, or be seen to be holier, than the prosecution.
As for the court’s reinvestigation Order concern “to afford accused Misuari the full measure of his right to due process,” this may be misplaced because he had all the opportunity to be heard by himself and counsel but, as noted by the DOJ Resolution, he “never participated in the court proceedings.” He had filed a Motion to Suspend Proceedings and Enforcement of Warrants of Arrest on 14 October 2016 for Peace Talks purposes, and this was granted by the Resolution dated 27 October 2016 of then RTC Pasig City Branch 158 Judge Maria Rowena Modesto-San Pedro. While this deference to the high cause of peace was understandable, it has tended to render him “untouchable,” esp. with the intercession of high officials of the Duterte administration. The trend will likely continue with the incumbent Marcos Jr. administration, with the irony of the late President Marcos Sr. being the first of no less than eight Presidents whom the now 85-year old Misuari has reckoned with.
The RTC Order of Dismissal of the Misuari Cases tacked first the two war crimes cases of the taking of hostages and of using them as human shields. Its key finding for their dismissal was this:
Moreover, the record fails to show that Misuari can be considered as “superior” who has “effective command and control” over the perpetrators of the siege. As clearly defined in R.A. No. 9851, a “superior” refers to a military commander or a person effectively acting as a military commander; or any other superior, in as much as the crimes arose from activities within the effective authority and control of that superior. Also, a person can be said to have “effective command and control” or “effective authority and control” when he has the material ability to prevent and punish the commission of offenses by subordinates.
The RTC Order does not elaborate much on the factual basis for this key finding, other than recalling one particular isolated affidavit-documented gun-firing incident committed by an MNLF member “on [his] own volition and did not act under a command of a superior.” The more relevant factual circumstances and legal reasoning for the finding of no command responsibility of Misuari for undoubdtedly MNLF-perpetrated hostage-taking and human-shield use are found in the DOJ Resolution which the RTC Order acted on favorably. Since the DOJ used similar factual appreciation and legal reasoning for the rebellion case, we shall go its Resolution’s discussion of the specific evidentiary matters shortly below.
We go back first to the RTC Order of Dismissal of the Misuari rebellion case. Its key finding for its dismissal was this: (underscorings supplied of lines exactly or predominantly lifted from the DOJ Resolution)
Clearly, accused Misuari is being charged for his alleged participation or execution of commands of others in the rebellion. However, as correctly observed by the prosecution during its reinvestigation, no one claims to have seen him during the attacks. While complainant Maria Isabelle Climaco, the then Zamboanga City’s Mayor, narrated that she had a telephone conversation with accused Misuari giving his commanders and leaders “a free hand,” this is insufficient to establish that he promoted, maintained and headed the rebellion. Prior to the alleged telephone conversation, she has no personal knowledge that the mobile number provided by accused Malik is owned by accused Misuari. Ditto with the affidavit of Father Michael F. Ufana, whose statements reveal that he supposedly knew Misuari’s leadership over the rebellion because accused Malik merely told him so. In fact, Father Ufana stated that the leader of the MNLF rebels that held him captive was accused Ustadz Malik Kabir, @Dhadz, and Ustadz Khabir Panagas….
The DOJ Resolution dealt with the Misuari rebellion case first before the two war crimes cases. It stated that “It is a matter of judicial record that MNLF members, in specific capacities, beyond reasonable doubt, committed Rebellion. Accordingly, they have been penalized for their crimes. Unlike them, respondent [Misuari] who was their alleged leader, never participated in the court proceedings, much less convicted of any crime for the same incident… It begs, therefore, the evidentiary question… if he headed the Zamboanga Siege.”
Per the DOJ Resolution, complainant Climaco’s narration that she had a telephone conversation with “Chairman Misuari [who] however informed me that he is giving his commanders and leaders a free hand,” is “vague. It hardly proves that respondent promoted, maintained or headed the rebellion.” This Misuari “utterance in question” was made, according to Climaco, after she over the phone “asked for his help concerning the ongoing violence and hostage taking in Zamboanga City.” The DOJ Resolution states that “complainant Climaco’s recollections are not doubted” but then a few sentences later states “It is possible that the person on the other end of the line is not respondent [Misuari].” It similarly dismissed the similar narration of prosecution witness Father Ufana this way:
Much like that of complainant Climaco’s, Father Ufana’s recollections are not doubted. However, his narration does not tend to establish that respondent [Misuari] promoted, maintained or headed the rebellion. A plain reading of his statement reveals that he supposedly knew respondent’s leadership over the rebellion because Malik told him so. He narrated that he overheard Malik giving updates to respondent on the situation in Zamboanga City. Further, he claimed to have had a telephone conversation with respondent using Malik’s phone. That it was respondent whom he overheard Malik was talking to, is also at best, a personal impression, not evidence. The same is true with the claim that respondent was on the other end of his phone conversation.
Even if we assume otherwise, their supposed conversation hardly suggests that respondent commanded the rebellion. Based from Father Ufana’s recollection, respondent aired to him his various sentiments against the government. He did not recall any claim from respondent that he commanded the rebellion. In fact, Father Ufana categorically stated that the leader of the MNLF rebels that held him captive was Ustadz Malik Kabir @Dhadz, Istadz Kabhir Panagas.
It is a bit disconcerting to see here how the DOJ impugns – or at least does not give sufficient credence to — these two key witnesses (against principal accused Misuari) of the prosecution which it represents. On the other hand, it says nothing at all about Misuari’s “denies having talked to complainant Climaco over the phone” in his Counter-Affidavit. But who really between MNLF Chairman Misuari, on one hand, and Zamboanga City Mayor Climaco and Fr. Ufana, on the other hand, is to be believed about their narrated phone talks with Misuari? Note that the DOJ Resolution at least had findings that both Climaco’s and Fr. Ufana’s separate “recollections are not doubted.” Misuari’s denial-lying about his phone talk with Climaco should have already raised red flags about his other denials.
That MNLF ground commander Malik provided Climaco with the cell phone number of Misuari so that she had better talk to him for the release of the hostages that Malik and his group of armed followers were then holding in Barangay Sta. Barbara shows that Malik was operating under the higher authority of the publicly known MNLF Chairman. Also publicly known is that Malik was a longtime field commander of the MNLF Misuari faction based in Sulu. That Misuari gave his commander and leaders “a free hand” while the Zamboanga Siege was already raging shows that he had “effective command/ authority and control” over them but chose not to exercise it when the going got rough.
Misuari’s higher authority over Malik was also shown when the hostaged Fr. Ufana stated that “in several occasions I heard over the phone the conversation of Nur Misuari and Ustadz Malik in giving updates on the situation in Zamboanga City based on the reports that Ustadz Malik receives from his field commanders in the area.” And that “Malik informed me personally that all the decision he made was coming from Nur Misuari and I [was] able to talk to him (Nur Misuari) on the phone yesterday, using the phone of Malik at around 6:00 o’clock in the morning…. Nur Misuari told me during our conversation thru mobile phone of Commander Malik that he was in Sulu…”
The DOJ Resolution to its credit recapitulated the essential points in ex-Mayor Climaco’s Reply-Affidavit and we now fully quote this 12-point recapitulation, as it is instructive:
1. She was urged to file a Reply-Affidavit, considering her personal knowledge of the facts and incidents that transpired during the Zamboanga Siege;
2. Respondent [Chairman Misuari] admitted that he is the head of the faction of the MNLF forces that laid siege to the City of Zamboanga. This admission acknowledges that he is the superior of the MNLF forces. Hence, these men would not attack Zamboanga City without his orders or without him acquiescing to it;
3. In accord with universal experience, it is obvious that had respondent not agree [sic] or commanded his forces to attack Zamboanga City, the atrocities that transpired would not have happened.
4. There were approximately five hundred (500) men from the MNLF-Nur Misuari faction that participated in the attack of Zamboanga City and committed atrocities against its citizens and properties. By this alone, it is obvious that the Zamboanga Siege was planned not by just some rogue commanders of the MNLF-Nur Misuari faction, but with the participation of respondent himself;
5. The Zamboanga Siege was pursued to accomplish the gargantuan objective of rebelling against the government, and this is aptly shown by respondent’s “rants” against the government on the peace process, which she patiently listened to when she spoke to him over the phone at that time.
6. Respondent’s admission of giving his commanders a “free hand” already articulated his involvement and participation in their commission. This statement constitutes a clear blanket authority, for his commanders to do whatever it takes to achieve the objective of taking away Zamboanga City from the government;
7. Father Ufana, in his Sworn Statement dated 21 September 2013, corroborated the admission of Commander Habier Malik/ Ustadz Malik that respondent is directly involved in the siege of Zamboanga City.
8. It is never a requirement for one to have participation in a crime that he be in the vicinity where a crime was committed.
9. Respondent masterminded the Zamboanga Siege and he revealed it by telling about his issues against the national government whom he accused of setting aside the Tripoli Agreement between the MNLF and the Philippine Republic;
10. It is too much of a coincidence that her testimony and that of Fr. Ufana regarding respondent’s disclosures have converged,
11. Respondent has clear motive to commit the crime charged; and
12. Respondent’s protestations that he is for peace is just plain deceit. The City of Zamboanga did not even hear a condemnation from him of the atrocities committed against its people and properties that resulted to grave financial ruins.
The foregoing points of ex-Mayor Climaco are quite sensible, reasonable, and grounded both by facts and by context. They are borne out by public and scholarly knowledge, even judicial notice, of contemporary history regarding Misuari, the MNLF and the Mindanao peace process. But the DOJ Resolution does not give those points due credit and weight. Instead, it unduly resorts to such evidentiary rules as proof of guilt beyond reasonable doubt and the hearsay rule, even going to the extent of volunteering a doubt that “It is possible that the person on the other end of the line [with then Mayor Climaco and hostaged Father Ufana] is not respondent [Misuari].” The DOJ could have done better in terms of better appreciating the positive testimonies of Climaco and Ufana over Misuari’s blanket denials (inc. lying about the phone talks), and in terms of reasonable inferences that may be drawn from even circumstantial evidence, not to mention public knowledge and judicial notice. And unfortunately, the RTC just went along with the DOJ, without even referring to its above-quoted 12-point recapitulation of the Climaco Reply-Affidavit, in what seems to be characteristic kid-gloves treatment of Misuari, even if understandable in deference to the continuing Mindanao peace process. Judgment call, as they say. But the prosecution Resolution through the DOJ recommending that the complaints against Misuari be dismissed in effect decided the matter for the RTC.
The rebellion and war crimes cases against Misuari the top MNLF leader are dismissed while, as the DOJ Resolution put it, “the State has successfully prosecuted a majority of the perpetrators” of the Zamboanga Siege who are his loyal MNLF followers, the proverbial “small fry.” The RTC Order of Dismissal does archive – for possible future prosecution — the cases against the identified and still at-large MNLF field commanders there, namely Ustadz Habier Malik, Assamin Hussin, Bas Arki and Ustadz Ismael Dasta. But siege accounts say that Malik for one had already long died from wounds incurred during that 2013 siege. For all intents and purposes, these cases have been terminated with the dismissal of those against Misuari.
The beautiful city and people of Zamboanga deserve better justice, even as they also deserve sustainable peace. Insha’llah. — #
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SOLIMAN M. SANTOS, JR. is a retired Judge of the RTC of Naga City, Camarines Sur, serving in the judiciary there from 2010 to 2022. He has an A.B. in History cum laude from U.P. in 1975, a Bachelor of Laws from the University of Nueva Caceres (UNC) in Naga City in 1982, and a Master of Laws from the University of Melbourne in 2000. He is a long-time human rights and international humanitarian lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer; and author of a number of books, including on the Moro and Communist fronts of war and peace. Among his authored books are The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001); How do you solve a problem like the GRP-NDFP peace process? Part 2 (Sulong Peace, 2022); and his latest, Tigaon 1969: Untold Stories of the CPP-NPA, KM and SDK (Ateneo Press, 2023). He also has a trilogy of books on his court work and practice: Justice of the Peace (2015), Drug Cases (2022), and Judicial Activist (2023), all published by Central Books, Inc., Quezon City.