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Agra’s Option: Resignation (Updated)

April 20, 2010

Experienced election lawyer Alberto Agra is going out with a bang.

His gross and highly suspicious mishandling of the review of murder charges Against former ARMM governor Zaldy Ampatuan and cousin Akbar will cost him his months-long stint as Secretary of Justice and quite possibly his carrier as an officer of the court.

This writer doesn’t normally make definitive periscopes such as this.

But this injustice  outrage that the presidential alter ego has inflicted on the 57 Maguindanao massacre victims and surviving kin, and upon our collective sensibilities is AN OUTRAGE.

Here is the position of the 2,000-strong DOJ National Prosecution Service through Chief State Prosecutor Claro Arellano:

We are deeply concerned that the resolution will all the more convince a long skeptical public that our criminal justice system is impotent when the accused are politically influential. We recognize the appellate jurisdiction of the Secretary and his authority over us. But we being in the frontline still believe with due respect that there is probable cause to indict the two accused. It is along this line that we earnestly and respectfully request Acting Secretary Agra to revisit this resolution. Otherwise, we dishonor the primary reason for which our institution exists and its very name: the Department of Justice. It is a rule in evidence that positive identification by a witness prevails over a negative assertion. Interestingly and ironically, while Secretary Agra basically implies that witness Kenny Dalandag is very credible as to his positive identification of the other accused during the planning of the murders, he is not at all credible when he identified Zaldy Ampatuan. The supposed plane tickets, flight manifests and phone statements submitted by Zaldy have yet to stand scrutiny through cross-examination. The resolution basically redefined the plain and ordinary meaning of ‘probable cause.’ This is not the role of the DoJ in a preliminary investigation or in a petition for review. This is the sole function of the courts. Our task is merely to determine probable cause.

The state prosecutors’ position is anchored here:

Crespo vs. Mogul Doctrine
(The rule therefore in this jurisdiction is that) once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.
In order therefor[e] to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the court.

http://www.lawphil.net/judjuris/juri1994/aug1994/gr_106695_1994.html

Overnight these events came to light:

Secretary Agra released the resolution on Friday, April 16 as Zaldy and other members of the clan were being transported from their places of detention in General Santos and Davao cities to Camp Bagong Diwa in Taguig City on orders of the Quezon City judge presiding over the murder trial.

One of the lady prosecutors in the case told ABS-CBN’s Ces Drilon and Ricky Carandang that “copy of Agra’s resolution had been faxed to the GenSan Police Criminal Investigation and Detection Group (CIDG) at around 1 p.m.”

This despite the fact that Agra told Drilon and Carandang he had signed the resolution around lunchtime of April 16. The two journalists could not help wondering after talking to Agra “if the Ampatuans had moles in the DOJ.”

At their own impromptu news conference, the protesting state prosecutors  asked how Agra, who took over as acting justice secretary in March, “could have gone over the voluminous evidence and records of the case when the prosecutors themselves, who have been on the case since November, have difficulty putting together the pieces of the entire picture.”

This indeed IS AN OUTRAGE.

1st Update:

Malacanang is saying President Aquino, “while not being a lawyer is reviewing Agra action.”

Mr agree, for his part issued a strong denial of suspicions that money changed hands.

He refuses to name the state prosecutor who actually drafted his resolution.

But the former GMA election lawyer did not deny the allegation on Vice Mayor Toto Mangudadatu that he also once acted as election attorney of the Ampatuans.

More disturbingly, the (in) justice secretary has not explained why he considered that supposed airline manifests just recently submitted by the Ampatuans to support their alibi of not being in Maguindanao on the day of the mass murders.

Protesting prosecutors have pointed out that the manifests should have been subjected to examination as to their authenticity and duly entered as new defense evidence in the case.

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