CAGAYAN DE ORO CITY (MindaNews / 01 March) — The 64th Battalion, who had information about the abduction as early as around 10:30 am of November 23, 2009, decided to go to Masalay when camouflage-wearing armed men denied them passage in the blockades. By 1:30 p.m., reinforcements from the 64th Battalion arrived at Masalay and located the crime scene.
At the site, the members of the 64th Battalion cordoned off the area and there they saw a backhoe which appeared to be still running. The waylaid vehicles were found onsite, some of which were crushed and found dropped inside the hole. The authorities saw bodies scattered and sprawled on the ground. Some of the victims had their hands tied, clothes were open, killed inside their vehicle and bodies crushed; their items scattered all over the ground. There were two grave sites. The first grave site measure more or less 15 feet deep and 10 feet wide. The second grave site was not yet finished given that the bucket of the backhoe was still entrenched in it. Fifty seven (57) bodies and nine (9) vehicles were recovered. The authorities also found firearms, personal belongings at the crime site.
On November 24, 2009, Sultan Kudarat and the City of Cotabato were placed under State of emergency. At the house of Datu Sajid Ampatuan, P/Ins. Maguid, Atty. Cynthia, Atty. Sampulna, and Atty. Pantoja talked about how to hide the backhoe, one suggesting that they may explain that the backhoe was there because of the quarry operation. Major Dicay drafted in a yellow piece of paper a narrative that the incident was a bomb threat, false alarm.
Meantime, Secretary Dureza turned over the living person of Datu Unsay to Justice Secretary Agnes Devenadera who ordered the NBI to effect arrest. The Joint Task Force of the AFP and PNP took Datu Unsay into custody. Several members of the 1508th PMG were also relieved of their duties. Others were placed under protective custody. In December 2009, martial law was declared in the province of Maguindanao which was lifted after the Ampatuans were arrested.
In January of the next year, Dicay called P/Insp. Diongon that Rainier Ebus, identified as security escort of Datu Unsay, be helped to escape for the promise of Php5 million for Ebus and Php10 million for Diongon. Dicay also offered money for Diongon to buy fare tickets. Later on, Maguid asked Diongon not to implicate him in the incident.
In May 2010, Lt. Col. Cabangbang met at a mall in Davao City, Lakmodin Saliao, whom he knew as a personal assistant of Datu Andal Sr. Saliao relayed that he had been receiving threats that somebody was trying to harm him.
As far as qualifying circumstances is concerned, the court found the presence of treachery with the 57 victims being unarmed to defend themselves. Evident premeditation when it was proved that several meetings by Datu Unsay and cohorts to discuss the mode and manner of its execution. However, the court did not appreciate cruelty when evidence shows that the unnecessary shots were made when the victims were already dead.
The court appreciated the aggravating circumstance of uninhabited place to have attended the offense. The location where the crime site was found is uphill with ditches. It is away from national highway and could be traversed upward through a narrow rough road mountainous terrain.
In all, the court convicted 43, including the Ampatuan brothers namely Datu Andal Ampatuan Jr and Zaldy Ampatuan, of 57 counts of murder and sentenced to reclusion perpetua without parole. Twenty-eight co-accused including police officers were also convicted of 57 counts of murder and sentenced to 40 years.
Fifteen were sentenced to 6 to10 years for being accessories to the crime. Fifty five others were acquitted “on the ground of reasonable doubt,” including the Ampatuan patriarch’s son, incumbent mayor of Shariff Saydona Mustapha, Maguindanao Datu Sajid Islam Ampatuan, and son-in-law Akmad Ampatuan Sr.
Aside from the maximum penalty of 40 years imprisonment without parole, the 28 convicts were each ordered to pay each of the heirs of 54 victims P350,000 in damages and indemnities, aside from loss of earning capacity and actual damages sought by the families.
Eighty (80) accused remain at large. Because of this, the court ordered the cases against them archived.
On the issue of whether or not Reynaldo Momay was among those killed, unfortunately the court came up with the following findings: that before November 23, Reynaldo Momay worked as a photojournalist for Midland Review; that on November 23, between 6-7 in the morning, witness Judy Agor (wife of Reynaldo Momay’s nephew) conversed with Momay for the latter wanted to borrow the motorcycle of her husband. Momay said that he was attending a press conference at Buluan, Maguindnao. Yet none of the witnesses recovered the body of Momay but the investigators recovered a denture at the massacre site. According to a witness, the denture belonged to Momay. The live-in partner of Momay was able to identify the denture because she cleaned it every night for the last six years. The one who made the denture, Mr. Patricio Abellar, also relayed to the investigators that he made the dentures. The court ruled that the probative value of the dentures does not lead to his death.
The narrative of the witness that she cleaned the denture every night for the last six years is implausible. As to the account of Abellar, the court also did not give credence to his testimony as the account does not ensure with moral certainty that the denture found in the site belonged to Momay. Simply put, there is no sufficiently relevant proof connecting the denture with the person of Momay. Second, the fact that a denture was found at the crime site – assuming it was Momay’s – does not perforce mean that Momay died in the hands of the accused.
The records do not show that the denture has any distinguishing and unique characteristics marking sufficient to exclusively connect it to Momay. Because of all of these, the court concludes that the 58th count of murder will not prosper for lack of corpus delicti and all of the accused were acquitted of this charge. With better forensic investigation, the evidence to convict could have been gathered. The Momay family would still have to wait longer to obtain justice. (MindaViews is the opinion section of MindaNews. Antonio “Tony” La Viña of Cagayan de Oro City is former Dean of the Ateneo School of Government. He teaches Constitutional law in several schools in Manila and Mindanao)