DOJ's Report on the Mamasapano Incident Released - Filing of Criminal Charges Against 90 Suspects Recommended
After reviewing the Report of the Joint National Bureau of Investigation - National Prosecution Service Special Investigation Team (NBI-NPS SIT) on the January 25, 2015 Mamasapano Incident, as submitted to her last 16 April 2015, Secretary of Justice Leila M. De Lima has given the go signal to release the same to the public.
In its 224-page (actually, 225 pages, inclusive of the signature page) Report, the NBI-NPS SIT has recommended the filing of charges of Direct Assault complexed with Murder or the Complex Crime of Direct Assault with Murder under Article 148, in relation to Article 248 of the Revised Penal Code (RPC), as well as Theft under Article 308, RPC for the taking of the firearms, other fighting equipment and various personal belongings of the SAF commandos, against ninety (90) suspects, as identified by eyewitnesses, principally one for whom the NBI-NPS SIT has designated the codename "MARATHON".
To quote from the Report:
"It was murder all the way and around when the MILF, BIFF, and PAGs crossed the river over to the cornfield to finish off the dying members of the 55th SAC, by means of gunshots to the head and other parts of their bodies. There was a conspiracy among the MILF, BIFF and PAGs elements to kill the 55th SAC commandos. This conspiracy took the form of the phenomenon that is called 'pintakasi'. The MILF, BIFF and PAGs elements were impelled by a common intention, and banded together against the 55th SAC to kill and wipe out the latter." (Executive Summary, p. xxxii)
Among the most noteworthy factual conclusions in the Report are:
• The 55th SAC fired the first shot that started the firefight at the cornfield in Brgy. Tukanalipao, Mamasapano.
• There was a "pintakasi" by the MILF, BIFF and PAGs against the 55th SAC.
• By 8:00AM of January 25, 2015, the MILF, BIFF and PAGs who fought the 55th SAC already knew that they were engaged in a firefight with police officers.
• Some 55th SAC commandos tried to surrender, but the MILF, BIFF and PAGs continued firing at them until the commandos would no longer fight back because many of them were already dead and those still alive were severely wounded.
• After the firefight, MILF elements crossed the river over to the cornfield to finish off the dying 55th SAC members.
According to the Report, "The point where criminal liability clearly attached for the MILF, BIFF and PAGs involved in the 'pintakasi' was when they learned that they were shooting it out with police officers. At that point, they became liable for direct assault." And, "when the firefight deteriorated still into the killing of the 55th SAC members, even as the latter already raised their arms in surrender, the perpetrators became liable for the complex crime of Direct Assault with Murder. Treachery and abuse of superior strength are easily two (2) qualifying circumstances that attended the killing of the 55th SAC members at that point, who, according to witnesses, number to a thousand" (at p. 212).
In the Team's appreciation of the facts and available evidence, the incident was not a "massacre", as graphically described by the Senate, nor a simple "misencounter", as clinically suggested by the MILF. Rather, "[t]he complicated truth is somewhat in between these two extremes" (at p. 196).
The NBI-NPS SIT deemed inapplicable the provisions of Republic Act (R.A.) No. 9851 (The Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity), or the country's domestic IHL. It pointed to the existence of a ceasefire agreement between the GPH and MILF on account of which there has been no clash since 2011, hence, no armed conflict as may fall within the purview of IHL. "Even assuming that there is an existing state of armed conflict between the State and the Muslim rebels involved in Mamasapano, still the IHL expressly removes from its coverage isolated and sporadic acts of violence" (at P. 209).
Even then, the NBI-NPS SIT approached its inquiry "from one immovable standpoint: the State has sovereignty over all its territory and that the areas militarily occupied by the MILF in Maguindanao and elsewhere in the Philippines are part of it." As stressed in the Report:
"The Ceasefire Agreement between the Government of the Philippines (GPH) and the MILF, despite its laudable purpose of laying the groundwork for eventual autonomy for certain Muslim areas in Mindanao, does not remove these parts from Philippine territory, nor divest the State of its power to exact punishment for violations of its penal laws. The State's ability to exercise such power is deemed read into any agreement it enters into.
"Being an inseparable part of the Philippines, Maguindanao or any other place physically occupied by the MILF for that matter, should be accessible to GPH forces whenever the latter discharges its duty to protect the State from groups who threaten its very existence. If the residents in that area, whether MILF, BIFF, PAGs, or even civilians stand in the way of law enforcement operations and they have no legal justification, they should be prosecuted—no different if the same set of facts happened in a cornfield or riverbank in another part of the country. In short, Philippine penal laws that apply elsewhere, must apply perforce in Maguindano. They must apply to ordinary civilians, MILF, BIFF, PAGs, and to SAF commandos equally in Maguindano." (p. xix, Executive Summary; p. 204, text of the Report)
Note that the recommendation to charge 90 probable respondents, at this point, pertain only to the killing of the 35 55th SAC commandos who perished at the cornfields of Brgy. Tukanalipao. The same does not cover yet those involved in the killing of the nine (9) 84th SAC/Seaborne commandos at Brgy. Pidsandawan. Said the Report: "There are no third party eyewitnesses so far regarding the assault by the 84th Seaborne on the house of Marwan and its consequences. The affidavits of the surviving 84th SAC members do not identify the particular persons belonging to either MILF, BIFF or PAGs, or whether these persons actually knew at the time that they were resisting and fighting police officers." It added: "Another set of eyewitnesses along the likes of MARATHON, are necessary to give another perspective on what happened immediately before, during and after Marwan was killed by the SAF commandos at Brgy. Pidsandawan." (At p. xxxvi, Executive Report; also, pp. 221-222, text of the Report)
The same is true as to the deaths of 3 or 4 civilians at a langgal or small mosque at Sitio Amilil in Brgy. Tukanalipao being attributed to P02 Lalan. While the MILF Report identified the alleged witnesses against Lalan, the MILF did not grant access to the NBI-NPS SIT to interview these witnesses and assess their testimonies.
Hence, the NBI-NPS SIT's further recommendation to pursue further probe into the incident at Brgy. Pidsandawan, which resulted in the death of nine (9) 84th SAC/Seaborne commandos and also of three (3) to four (4) civilians, and even the MILF casualties. The Team also recommended for the continuation of the investigation "as to the American participation in Oplan EXODUS, where the interests of national security can be properly balanced with the national demand for justice and to know what truly happened on January 25, 2015 at Mamasapano."
In a Memorandum (internal) to the NBI-NPS SIT dated 20 April 2015, the Secretary of Justice (SOJ) has given the Team another two (2) months, or until 20 June 2015, to undertake further investigation along the directions outlined in the Report.
In the same Memorandum (internal), the SOJ has urged the NPS component of the Team to re-examine its view that IHL is inapplicable, given their view that there is currently no armed conflict and that the "isolated" nature of the Mamasapano Incident as a "pintakasi". The Team is asked to determine what specific crimes under R.A. No. 9851 may be said to have been committed by the Muslim rebels and PAGs under the factual/evidentiary setting of the Mamasapano incident, and explore the possibility of preparing charges under both the RPC and R.A. No. 9851. In the meantime, the SOJ has deferred action on the Team's recommendation as to the specific charges to be filed against the 90 probable respondents.
As further recommended by the NBI-NPS SIT, and primarily for security purposes, the identity of the witnesses, as well as of the suspects/probable respondents, cannot as yet be disclosed at this point, or at least until the filing of the formal complaint for preliminary investigation. "To prematurely identify these suspects before the charges against them are filed, gives these suspects [who are presently at large] all the more reason to evade the law and will make it difficult for law enforcement agencies to arrest them, perhaps requiring another Oplan EXODUS type of operation for their capture" (p. xxxv, Executive Summary).
Hence, the copies of the Report to be released today will contain redacted portions, concealing the names of the witnesses and suspects, and other particulars as may give away their identity. Also concealed in the redacted version of the Report are the names of the NBI field agents comprising the investigation component of the Team. Only the President and the SOJ have been given the unredacted/complete version of the Report.
The SOJ has commended the members of the NBI-NPS-SIT for its remarkable work, and took note of "the exceptional effort undertaken by the team to lay down the comprehensive sequence of events in accordance with the gathered affidavits and testimonies of the witnesses." Noting that "the factual findings arrived at in the Report are as credible as any finding of fact that has been arrived at either in the PNP-BOI or the Senate Report," the SOJ expressed confidence that the Report "will be very well received as the defining Report so far on the Mamasapano incident." (DOJ press release)