Danilo Reyes [Staff member, Asian Human Rights Commission]: "The decision of the Department of Justice (DoJ) that 197 people can be prosecuted for multiple murders in the deaths of 57 people in the November 2009 Maguindanao massacre, based largely on "positive identification" could be a concern. In order for the case to have the possibility of securing a conviction in trial, it cannot afford to depend largely on witnesses' oral testimonies and on the principle of "positive identification" alone.

In a country like the Philippines, where the public prosecutors and court judges still rely heavily on oral testimonies for deciding a "probable cause" to go for trial or to convict a person respectively, the prosecution of cases face the risk of being dismissed for lack of evidence or that the entire case could collapse once witnesses recant their testimonies or have their credibility questioned.

In order for the "positive identification" to stand in trial, it requires not only a mere facial identification of the accused by a witness, but also an adequate proof that the witness knew of or had met the accused before the crime took place. In the argument contained in the DoJ's resolution, however, this reasoning has not been fully explained. The fundamental requirements in which each witness should have knowledge to each of the accused has not been adequately mentioned. Having charges filed in court is not enough assurance that the families of the victims will obtain redress.

The Philippines has the reputation of poor conviction rates in cases of extrajudicial killings of human rights and political activists. For example, of over 900 cases of killings of activists reported since 2001, only three are known to have resulted to conviction. Most of the cases either could not be filed in court or were dismissed for lack of evidence, the failure to protect witnesses or the failure of the police to collect and preserve needed forensic evidence from the crime scene.

One example is the case of Enrico Cabanit, a land reform activist murdered in Panabo City in Mindanao on April 24, 2006. The local police failed to secure the material evidence needed from the crime scene; for example, not all the spent shells were recovered. They also failed to take photographs and sketches of the crime scene. Further, Cabanit's body was not subjected to autopsy and post-mortem examination, thereby deliberately depriving the possibility of promptly obtaining forensic evidence regarding the cause of his death.

Although police investigators were able to produce sketches of the gunmen based on witness accounts, their descriptions contradicted those of other witnesses present at the crime scene. The police also deliberately weakened the case by planting false witnesses as those who provided the gunmen descriptions were later found out to be persons who work as police informants or assets.

Cabanit's daughter, Daffodil, who is herself an eyewitness to his father's murder, was never afforded any protection. Her father's case ended up not having filed in court.

Meanwhile, in the Maguindanao massacre case, police investigators have been seen on television allowing onlookers to dig up dead bodies with bare hands at the crime scene. The process of autopsies and the collection of excavated bodies from the crime scene were also completely disorganized. On one occasion, two families of the journalist victims ended up confused and squabbling over one dead body.

Given the inability of the investigators to appreciate and employ forensic evidence as exposed in the early stage of investigation, oral testimonies should not be largely depended upon in the prosecution of this case. The government prosecutors must ensure the evidence stands in trial. In the Philippines, filing of charges in court provides no guarantee that victims would obtain redress and that perpetrators are punished.

In fact, early on in this case's investigation the DoJ lacked the urgency to even file it with the court as required by the time set by court rules. Under Rule 112 of the Revised Rules of Criminal Procedure, the public prosecutors should have completed the investigation and the determination of "probable cause" within 50 days, but it took the DoJ over two months in this instance.

Also, the DoJ's failure to conclude promptly that the Ampatuans, a powerful local clan, along with dozens of policemen, soldiers and militiamen could be prosecuted for the massacre demonstrates the reality of how difficult it is to pursue the prosecution of cases due to the government's failure."