The Aroyo governments drops the pretence it is capable of prosecuting its political allies implicated in the slaughter of reporters. The only hope for the victim’s family is that the upcoming elections will deliver change argues Harry Roque

The Philippine Supreme Court has repeatedly ruled that there is a national constitutional commitment to freedom of the press. This is for three reasons: one, freedom of the press is indispensable to the development of a free market place of ideas where the true test of truth is the “power to be accepted in this market place of ideas”; second, it enables us to find the ever elusive truth, and third, most importantly, it allows the formation of public opinion which could be effective in holding to account despotic regimes. That’s the theory anyway. In reality, freedom of the press is under threat in the Philippines. This is a jurisdiction where the president’s husband filed an unprecedented number of libel charges against any journalist who wrote an unflattering article about him, where journalists are jailed not just for libel, but for covering news worthy events after police authorities arrogated for themselves what events could legally be reported on. Worse, journalists get killed in unprecedented numbers. One hundred and thirty seven journalists have been killed since President Gloria Macapagal Arroyo took office, including at least 32 in the world’s deadliest attack on journalists ever: the Maguindanao massacre.

It was in this context that on April 19 the acting secretary of justice dismissed 57 murder charges against two members of the Ampatuan family: Governor Zaldy Ampatuan of the autonomous region in Muslim Mindanao and town mayor Akmad Ampatuan. Prior to his latest order, a 10-man prosecuting panel established the existence of probable cause against 197 persons, including the two absolved Ampatuans. Originally, only vice-mayor Andal “Unsay” Ampatua Jr was charged for the crime. The decision to charge 196 additional persons is problematic since many of them were charged on the basis of conspiracy. Convicting all would be difficult given that witnesses have stated that not all of the accused were at the scene of the crime or the place where the massacre was planned. Addressing the legal basis for the dismissal against the two Ampatuans, the acting justice secretary concluded that the two had “strong evidence of alibi”, ignoring the fact that jurisprudence views an alibi as the weakest defence and could not prevail against the testimony of a witness that both men were involved in planning the massacre.

The dismissal was brazen. Many victims had been cynical about the sincerity of the Arroyo government to convict a family that delivered crucial votes in the 2004 presidential elections, a feat repeated in the 2007 senatorial elections where all 12 opposition candidates for the senate also got zero votes in the Ampatuan bailiwick of Maguindanao. Still, the victims families hoped that the barbarity of the act, coupled with the international clamour to prosecute this brutal crime, would at least compel Arroyo to conduct an extended charade of sorts before absolving them. The victims never imagined that partial absolution would come so soon as it did: merely five months after the massacre.

It still seems unlikely that the justice secretary will reverse his decision. Soon the public prosecutors will file a motion to implement their bosses’ decision in the court where the multiple murder charges are pending which we, the private prosecutors will surely oppose.

Normally, private prosecutors appear only under the direct control and supervision of the public prosecutors, as it is the state that is the offended party in a criminal case. This potential conflict between the private and the public prosecutors — coming at a time when the public prosecutors themselves have declared publicly that their boss was wrong — is unusual. The public and the private prosecutors normally belong to the same team.

But this conflict, resulting in the “privatisation” of the state obligation to prosecute those who violated the victims’ right to life, is the latest in a series of privatisations of state obligations. This process started when the 197 suspects — all of whom are state organs: policemen, soldiers, members of civilian militia forces, and elected public officials — were investigated for their possible involvement in the crime. With law enforcers charged with the commission rather than investigating the commission of a crime, the investigation of had to be privatised.

Here, the international media community acted fast, sending two leading forensic experts: Dr Jose Pablo Baraybar of the UN Tribunal for the former Yugoslavia and Cris Cobb-Smith, who has extensive experience as field investigator of mass murders in the Balkans and in the Middle East. Likewise, with all the accused being state organs, witnesses, including one who admitted to being one of the triggerman and who witnessed the massacre from beginning to end, have had to seek refuge in a private sanctuary rather than the government’s witness protection program. Truly, this process of privatising now even the prosecution of the case attests to a complete abrogation of the state obligation to investigate and prosecute at least 57 murders, thanks to the fact that all the suspected perpetrators are public officials.

This latest decision to absolve two of the Ampatuans on weak legal grounds has at least removed the last iota of doubt that the victims cannot expect justice from the current administration. With elections to be held on May 10, 2010, they are optimistic that change is coming and with it, new hopes for achieving justice to the victims of the worst massacre of journalists in history.

Professor Harry L Roque, Jr is list counsel, International Criminal Court; executive council, International Criminal Bar; chair, Center for International Law. He represents 14 victims of the Maguindanao massacre in domestic and international litigation