Who killed SAF 44, not who killed Marwan

I am glad President Aquino, in a televised press conference last Thursday, put to rest the issue of who killed the terrorist Zulkifli bin Hir, alias “Marwan,” an issue that he himself reopened when he visited the Inquirer office last week.

Relevant question. On the other hand, in my humble opinion, the relevant question that pines for reopening is: Who killed the 44 Special Action Force commandos, collectively known as the SAF 44? More pointedly, who are responsible for their massacre?

The President partially answered this important question when he said that 90 people from the Moro Islamic Liberation Front (MILF), the Bangsamoro Islamic Freedom Fighters (BIFF), and private armed groups will be charged for the death of 35 members of the 55th Special Action Company.

That is a good start but, with due respect, I believe it is far too feeble a response, as I will explain later. Meanwhile, let me discuss why it is now pointless to look further into the issue of who killed Marwan.

Conflicting versions. The Senate, the House of Representatives and the PNP’s Board of Inquiry (BOI) have already investigated the incident ad nauseam. By this time, both houses of Congress should have gathered enough data to enact remedial laws to prevent a recurrence. After all, congressional inquiries are held primarily in aid of legislation.

For its part, the BOI reported, in what appears to be a first person account, that the terrorist was killed in a firefight with the SAF, with a “shot… in the chest, causing his death,” thereby implying that he was standing (not lying down) when he was shot.

In contrast, the MILF claimed that “the trajectory of the bullets indicates that the fatal shot did not come from the shots fired outside the house as the bullet holes are roughly 18 inches above the floor… In all likelihood, the fatal shot must have been fired at close range and while Marwan was lying on the floor.”

At this point, it is no longer possible to verify the location of the “bullet holes” because Marwan’s house has already been burned to the ground. It is also extremely difficult to exhume the corpse to conduct a post-mortem medico-legal examination because the grave’s location is not known.

Justice for the SAF 44. The SAF 44 families are still grieving and clamoring for justice for their fallen. Their wounds cannot heal and their pains will fester unless the gnawing questions on who are responsible for the tragedy are satisfactorily and speedily answered.

P-Noy’s assurance that charges for the death of 35 SAF members, or even for all 44 of them, is too feeble—as I said earlier—to satisfy the quest for justice. In the first place, his targets for prosecution, some members of the MILF, BIFF and others are still considered rebels and are thus beyond the reach of the law. Just serving them with subpoenas would be extremely difficult.

In the second place, there are several officials, civilian and military, involved directly or indirectly in the planning and execution of the Mamasapano caper. Have some of them failed in their leadership duties? Or assumed functions and powers beyond their authority? Or neglected to coordinate with other officials, resulting in, or contributing to, the death of the SAF 44? I am not accusing anyone of any crime. Precisely, that is for the probers to determine.

In the third place, we are now in the election season, but the search for justice should not be tainted with any partisan attack. I have great faith in Justice Secretary Leila de Lima but she would be resigning soon to run for the Senate. Thus, it is essential that the public views the probe to be free of any partisan agenda to spare or shield any high civilian or military official involved.

I am thinking of an independent panel like the Agrava Board that investigated the murder of

Ninoy Aquino at the Manila International Airport tarmac in 1983. It was composed of retired Court of Appeals Justice Corazon Agrava (chair), lawyer Luciano Salazar, businessman Dante Santos, labor leader Ernesto Herrera and educator Amado Dizon, assisted by then Dean (later Chief Justice) Andres R. Narvasa as general counsel and lawyer Bienvenido A. Tan Jr. (later Ambassador to Germany) as public coordinator.

After holding 125 sessions, hearing 194 witnesses and consuming 20,377 pages of transcript, the Agrava Board concluded that several military officers, including then AFP chief of staff Fabian Ver, conspired to kill Ninoy. Despite this, the Sandiganbayan (SBN), in a decision dated Dec. 2, 1985, penned by Justice Manuel Pamaran, acquitted all the accused.

However, after the Edsa revolution of 1986, the newly-reconstituted Supreme Court nullified the Pamaran verdict and returned the case to the SBN for a retrial. In a 177-page decision issued on Sept. 28, 1990, the SBN convicted 16 soldiers, including Brig. Gen. Luther Custodio, of Ninoy’s murder.

This judgment became final after the Supreme Court dismissed the soldiers’ petition for review on July 23, 1991. Again, on March 8, 2005, the Court unanimously denied a belated motion for a third trial.

My point is: Without the credible factual findings of the independent Agrava Board, the judiciary may not have been able to decide courageously and with finality the accountability of those responsible for Ninoy’s death.

Although the fallen SAF 44 may not be as famous as Ninoy, they deserve equal justice. As we lawyers fondly say, “Let justice be done though the heavens may fall.”

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