The Ampatuans are asking the Supreme Court to stop "warrantless arrests" that could be conducted by the Department of Justice (DOJ) against any member of their family in connection with the Ampatuan massacre.

Maguindanao Governor Datu Andal Ampatuan, his son Autonomous Region in Muslim Mindanao (ARMM) Gov. Zaldy Ampatuan and six other Ampatuans filed a petition before the SC seeking the issuance of a temporary restraining order (TRO) enjoining government authorities from arresting them without a warrant considering that no preliminary investigation had been afforded them for their "supposed complicity" in the Maguindao massacre.

Other petitioners in the case are Norodin "Nord Ampatuan" Datumanong, Akmad Ampatuan, Saudi Ampatuan, Jr., Bahnarin Ampatuan, Jr., Sajid Islam Ampatuan, and Akmad "Tato" Ampatuan, Sr.

The Ampatuans, through their lawyer Philip Sigfrid Fortun, named Justice Secretary Agnes Devanadera, Chief State Prosecutor Jovencito Zuño, Senior State Prosecutors Leo Dacera, Rosanne Balauag, Anjanette Ortille, Rassendell Rene Gingoyon, Niven Canlapan, Aldrin Evangelista, Lamberto Fabros, Assistant Prosecuting Attorney Xerxes Garcia, Prosecutors Rami Guiling, Akilali Balt, Al Calica, Edilberto Jamora, Felipe Vicente Velasco, Elmer Lastimosa, Armed Forces of the Philippines (AFP), Philippine National Police (PNP) and National Bureau of Investigation (NBI).

The petitioners stressed that Devanadera's order for a warrantless arrest against them and other suspects has no legal basis since more than a week has already lapsed from the time the Maguindanao massacre was committed on November 23, 2009.

Under Rule 113 of the Rules of Court, the petitioners noted, the instances where a peace officer or a private person may arrest a person without a warrant "when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and when the person to be arrested is a prisoner who has escaped from a penal establishment…"

'Warrantless arrest not applicable'

Contrary to Devanadera's claim, the petitioners insisted that warrantless arrest during a hot-pursuit operation is applicable only if a crime has just been committed and the arresting officer has personal knowledge that the person to be arrested has committed it.

"Public respondent Devanadera, therefore, has neither right whatsoever nor any legal basis to direct the arrest of petitioners by the AFP, PNP, and NBI," the Ampatuans added.

They further noted that in several instances, the Supreme Court has struck down warrantless arrest whenever there was still opportunity to secure a warrant.

Devanadera, according to the petitioners, has all the time to secure arrest warrants against them

Furthermore, the Ampatuans argued that before an arrest may be carried out, a warrant must be first issued and one of the procedural requirements for the issuance of such is the conduct of a preliminary investigation.

They added that it is only after determination of probable cause during preliminary investigation that a judge may then issue warrants for the arrest of suspected criminals upon the filing of the corresponding information and after his personal determination of probable cause.

"The arrest of the accused can be ordered only in the event that the prosecutor files the case and the Judge of the Regional Trial Court finds probable cause for the issuance of a warrant of arrest…Clearly, therefore, in the case of petitioners, no warrant may be issued without first holding preliminary investigation, filing the corresponding information in court, and without the judge personally determining the existence of probable cause," they stressed.

Thus, the petitioners added, the order made by Devanadera was "unjust and beyond her authority" as justice secretary.

The petitioners said they were referring to Devanadera's pronouncements made on November 27 and 28, on various broadcast and print media that the government would be taking an aggressive stance and would cause the arrest by AFP, PNP and NBI of the members of the Ampatuan family on the basis of the doctrine of "hot pursuit" and "continued police operations."

“Anticipated moves”

Devanadera, in a press conference, said however that she had anticipated that the Ampatuans would question the actions of the government in the investigation and prosecution of those responsible for the massacre.

“We have anticipated it. We have already made a study and our position is defensible,” she said.

She said that aside from Ampatuan Jr., other members of the powerful clan are still considered as suspects. She said the evidence against them are getting stronger based on the “increasing” number of witnesses providing statements against them.

“We have been receiving statements positively identifying those at the crime scene. I just don’t want to go into the details because the investigators have not formally filed those statements with the Department of Justice (DOJ),” she said.

The DOJ chief also indicated that they will no longer pursue warrantless arrests against the other members of the powerful Maguindanao clan. She said it is already more than a week since the gruesome killings, which took at least 57 lives, including 30 journalists.

“With regard to the warrantless arrest, several days have already passed so we have to consider some aspects because it might no be allowed anymore. Anyway, it does not mean that the DOJ has no other options to bring them to justice. We have other options,” said the justice secretary.

More Ampatuans to be charged

The petitions of the Ampatuans came as the DOJ did not accept the recommendation of the PNP-Criminal Investigation and Detection Group (CIDG) to file charges of 7 counts of multiple murder against 13 people allegedly involved in the massacre.

Deputy Director General Jefferson Soriano said that this was because some of the respondent's addresses were incomplete.

The DOJ wants to have similar timelines in the filing of cases. The recommendation was based on the testimonies of the witnesses.

Soriano also confirmed that some other members of the Ampatuan clan are among those who will face charges, but he declined to name them.

He also said that they expect more people to be charged in connection with the crime, as the investigation continues.

Devanadera, meanwhile, said that they expect the PNP to submit a complete charge sheet.

“Death threats”

Devanadera also revealed that she and some of the prosecutors working on the Ampatuan massacre investigation have received messages threatening them to go easy on the case.