When Journalists Are Killed, Witnesses May Be Next
By Elisabeth Witchel
As the day approached for Haider Ali to give his testimony at Anti-Terrorism Court III inside Karachi Central Prison, a venue chosen for security, it seemed a pivotal moment for Pakistan's journalists also neared.
Patricia Ortega is shown holding a photo of her husband, murdered radio host Gerardo Ortega. A witness to Ortega's 2011 killing was found dead in his jail cell in 2013. (AFP/Noel Celis)
Haider had identified four out of five suspects in police custody accused of carrying out the murder of Wali Khan Babar, a well-known television news presenter for Geo TV who was assassinated on his way home from work on January 13, 2011. Unlike the cases of nearlytwo dozen other journalists murdered for their work in Pakistan over the last decade, Babar's had progressed to a trial, and it offered a rare hope that the seemingly endless cycle of impunity and violence against Pakistan's press might finally come to a halt.
That hope was doused when, on the night of November 11, 2012, less than 48 hours before Haider would appear before the court, two unidentified men shot and killed him on the street outside the building where he was staying. The death of one of the last remaining known witnesses to Babar's murder--at least four others linked to the prosecution were previously killed, including witnesses, informants, and investigators,--brought justice to a standstill. At the time of this writing, not one individual had been convicted of these crimes.
Killing witnesses has become an all too easy and effective method of stymying justice in the many cases of journalists murdered around the world. With poor standards for forensic evidence the norm in many countries where repeated targeted violence against journalists takes place, witness testimony is crucial to pursuing convictions. However, as was the case with Haider, the authorities often fail to grant witnesses adequate protection. Their stories also reveal something about those killers--thugs and masterminds who wield such immense power and influence that they are able to manipulate justice through corruption, violence, and fear.
"Babar's case can be a master script for any James Bond-like film or any movie on the underworld," said Mazhar Abbas, a prominent journalist in Pakistan who is the director of current affairs at Express News TV and a former secretary-general of the Pakistan Federal Union of Journalists. "And the way he was killed, and those directly or indirectly involved in the investigation, raised many questions."
In the last 10 years, 348 journalists have been murdered for their work worldwide. In only a handful of cases--one in 10--have any perpetrators been brought to trial and sentenced. The few and precious gains made in the fight against impunity are largely the product of the testimony of witnesses. But the risks are immense, and many pay dearly.
Some witnesses are courageous colleagues making immense sacrifices, such as Edgar Amoro, who was gunned down in 2005 after identifying the killers of fellow Philippine journalist Edgar Damalerio. Others are accused accomplices turned state witnesses, likeYuri Nesterov, injured in a grenade attack while under police escort in the Ukraine.
In the last four years, at least six witnesses in cases of murdered journalists have been killed along with at least eight others connected to investigations, including federal investigators looking into the case of Armando Rodriguez, who was shot in his car in Juarez, Mexico, in 2009. Add to this the threats that curtail, silence, or drive into exile other witnesses and the reach of intimidation is pervasive.
Nowhere are these elements more overtly in play than in the trial in the massacre at Ampatuan Town in the Philippines. At least 195 suspects have been charged, and dozens are still wanted for carrying out the 2009 ambush in Maguindanao province on the island of Mindanao. The victims, 58 in total, including 32 journalists and media workers, were slaughtered as they accompanied local politician Esmael Mangudadatu to submit his papers to run for governor against Andal Ampatuan Jr., son of the incumbent governor, Andal Ampatuan Sr. Their bodies were buried en masse with a backhoe.
Many expected that such ruthless, large-scale carnage would surely be a tipping point--a wake-up call for the Philippine government to prove its justice system is viable. Yet, four years later, there have been no convictions. The targeting of witnesses and family members has been a major factor behind this failure.
Suwaib Upham was the first key witness to the Maguindanao killings to be eliminated--shot and killed by an unidentified gunman on June 14, 2010, in Parang municipality, Maguindanao. Upham had been a militia member for the Ampatuan family, accused of perpetrating the massacre, and had agreed to testify in exchange for protection. According to Human Rights Watch, the Philippine Department of Justice was still considering his request for protection at the time of his killing. Several months before Upham's murder, two relatives of witnesses were killed and a third was injured after being shot multiple times. "Witnesses won't come forward if there is a 'second Maguindanao massacre' of witnesses and their families," Elaine Pearson, deputy Asia director of Human Rights Watch, said in a statement at the time.
Another wave of violence struck the trial in 2012. In May that year, the body of Esmael Amil Enog, an important prosecution witness, was found. The manner of his killing--he was hacked to pieces and stuffed into a bag--was viewed as a warning to others. Enog had testified the year before in a Manila court that another accomplice, Alijol Ampatuan, had ordered him to drive 36 militiamen to what turned out to be the site of the massacre.
Enog "is one of the very few witnesses with direct testimony as to the armed men who were present that day," said Prima Jesusa Quinsayas, a lawyer working for the Freedom Fund for Filipino Journalists in the Philippines, assisting families of victims as a private prosecutor. The Philippine justice system allows outside counsel to assist public prosecutors at the behest of victims or their families. "When he testified, not all accused had been arrested," Quinsayas said. "Enog was able to identify only four in court as the rest were not yet among those detained and arraigned."
Enog's testimony led prosecutors to seek Alijol Ampatuan as a state witness. They found him too late. His body was discovered in June that year.
"We feel worried for the security of the other witnesses, even for the security of our lawyers and the families of the victims," said Mary Grace Morales, whose husband and sister, both journalists, were among the 2009 Ampatuan victims. "What if all of our witnesses will be gone? Who will testify in court?" she said. "When all of those who witnessed the crimes are also dead, the trial will be useless. Justice will not be served."
The loss of witnesses is of particular concern for this trial, since forensic evidence is widely considered to be flawed. "The case would collapse if you rely on evidence," said Jose Pablo Baraybar, executive director of Equipo Peruano de Antropologia Forense (EPAF), a Peruvian-based NGO which promotes justice in cases of human rights abuses by providing forensic training and investigation services. He has conducted several training sessions for the Philippine police. "If you kill witnesses," he said, "then there is nothing."
Baraybar and a U.K. global security expert, Chris Cobb-Smith, who has investigated other cases involving killed journalists, went to the crime scene in Maguindanao at the behest of the National Human Rights Commission and other human rights groups. What he found resembled the scene of a natural disaster rather than Hollywood's CSI franchise. Families, national police, local police, the army, and other interested parties had trampled through the site with little coordination. "The whole thing was a mess," Baraybar said.
Basic equipment--refrigeration to preserve the bodies, cameras, mapping technology--was severely lacking. Cobb-Smith recalls borrowing a metal detector from his hotel's security guard. They found shells, dentures, and other key evidence that hadn't been picked up by the police. "As a result, the evidence has too many anomalies," Cobb-Smith said.
Insufficient resources and expertise to document human rights abuses is common in many countries. "It's a current theme among NGOs to concentrate on forensics. I get sent photographs weekly," said Cobb-Smith, who is often asked to evaluate evidence but finds it difficult because basic training hasn't been applied to its collection, such as documenting from which angles the photos were taken.
The murder of Wali Babar in Pakistan and the Ampatuan massacre in the Philippines are among the most dramatic cases of murdered journalists in the world. The deaths prompted domestic and international condemnation of both countries and their outrageous records of impunity.
Leaders in both countries have made public commitments to prosecute the killers, but if witnesses are so vital to successful convictions, how is it that, even in these cases where public pressure is weighty, the authorities fail to protect so many of them?
Both countries have the ability to guard witnesses in these cases. After Babar's murder in Pakistan, the Sindh High Court, the regional court of appeals for Karachi cases, orderedthe provincial government to provide security for the witnesses as well as for the lawyers in the case. The order was in line with Pakistan's Anti-Terrorism Act of 1997, which requires the protection of judges, counsel, public prosecutors, witnesses, and other persons concerned with court proceedings.
The Philippines' system is more evolved, with an established witness protection program. Though criticized as severely lacking resources and prone to security lapses, it has yielded some successes. Under the leadership of prosecutor Leo Dacero, who died in 2010 in the early days of the Ampatuan trial, the protection program played a pivotal role in gaining convictions in the murders of two journalists, Edgar Damalerio and Marlene Garcia-Esperat.
But these government efforts are faltering in the face of the unchecked power wielded by the groups believed to be responsible. In a CPJ special report in 2013, journalist Elizabeth Rubin examined impunity in Pakistan’s violence against the news media, including the case of Wali Babar Khan. Suspects arrested in Khan’s murder are linked to the Muttahida Quami Movement (MQM), a political party that is the main heavyweight in Karachi’s political turf wars, with influence among the police and the government and buttressed by an illegal armed wing.
Rubin’s report suggests that an all-out assault against individuals connected to the investigation and prosecution of Babar’s murder has been waged to keep the MQM beyond the reach of justice. The full extent of the violence employed over the last two years against those with a role to play in bringing Babar’s killers to justice is truly shocking.
In addition to Haider, a police informant, Rajab Ali Bengali, was found dead in a sack within two weeks of the murder--and with him, a note naming head constable Arshad Kundi, the informant’s handler, as the next victim. Just days later, two men on a motorcycle shot police constable Asif Rafiq, who had been on the scene of Babar’s murder and identified the killers’ vehicle. Kundi was soon after killed in another drive-by motorcycle attack. The brother of Police Chief Shafiq Tanoli, who was part of the Babar murder investigation team, was also killed in a move that Tanoli told reporters was intended to pressure him. This onslaught of murders took place within four months of Babar’s murder. A year and a half later, as a trial got under way, Haider was assassinated.
More recently, on September 26, 2013, Naimat Ali Randhawa, a prominent lawyer engaged to be legal counsel for the Babar case, was murdered. Randhawa worked on many high-profile cases and led the Pakistan Muslim League-Nawaz but, according tonews reports, the suspect in custody works for the MQM and the police believe the lawyer’s pursuit of justice for Babar was the motivation behind the killing.
Rubin's report also looks at threats against two prosecutors working on the case, Muhammad Khan Buriro and Mobashir Mirza. Both men were fired and then fled the country. They told Rubin they had been warned by clerks in their own office who were working as informants for the MQM. According to Buriro, the clerks told him and Mirza that all documents were sent to MQM headquarters. "If you want to see your families," the two were warned, "don't touch this case."
After Haider’s murder, Abdul Maroof, the new prosecutor, raised concerns about security. “This is how strong their network is. They located him and killed him just two days before he was supposed to appear in the court,” Maroof told the media in Pakistan. “It is negligence on the part of the police for not protecting him.” After the Randhawa murder, news reports said Maroof expressed concerns to the court for his own safety should he continue to pursue the Babar case.
When Rubin was asked for this essay about reactions to the killing of Haider and other witnesses among journalists and people she had interviewed, she said: "No one was too surprised. You don't mess with the MQM."
Things are not so different in the Philippines. The Ampatuan family, often described as warlords, similarly dominate their province of Maguindanao, through political office and their private militia. Human rights groups have pointed to the administration of former President Gloria Macapagal Arroyo as having greatly facilitated the rise of Ampatuan power in exchange for political support.
While senior members of the family, including Andal Ampatuan Jr., formerly a local mayor, and Zaldy Ampatuan, the former governor of the Autonomous Region in Muslim Mindanao, are in jail awaiting trial in the massacre--in total eight Ampatuans have been named as primary suspects-- many still fear their reach. Over the course of the trial, in addition to the killings of witnesses and others involved in the case, victims’ family members--essential to the pursuit of justice in the criminal case and civil complaints--say they have been approached with bribes and threats. Extensive Ampatuan resources have mobilized a defense that has brought year after year of legal stalling tactics, leaving witnesses and complainants vulnerable and under prolonged psychological and financial strain.
“Many members of their clan continue to hold government positions. We, the families of the victims, are nobodies against the powerful Ampatuans,” family member Mary Grace Morales said in a 2012 speech to the Foreign Correspondents’ Club of Thailand on the anniversary of the massacre.
Combine these coercion tactics with a protection program lacking in funds, capacity, and accountability, and the job of witness can be a hard one to fill. In a 2009 CPJ report, Shawn Crispin looked closely at the decimated life of a witness in the Philippines. Bob Flores was walking with his friend and colleague Dennis Cuesta when assailants fatally shot Cuesta, a radio program director and anchor. Flores, determined to see justice, identified those he saw shoot Cuesta, including a local police officer, to prosecutors, Crispin reported. Then, Flores left his job and uprooted his wife and children, to live on a meager stipend that did not cover his family’s basic expenses. Cuesta’s suspected killer has not been tried and, by late 2013, Flores remained in the witness protection program.
Victims and advocates also worry that important witnesses are prematurely removed or not accepted into the program. In January 2013, Dennis Aranas, an accomplice-turned-witness in the 2011 murder of Gerardo Ortega, a popular radio host in Puerto Princesa City known for exposing corruption, was found dead in his jail cell. Though Aranas' death was initially labeled a suicide by hanging, a second autopsy at the behest of the familysuggested he had first been strangled. Shortly before his death, Aranas was removed from witness protection, ostensibly due to a legal technicality.
"It is alarming because Aranas was under the witness protection program. Then he was taken out of protection. We found him dead," Michaella Ortega, Gerardo Ortega's daughter and spokeswoman for the family, told CPJ at the time. "It affects the morale of the other witnesses by showcasing how inept the government is in ensuring the safety of witnesses." No further steps have been taken to investigate Aranas' death, according to the Ortega family. A gunman in Ortega's murder was convicted in May 2013, but two men believed to have ordered the killing are at large.
These challenges are amplified in the Ampatuan case. Attorney Quinsayas, who has also received threats multiple times over the past few years, pointed out that the sheer number of individuals charged tests the capacity of the witness protection program. “It would be humanly impossible for a few eyewitnesses to identify the almost 200 accused and account for their actions that contributed to the accomplishment of the crime,” she told CPJ.
Quinsayas said that a "perennial lack of funds" has plagued the program and that she is concerned that the 25 million Philippine pesos (US$580,000) the government initially budgeted for witness costs for the case are nearly used up. In response to inquiries by family members and their advocates into how witness protection funds have been spent on the trial so far, Department of Justice officials said spending is confidential.
Tight resources have led to much wrangling between the private prosecutors and the Department of Justice over priorities. In response to Quinsayas' request for a security detail to accompany one witness making an affidavit before a public prosecutor, she was told to simply accompany the witness herself. In the end, she had to personally appeal to locally based soldiers to escort them. "The Witness Protection Program of the DOJ is more focused on protecting the program rather than the witnesses," she said.
If there is any upside to the many injustices in the Ampatuan massacre and the Babar murder, it is that these two cases have put a magnifying glass on the issue of killers who murder journalists with impunity in the Philippines and Pakistan and worldwide. In early 2013, the United Nations began to implement an interagency Plan of Action for the Safety of Journalists and Issue of Impunity. The plan, drafted by UNESCO, calls on states to take steps to improve investigations and prosecutions in cases of journalist murders, and, among other measures, improve journalist safety. The plan is global, but it names four countries as initial areas of focus, one of which is Pakistan. The others are Nepal, Iraq, and South Sudan.
Some of this attention may set change in motion and revive the Babar case as well as those of the murdered witnesses. In September 2013, Pakistan’s Chief Justice Iftikhar Mohammad Chaudhry took Karachi law enforcement agencies to task. Chaudhry asked for a report on the authorities’ failures in the Babar case, including an explanation as to why the witnesses were not provided security despite the Sindh court orders. He also demanded that the killers of the witnesses be arrested. Around the same time, the Sindh provincial assembly passed a witness protection bill to set up a formal witness protection program.
"Wali Khan Babar's murder has at least awakened a Pakistani provincial Assembly in Sindh province to pass a witness protection bill," said journalist Mazhar Abbas of Express News TV. He called it "a ray of hope for those witnesses who are not ready yet to stand up and testify in the murder cases of other journalists killed in Pakistan." It is a hope shared by many in Pakistan, the Philippines, and elsewhere, who want to witness justice, rather than its derailment.
Elisabeth Witchel, a CPJ consultant, served for many years as the organization’s journalist assistance coordinator. She also launched CPJ’s Global Campaign Against Impunity.