Push by Marcos for Aquino Case Acquittals Told

MANILA —  Seated in his pajamas, with his wife beside him, an ailing Ferdinand E. Marcos calmly but firmly told four government prosecutors and the presiding judge how to ensure the acquittal last year of the 26 men suspected of killing former opposition leader Benigno S. Aquino Jr., the chief prosecutor in the case testified Monday.

During the two-hour conference in a small study of his presidential palace on Jan. 10, 1985, more than a month before the trial of Aquino’s accused assassins began, Marcos told the prosecutors to reduce the charges that they planned to file against several of the defendants. The former president personally selected the judge who would hear the case, and, chief prosecutor Manuel Herrera recalled from a witness stand Monday, Marcos told them “to put on a show” during the actual trial.

‘Thank You for Cooperation’

Marcos, according to Herrera, concluded the conference with the words:

“Gentlemen, I’m tired. I want to rest. Thank you for coming. Thank you for your cooperation. I know how to reciprocate.”

Monday’s account by former prosecutor Herrera before a special Supreme Court commission was the first formal evidence that Marcos had personally tampered with the most celebrated murder case in Philippine history, an assassination that many analysts believe led to Marcos’ downfall last February. In interviews with the Philippine media less than two weeks after Marcos fled the nation Feb. 25, Herrera and other prosecutors accused the former president of such tampering.

Aquino was shot to death on the tarmac of Manila International Airport on Aug. 21, 1983, as he was returning from self-exile in the United States to challenge Marcos’ 20-year rule. He was surrounded by more than 2,000 soldiers when he was shot in the back of the head just a few feet from a military escort party taking him into custody.

Military officials said at the time that Rolando Galman, a professional hit man hired by Communists, had pulled the trigger. Galman was killed by soldiers moments after Aquino was shot, but many Filipinos remain convinced that he was set up and that Marcos was responsible for both deaths.

Aquino’s wife, Corazon, who took over as president after Marcos fled, has said repeatedly that she suspects Marcos in the killing. She has labeled last December’s acquittal of all the accused in the case “unbelievable.” She also has vowed to try to reopen the case, although she promised that her government will treat it no differently from other alleged human-rights violation cases left over from the Marcos years.

The special Supreme Court commission that began 30 days of hearings into the Aquino assassination Monday has now become the third official government panel to investigate the three-year-old murder.

After a one-year investigation, a civilian fact-finding commission recommended in October 1984 that 25 soldiers and one civilian, among them Marcos’ cousin and former chauffeur, Gen. Fabian C. Ver, armed forces chief of staff, be charged with premeditated murder. Marcos ordered that the findings be turned over to an ostensibly independent government prosecutor’s office called the Tanodbayan, or guardian of the nation.

Veteran Prosecutor

Deputy Tanodbayan prosecutor Manuel Herrera, 62, a veteran prosecutor with half a century in government service, was put in charge of the two-month criminal investigation, and in testimony Monday, he said he and three other prosecutors had drafted a resolution calling for the indictment of all 26 men for first-degree murder.

Even before the resolution was signed by Herrera’s superior, though, Herrera said Marcos had obtained a copy and issued “an urgent call” for the prosecutors and chief judge of the court that would hear the case to report to his palace immediately.

Herrera testified that they were led in the back entrance of the presidential palace and greeted in a small, private study by a “puffy-faced” Marcos, who told them “the boys are frantic because they will be kept in the city jail”--a direct reference to the accused soldiers’ fears they would all be charged with murder and jailed pending trial.

Marcos then told Herrera’s boss, Chief Tanodbayan prosecutor Bernardo Fernandez, to charge some of the higher-ranking suspects--among them, Ver--with the lesser offense of accessory to murder. Herrera testified that Fernandez later did that despite his, Herrera’s, protests.

Throughout the conference and subsequent trial, Herrera testified that his superior referred to Marcos as “Olympus--the highest mountain.” And he said he was told that Marcos was monitoring all the proceedings on a closed-circuit television set in his palace.

In addition, Herrera quoted Marcos as saying at the palace conference that all 26 men should be put on trial in the special court because he could control the verdict in the case and it would “erase the possibility of double jeopardy.”

“During all the two hours, the former president never mentioned in a direct way to convict or acquit them,” Herrera said Monday. “But during the two-hour conference, there can be no mistake that he wanted them acquitted.

“At one instance, the president said, ‘You know, if the (soldiers) are not charged now, and I may not stay in office--if I am not in office--there may be other witnesses . . . so, it is better that they be charged now and be acquitted.”

Herrera’s testimony cut to the heart of the legal controversy surrounding the Aquino case, now that Marcos is out of office and Aquino’s widow is running the country, a question that the Supreme Court is attempting to answer through the month of hearings.

The question is whether the government may retry Ver and the other suspects without violating the constitutional provision against double jeopardy, which protects citizens, once acquitted, from being tried again for the same offense.

Question of Retrial

Attorneys in the Aquino government contend that a retrial is permissible if they can prove that due process was violated during the original trial through Marcos’ direct intervention.

“Double jeopardy assumes the judge who tried a defendant was impartial,” Herrera, who is still serving as a government prosecutor under Aquino, said after Monday’s hearing. “In this case, there is no double jeopardy because there was no danger for them to be convicted from the beginning.”

Attorneys for the accused soldiers disagree.

“Any attempt to retry this case constitutes double jeopardy,” said Antonio Coronel, Ver’s attorney in the case, after the commission hearing was recessed. Ver fled the country with Marcos and is also living in exile in Honolulu.