The prosecution’s bid to turn into a state witness the backhoe operator who supposedly dug the graves of the massacre victims was opposed by the defense team handling the 2009 Maguindanao Massacre case.

In a 15-page comment, defense lawyer Philip Sigfrid Fortun asked Judge Jocelyn Solis-Reyes of Branch 221 of the Quezon City Regional Trial Court, to dismiss the petition of the prosecution in dropping alleged backhoe operator Bong Andal from the list of the accused in the massacre.

Fortun argued that there is “no absolute necessity” for the testimony of Andal, since the prosecution has already presented four eyewitnesses “who had completely testified on the planning and implementation of the massacre.”

“Here, not only were there four eyewitness accounts, there was a judicial declaration that the testimonies of ordinary witnesses were enough,” the defense team said in their comment.

They (defense) added that eyewitnesses Nuruddin Mauyag, Rasul Sangki, Esmael Kanapia and Lakmodin Saliao, who identified some members of the Ampatuan clan as perpetrators of the massacre have already been presented.

In their comment, the defense panel cited rulings, which noted that an accused may not be discharged if “his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution.”

“The expedient of discharging an accused as state witness should be availed of only when there is absolute necessity for his testimony, as when he alone has knowledge of the crime,” said the defense.

They stressed that Andal could not be excluded from the charges because he “purportedly fled and almost successfully evaded arrest” for over three years since the commission of the crime.

“He was arrested only after a major military and police operation was conducted indicating that he could never have been found as he was effectively in hiding,” the defense noted.

On November 24, Andal was arrested in Midsayap, North Cotabato in an entrapment operation conducted jointly by the local police and the Army’s 40th Infantry Battalion.

He earlier sought the protection from the Criminal Investigation and Detection Group and has since been admitted to the witness protection program.

Solis-Reyes has allowed him to remain in Camp Crame following the motion of the prosecution, which said that Andal’s life would be in danger if he “will be confined at the detention facility where he will co-mingle with the other accused against whom he wishes to testify.”