Ombudsman affirms charges against Aquino for Mamasapano tragedy
14 September 2017
Ombudsman Conchita Carpio Morales has affirmed the finding of probable cause to charge former President Benigno Simeon Aquino III before the Sandiganbayan for the botched 2015 Mamasapano operation. Aquino will face trial for one count of violation of Section 3(a) of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) and one count of Usurpation of Official Functions (Article 177 of the Revised Penal Code).
In a Consolidated Order approved on 11 September 2017, Ombudsman Morales denied the separate motions for reconsideration filed by Aquino and complainants Volunteers Against Crime and Corruption (VACC) and affirmed the findings contained in the 13 June 2017 Consolidated Resolution. The Ombudsman stated that “President Aquino’s act of utilizing the services of the preventively suspended [Alan] Purisima for Oplan Exodus prior to and during its implementation, despite an OIC PNP Chief having been already designated, caused Purisima to perform under pretense of official position, the acts pertaining to the PNP Chief without being lawfully entitled to do so, in violation of Article 177 of the RPC on Usurpation of Official Functions.” It added that “President Aquino’s act of utilizing the services of Purisima for Oplan Exodus under the aforesaid circumstances constituted an act of persuading, inducing or influencing another public officer to perform acts constituting a violation of the order of preventive suspension and a commission of usurpation of official functions in violation of Section 3(a) of R.A. No. 3019.”
In his motion for reconsideration, Aquino stressed that all the actions he carried out during the briefing for Oplan Exodus and its implementation were perfectly within the bounds of his powers and functions as the President of the Philippines and Chief Executive. Aquino said that “he can directly order any person or any subordinate to do what must be done—including those acting as resource persons to provide vital information and inputs to guide him in fully understanding the nuances of a police operation.” The former President added that “there is nothing irregular, much less illegal, about his act of utilizing all the resources available at his disposal, including sourcing information and inputs from anyone—whether they are in active service or not.” He further added that “his only intent was to utilize the expertise of Purisima and not for Purisima to command or plan anything but just to help him understand what Napeñas and his people were talking about and that he was a passive receiver of information regarding an on-going operation.” Finally, Aquino alleged that he was denied due process as he was not informed of the nature and cause of the accusations against him.
On the other hand, the VACC stated that President Aquino’s negligence is the proximate cause of the deaths of 44 SAF soldiers within the contemplation of the law on reckless imprudence. Complainants added that the first act that set off the chain of events that led to the death of SAF 44 was President Aquino’s reckless imprudence and negligence in at least three instances (1) approving Oplan Exodus which was later found to have serious flaws; (2) allowing suspended Purisima to lead and oversee Oplan Exodus, tactically, strategically and operationally; and (3) failing to send reinforcement and aid to the SAF 44 as they were besieged by superior anti-government forces, until they died.
According to Ombudsman Morales, “in addition to the absence of probable cause, the counsel’s theory that 44 counts of reckless imprudence resulting in homicide lie against respondents is clearly bereft of merit.”
In affirming the charges, the Ombudsman reiterated that “any negligence during the planning, preparation and actual implementation of Oplan Exodus was subsequently broken by the occurrence of an efficient intervening cause,” which was the intentional act of shooting by the hostile forces. The Ombudsman added that “on certain points of law concerning the quasi-offense of reckless imprudence, the careless act is single whether the injurious result affects one person or several persons, and criminal negligence remains one and the same and cannot be split into different crimes and prosecutions.” In other words, in an instance of reckless imprudence resulting in multiple homicide, only one count of Information may be filed against an accused regardless of the number of deaths involved, and only one penalty is imposed, not as many counts as the number of deaths.
Expounding on its legal point, the Ombudsman highlighted that the prescribed penalty for reckless imprudence resulting in multiple homicide as insisted to be filed by VACC is only four months and one day to four years and two months (except in an instance arising from the use of motor vehicle). On the other hand, Usurpation of Official Functions carries the penalty of six months and one day to four years and two months while the graft charge carries a penalty of imprisonment of six years and one month to fifteen years.
“President Aquino has repeatedly admitted and asserted in his counter-affidavit and in the instant motion that he utilized the services of Purisima for Oplan Exodus, albeit he is insisting that it was only for a limited role of a resource person. To this Office, however, the evidence on record regarding the extent of Purisima’s actual participation in Oplan Exodus, shows that he was certainly much more than a mere resource person. That President Aquino utilized the services of the preventively suspended Purisima, prior to and during the implementation, thereby giving Purisima an active role in Oplan Exodus as he was exercising a degree of authority and discretion over Napeñas, is the crux of the finding of probable cause against President Aquino.”
“To this Office, President Aquino’s act of utilizing the services of Purisima for Oplan Exodus set into motion the latter’s participation and involvement therein prior to and during its implementation. In fact, measured against the nature and extent of the short message service (SMS) exchanges alone between Purisima and President Aquino on January 8, 13 and 25, 2015, as quoted in the Resolution, President Aquino’s insistence on Purisima’s role as a mere resource person for Oplan Exodus does not lie vis-à-vis the evidence.”
Ombudsman Morales stated that “clearly the Office found probable cause against President Aquino not simply for having assented to, or at the very least failed to prevent Purisima from committing a violation of Article 177 and Section 3(a) of R.A. No. 3019, but actually for having utilized the services of Purisima for Oplan Exodus while the latter was under preventive suspension, thus, President Aquino’s complicity and influence in the commission of said offenses.”
Citing Supreme Court jurisprudence, “in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile.”
The Ombudsman junked Aquino’s claims that he was denied due process and stated that “the offenses for which probable cause was found against President Aquino actually included in the allegations of the complaints and that Aquino was afforded the opportunity to be heard during the preliminary investigation.’
“Indeed, the totality of Purisima’s acts starting on 19 December 2014 until the execution of Oplan Exodus on 25 January 2015, despite his lame defense that he did said acts in his capacity as a responsible citizen, clearly show that Purisima acted as if he was not under preventive suspension at that time from his position as PNP Chief, as if no OIC PNP Chief was designated,” stated the Order.
As a final note, Ombudsman said that, “while a President of the Republic is certainly possessed with broad discretionary powers, the exercise thereof must not, however, be done in violation of a law or laws, much less when such exercise constitutes a crime. Every public official and office is expected under the law to fully comply with it, without any form of circumvention, run-around, equivocation or pretense. Obedience to the rule of law forms the bedrock of our system of justice. A government of laws, not of men, excludes the exercise of broad discretionary powers by those acting under its authority.”
Under Section 3(a) of R.A. No. 3019, it shall be unlawful for any public officer to persuade, induce, or influence another public officer to perform act constituting a violation of the rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter.
The Informations against Aquino are set to be filed before the Sandiganbayan. ###