OMBUDSMAN Conchita Carpio-Morales has affirmed the finding of probable cause to charge former president Benigno S.C. Aquino III before the Sandiganbayan for the Mamasapano operation of 2015, the Office of the Ombudsman said in a statement on Thursday, Sept. 14.

Mr. Aquino, the statement said, 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).

The “botched 2015 Mamasapano operation,” as the Ombudsman’s statement describes that incident, was a police operation in pursuit of terror suspects that led to the slaughter of 44 members of the Philippine National Police’s (PNP) Special Action Force (SAF) by Muslim-Filipino rebels who had forged a peace deal with Mr. Aquino’s government. The aftermath of that operation led to the biggest crisis in Mr. Aquino’s presidency and stalled a planned autonomous region from his peace deal with the rebels.

In a Consolidated Order approved last Monday, Sept. 11, Ms. Morales denied the separate motions for reconsideration filed by Mr. Aquino and complainant Volunteers Against Crime and Corruption (VACC) and affirmed the findings in a Consolidated Resolution last June 13.

She said “President Aquino’s act of utilizing the services of the preventively suspended (Alan L.M.) 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.”

Mr. Aquino in his motion said all 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. He noted, among other things, 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 (SAF director Getulio P.) Napeñas (Jr.) and his people were talking about and that he was a passive receiver of information regarding an on-going operation.”

Mr. Aquino also claimed he was denied due process as he was not informed of the nature and cause of the accusations against him.

The VACC, on the other hand, claimed reckless imprudence and negligence on Mr. Aquino’s part in at least three instances: approving Oplan Exodus which was later found to have serious flaws; allowing a suspended officer to oversee the operation; and failing to send reinforcement and aid to the SAF 44 as they were besieged by anti-government forces.

The VACC, for its part, said Mr. 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.

Ms. Morales, for her part, said the “theory that 44 counts of reckless imprudence resulting in homicide lie against respondents is clearly bereft of merit.”

The statement said: “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.”

The Ombudsman also “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.”

Ms. Morales noted, contrary to Mr. Aquino’s claim, that “the evidence on record regarding the extent of Purisima’s actual participation…shows that he was certainly much more than a mere resource person.” The Ombudsman also junked Mr. Aquino’s claims that he was denied due process.

President Rodrigo R. Duterte had earlier belittled the Ombudsman’s case against Mr. Aquino as being designed to fail. He has also since criticized Ms. Morales for her “selective justice” in the exercise of her office. Ms. Morales was appointed by Mr. Aquino to her position and also stood as witness in the impeachment trial of Chief Justice Renato C. Corona as pursued by Mr. Aquino.

The Informations against Mr. Aquino are set to be filed before the Sandiganbayan, the Ombudsman’s statement said.

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