His day in court

It was not unexpected. Those who professed surprise either did not know how genuinely independent Ombudsman Conchita Carpio Morales is, or had a different view of the decision-making that led to the Mamasapano raid and the consequent tragedy. The operation that killed the Malaysian terrorist bomb-maker Marwan in January 2015 came at a very high cost: dozens of police officers killed, the lives of innocent civilians lost, the peace agreement with the Moro Islamic Liberation Front disrupted. But it was not just about consequences; it was also about process.

It was this combination that fueled great public outrage over the Mamasapano incident; the news that 44 Special Action Force troopers had been killed in the operation was staggering, but the revelation that the chief of the Philippine National Police at that time, then serving a preventive suspension order, was still actively in command was also stunning.

What are rules like preventive suspension for, if at the highest levels of the government they are not followed, but seen merely as suggestions?

Add the disclosure that the police did not coordinate with the Philippine Army until it was too late, mix with President Benigno Aquino III’s inexplicable decision not to receive the coffins of the slain troopers when these were brought back to Manila, and one understands why the Mamasapano tragedy hurt Aquino politically.

Despite the hue and cry over the destruction wrought by Supertyphoon “Yolanda,” Aquino’s popularity did not take a hit. But the impact of the Mamasapano tragedy on his ratings was real and serious.

Aquino’s failure to show up at Villamor Air Base has no legal consequences, but allowing Director General Alan Purisima, then the PNP chief, to still control the operation despite being suspended does. It is this reasoning that explains two related resolutions the Ombudsman released last week.

She charged the former president on two criminal counts, usurpation of authority and a violation of the antigraft law (for inducement of a government official).

“There is no gainsaying that President Aquino was fully aware that the Office of the Ombudsman had placed Purisima under preventive suspension at that time,” Morales said.

She also said: “The fact remains that, at the time, particularly before and during the actual implementation of Oplan Exodus, Purisima was under preventive suspension, and that Purisima, despite being under preventive suspension, indeed played an active role in Oplan Exodus, as shown by all the records of SMS exchanges and findings in the Senate Committee Report on the Mamasapano incident, to the point that he was exercising a degree of authority and discretion over Napeñas and consequently, over the operation.”

Repeated reference to the significance of the text messages, which offer proof that Purisima was for all intents and purposes still acting as the PNP chief, suggests that this case is no mere trifle, put on merely for show.

Aquino’s lawyers have their work cut out for them, to disprove the plain meaning of the messages. The former president’s basic defense is that as chief executive and commander in chief he can direct any subordinate; Morales says Aquino’s faith in this notion is “misplaced.”

But the Ombudsman also cleared Aquino of homicide charges related to the death of the 44 SAF troopers. She said she found that “no probable cause lies against respondents for reckless imprudence resulting in multiple homicide for the death of 44 SAF members, nor for reckless imprudence resulting in physical injuries for the wounding of 15 SAF troopers” — for the reason that “direct causal connection” must be proven to exist between the negligence that is alleged and the injury that is sustained.

At the minimum, the charge of reckless imprudence “must be the proximate cause of the collision” between allegation and injury. But it was the “act of hostile forces” which was “the efficient intervening cause in the purported negligence.”

Aquino will file a motion for reconsideration, a spokesperson said. Perfectly within his right, but it looks like he is headed for a trial in the courtroom.