Aquino faces raps for usurpation of authority over Mamasapano mess

Former Pres. Benigno “Noynoy” Aquino III. FILE PHOTO

(Updated, 6:34 p.m.) The Office of the Ombudsman has indicted former president Benigno Aquino III for usurpation of authority and graft over his alleged hand in the botched 2015 Mamasapano operation that cost the lives of 44 Special Action Force (SAF) cops.

In a statement Friday, Ombudsman Conchita Carpio-Morales has ordered the filing of criminal charges against Aquino for his liability in the Mamasapano massacre.

In her resolution resolution a copy of which was obtained by Inquirer, Ombudsman Morales ordered the filing of charges against Aquino for Usurpation of Authority (Article 177 of the Revised Penal Code) and violation of Section 3(a) of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019).

Aquino may still file a motion for reconsideration on the Ombudsman’s indictment against him for usurpation of authority and graft.

The Ombudsman found probable cause to file charges against Aquino “in conspiracy” with dismissed Philippine National Police (PNP) Director General Alan Purisima and sacked Director Getulio Napeñas of the Special Action Force (SAF).

“Wherefore, the Office of the Ombudsman finds probable cause against Benigno Simeon C. Aquino III … in conspiracy with Alan Purisima and Getulio Napeñas. Let the appropriate informations be filed with the proper court,” Morales ruled.

The Ombudsman, however, dismissed the reckless imprudence resulting in multiple homicide and physical injuries filed against Aquino, Purisima and Napeñas. The charges were filed against them by relatives of the SAF troopers who were killed in the botched “Oplan Exodus” operation.

Ombudsman Morales said she is dismissing the reckless imprudence resulting in multiple homicide and physical injuries filed against Aquino for his alleged hand in the slay of the 44 Special Action Force (SAF) police officers, who were killed in a firefight during the anti-terror raid.

READ: Ombudsman clears Aquino of homicide raps over Mamasapano tragedy

In its investigation, Morales said Aquino was aware that Purisima was preventively suspended pending his graft indictment over the anomalous Werfast gun courier service deal, but he still allowed Purisima to participate in the planning of the anti-terror raid dubbed as Oplan Exodus in Mamasapano, Maguindanao that took down international terrorist Marwan.

BACKSTORY: Ombudsman vows not to sit on Aquino probe over Mamasapano

Aquino also exchanged text messages with Purisima about the planned anti-terror raid, the Ombudsman said.

READ: Aquino knew of Mamasapano mission; Purisima called the shots – SAF chief

“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 [for the anomalous Werfest deal],” Morales 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 record 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,” she added.

Aquino also exchanged text messages with Purisima about the planned anti-terror raid, the Ombudsman said in citing the findings of the Senate inquiry on the incident that found Aquino “ultimately responsible” over the botched incident.

READ: Senate draft report: Aquino ‘ultimately responsible’ for Mamasapano mission 

Morales said “certainly a public officer who is under preventive suspension is barred from performing any public functions and from meddling into the affairs of the government.”

The Ombudsman said the findings of the Senate report, which detailed Aquino’s dealings via text messages with Purisima who was updating the former president in the course of the operation, “are instructive as to the actual manner and extent of participation of Purisima in Oplan Exodus during the time he was under preventive suspension, vis-a-vis the conduct and demeanor of President Aquino towards Purisima at the time.”

The Ombudsman also noted Napeñas’ attachments in his counteraffidavits, which detailed the exchange of text messages between Purisima and Napeñas before and on the day of the oplan’s implementation on January 25, 2015.

The Ombudsman said the exchange of messages between Purisima and Aquino, where they talked about updates on the operation, “does not jibe” with Aquino’s defense that Purisima was merely invited as a “resource person providing vital information” for the operation.

“President Aquino’s blanket justification in utilizing Purisima for Oplan Exodus that ‘as the Chief Executive, I can directly order any person — subordinate to be exact — to do what must be done’ is misplaced,” Morales said.

The Ombudsman noted that the record of exchanges between Purisima and Aquino, which was cited in Napeñas counter-affidavit copies of which were provided to his co-accused, “has not been repudiated by either President Aquino or Purisima.”

The Ombudsman noted too the exchange of messages between Napeñas and Purisima, where they talked about the withdrawal and rescue of trapped SAF troops at the height of the gun battle, was not disclaimed by Purisima, as well.

Morales said “certainly a public officer who is under preventive suspension is barred from performing any public functions and from meddling into the affairs of the government.”

“All the foregoing circumstances however clearly show that Purisima acted as if he was not under preventive suspension at the time from his position as PNP chief, and as if no OIC PNP chief was designated and acting as such,” Morales said, referring to the PNP officer in charge deputy director general Leonardo Espina who was apparently bypassed by Purisima and Napeñas in the chain of command.

Morales said it is because of Aquino’s influence and permission that Purisima was able to participate in the planning of Oplan Exodus despite the latter’s preventive suspension.

“In other words, Purisima would not have been placed in such a position of continuing to conduct himself, in relation to Oplan Exodus, in a manner  as if he was not under preventive suspension at that time, from his position as PNP chief, were it not for the complicity and influence of President Aquino,” she said.

READ: What went before: SMS between Aquino, Purisima

Aquino was also ordered charged for graft or violation of Section 3(a) of Republic Act 3019 for violating the Ombudsman’s preventive suspension “with the complicity and influence of President Aquino,” the Ombudsman said.

President Benigno S. Aquino III offers a moment of silent prayer before the remains of the fallen Philippine National Police-Special Action Force (PNP-SAF) Troopers during the Necrological Service at the NCRPO Multi-Purpose Center of Camp Bagong Diwa in Bicutan, Taguig City on Friday (January 30, 2015). (Photo by Marcelino Pascua / Malacañang Photo Bureau / PCOO)

Under Section 3(a) of the Anti-Graft and Corrupt Practices Act, it shall be unlawful for any public officer to persuade, induce or influence another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

Meanwhile, under Article 177 of the Revised Penal Code, Usurpation of Authority is committed by any person who shall knowingly and falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government, or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government, or any agency thereof, without being lawfully entitled to do so.

The Ombudsman ordered the filing of charges against Aquino even as it earlier dismissed the graft and technical malversation complaint filed against Aquino over the Disbursement Acceleration Program (DAP).

In the DAP case, only Aquino’s budget secretary Butch Abad was indicted for usurpation of legislative powers for issuing the National Budget Circular 541, which “expanded the meaning of savings under the GAA” which was “beyond his authority since this is a power reserved to Congress.”

While Aquino was indicted, Napeñas and Purisima were formally charged before the Sandiganbayan with usurpation of powers and graft for bypassing the police chain of command in the botched operation.