Conchita's Trojan Horse: Weak Mamasapano cases to provide PNoy immunity?

Conchita vs JPE, Bong, and Jinggoy (2014): The Ombudsman then filed graft charges vs former Senators Juan Ponce Enrile, Bong Revilla, and Jinggoy Estrada, over their alleged involvement in Janet Lim-Napoles’ P10-billion Pork barrel (PDAF) Scam [Inq]. They were subsequently detained in the Philippine National Police (PNP) custodial center as the trial progresses.

I will not comment on whether the three senators deserve what they went through, but what’s clear to me is that the Ombudsman clearly turned a blind eye on Liberal Party members and allies who are involved in the PDAF Scam. At the top of this no-hit list is Aquino budget secretary Florencio “Butch” Abad, who gave the imprimatur of the PDAF releases [Inq].

Yes, Carpio-Morales did not include Abad in the charges even if Napoles’ herself testified that it was Abad who taught her how to use non-government organizations to steal money from the National Treasury [Star].
Now that I’ve pretty much shown you how Conchita went against her better judgement in support of the Aquino Administration, let me now focus on how she handled the cases filed against Aquino himself.

Conchita’s first jab at DAP

Carpio-Morales in 2015 dismissed the case arising from the illegal implementation of the multi-billion-peso Disbursement Acceleration Program (DAP) Scam, arguing that Aquino’s alleged technical malversation is not an impeachable offense and that the president enjoys immunity from suit at the time [Star].

Now, let’s recall the kinds of impeachable offenses under the 1987 constitution:

1. Culpable violation of the Constitution, 
2. Treason, 
3. Bribery, 
4. Graft and corruption, 
5. Other high crimes, and
6. Betrayal of public trust.

I am inclined to agree with Carpio-Morales’ verdict that technical malversation does not fall under the first five impeachable offenses, but given the number of counts of technical malversation he’s liable for, I am pretty confident that Carpio-Morales could have easily made the case fall under betrayal of public trust.

As Ambassador Bobi Tiglao pointed out, Aquino committed 1,997 counts of technical malversation through the DAP scam, owing to the 1,997 Special Allotment Release Orders (SAROs) that Aquino himself approved and signed [MT].

A couple of technical malversation cases may not constitute Betrayal of Public Trust, but almost 2,000?

I bet the public, when they elected Aquino, trusted him to be smart enough not to commit 2,000 technical malversations, yet he did.

Aquino betrayed our trust, because we trusted that he’s smart enough to NOT BE THAT STUPID.

Aquino cases post-presidency

The technical malversation case, and its subsequent dismissal, served as a reminder to Aquino critics to hold their horses until Aquino stepped out of Malacañang, and that’s what they did. That’s why Aquino was slapped with case after case after June 30, 2016.
Let us enumerate each of the cases filed since Aquino stepped down last year:

1. TECHNICAL MALVERSATION: Activists also revived the 2015 technical malversation complaint over DAP, arguing that Aquino has lost immunity from suit [Inq].
2. TREASON: The Duterte Administration sued Aquino and Senator Sonny Trillanes for the botched 2013 backdoor negotations with China which allegedly emboldened Beijing to become more aggressive in the South China Sea [Inq].
3. HOMICIDE: Aquino was sued for reckless imprudence resulting in multiple homicide as a result of his alleged negligence in approving the botched 2015 Mamasapano Operation [Inq]. 
4. USURPATION OF AUTHORITY: Aquino was also implicated as having influenced then PNP Director-General Alan Purisima to usurp authority as the latter handle the Mamasapano operation despite being preventively suspended by the Ombudsman at the time [Inq].
5. GRAFT: Former Customs Commissioner Napoleon Morales also filed a graft complaint against Aquino and his Finance secretary Cesar Purisima, for failing to collect P100-billion taxes by allegedly turning a blind eye on Pilipinas Shell Petroleum Corp.’s alleged smuggling of gasoline components, imports which the firm considered nontaxable [Inq].

Now, let’s check what has happened so far.

Conchita on Aquino cases post-Aquino

Before today, there appears to be a trend of dismissal after dismissal of cases filed against Aquino.

ON TECHNICAL MALVERSATION: In March 2017, Carpio-Morales cleared Aquino of Technical Malversation raps over the multi-billion pesos DAP scam, arguing that the issuance of the SAROs “cannot be equated with application of public funds” [ABS].

Now, I do not understand how she can say public funds were not applied when SAROs themselves allow the transfer of funds from the National Treasury to whatever that SARO was for. That’s just like saying you did not help a rapist because all you did was unlock the victim’s bedroom door.

ON TREASON: In June 2017, Carpio-Morales cleared Aquino of treason charges [Inq], arguing that “Treason is a war crime. It is not an all-time offense. It cannot be committed in peacetime [MS].”

Now, I do not understand how “China wants to take away our territory since I can’t remember!” can be considered peacetime. Given how loosely Carpio-Morales interpreted the law during Corona’s impeachment, her strictness in defining wartime is nothing short of discombobulating.

So far, Carpio-Morales has dismissed two out of the five cases against aquino, so to recap, we are left with three:

1. Reckless Imprudence resulting to Homicide vis-a-vis Mamasapano
2. Usurpation of Authority vis-a-vis Mamasapano
3. Graft vis-a-vis Shell’s willfully uncollected taxes

As I’ve mentioned earlier in the article, the Philippines was shocked after it discovered that Carpio-Morales suddenly and uncharacteristically decided to file cases against Aquino. After so many years of protecting him, some doubters finally felt some sliver of hope that maybe, just maybe, this Ombudsman finally “saw the light”.

To cut the long story short, Carpio-Morales dismissed the homicide case, then recommended the filing of usurpation and graft cases against Aquino.

And after examining the Inquirer article, there appears to be something really, really wrong.

Conchita dimisses Homicide

Carpio-Morales dismissed the homicide angle, the angle which my lawyer-friends argued is the easiest prove among all possible cases related to the Mamasapano clash.

Homicide is essentially defined as the unjustified killing of a human being which does not constitute murder, parricide, or infanticide, and this may be committed by negligence [BatasNatin].

Aquino committed homicide on two levels:

FIRST, Aquino authorized the SAF operation despite an existing ceasefire agreement with the Moro Islamic Liberation Front. He allowed the SAF to infiltrate MILF territory, despite the clear knowledge that the MILF will retaliate if engaged.

But the SECOND level is much, much darker: Aquino refused to order the Armed Forces to send reinforcements to the PNP SAF commandos, despite the latter’s request.

SAF Director Getulio Napeñas said they requested for reinforcements in as early as 6:00 AM, January 25th. He said the SAF commandos were still alive by 12 noon of the same day, waiting for reinforcements. No reinforcements came, and they lost contact an hour later.

Aquino and Purisima were monitoring the operations that entire while. During those critical hours, the two had two options:

• Send AFP reinforcements, or
• Order SAF to pull back, to retreat

Aquino and Purisima chose neither. The two willfully allowed 44 SAF commandos to die.

Now, tell me how that cannot be homicide. But no! Carpio-Morales argues that Aquino's allowed to go.

The Other Mamasapano Cases

Now this becomes more interesting, as Carpio-Morales green-lighted the filing of usurpation and graft raps vs Aquino, to the delight of Aquino critics.

But as it turns out, this is a Trojan Horse.

A Trojan Horse is someone or something that is used to hide what is true or real in order to trick or harm an enemy [MW] -- and we are Conchita's enemies, because we want Aquino behind bars.

I will show that what appears to be a positive development from the Common Tao’s point of view is actually something that will turn out to be against the Common Tao’s interests.

At first glance, the filing of this case appears to be the end of Aquino’s impunity under Carpio-Morales. However, this case will actually render him immune from liability over the Mamasapano Debacle.

To illustrate my point, let us discuss the two cases separately, starting with “Usurpation of Authority”.

”[The] circumstances… clearly show that Purisima acted as if he was not under preventive suspension… and as if no OIC PNP chief was designated and acting as such… Purisima would not have been placed in such a position… (despite the) preventive suspension… were it not for the complicity and influence of President Aquino,” Carpio said [Inq].

The key concept that will clear Purisima and Aquino from this charge is “preventive suspension.”

Aquino and “Usurpation of Authority”

The [Revised Penal Code Art. 177] defines “Usurpation of Authority” as:

Usurpation of authority or official functions.— Any person who shall knowingly and falsely represent himself… shall perform any act pertaining to any [government official], without being lawfully entitled to do so, shall suffer the penalty of prision correccional in its minimum and medium periods.

Recall that Purisima was simply on preventive suspension and according to the Revised Rules on Administrative Cases in the Civil Service [CSC]:

Preventive Suspension, nature.–Preventive suspension is not a penalty. It is designed merely as a measure of precaution so that the official or employee charged may be removed from the scene of his/her alleged misfeasance/malfeasance/nonfeasance while the same is being investigated.

An order of preventive suspension may be issued to temporarily remove the respondent from the scene of his/her misfeasance, malfeasance or nonfeasance to preclude the possibility of exerting undue influence or pressure on the witnesses against him/her, or tampering with evidence that may be used against him/her.

In lieu of preventive suspension, for the same purpose, the proper disciplining authority or head of office, may reassign respondent to other unit of the agency during the formal hearings.

In Purisima’s case, the preventive suspension only prevented him from entering PNP premises, but HE STILL REMAINED AS PNP CHIEF. Yes, he was issuing order to Napenas, but he can issue the orders remotely because outside PNP premises, he was still the PNP Chief. Moreover, the Mamasapano had nothing to do with the Werfast case, the cause of his preventive suspension.

In short, Aquino can can argue that Purisima did not pretend to be PNP chief because for all intents and purposes of the Mamasapano clash, he indeed was PNP chief.

So whose authority did Purisima usurp in this case? No one’s.

Hence, if Purisima did not usurp authority, then Aquino could not have conspired with Purisima to usurp authority. After all, conspiracy to usurp authority can only be committed if authority has indeed been usurped.

Moreover, Aquino’s approval of Purisima’s actions during the Mamasapano Clash reinforces this argument. After all, they were exchanging text message throughout the entire operation [EagleNews].

Remember that all executive power emanates from the President, and that includes PNP’s powers. PNP Officer-in-Charge Leonardo Espina was indeed bypassed, but he was bypassed through the authority of the President, the same person where Espina’s authority emanates from.

Did Aquino help usurp Espina’s authority when in fact, Espina’s authority emanates from Aquino?

In short, the usurpation case against Aquino AND Purisima will likely be dismissed.

Aquino and Graft

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 [Inq].

RA 3019 Section 3(a) states [LawPhil]:

Persuading, inducing or influencing 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.

Recalling the explanation in the previous section, Aquino can argue that Purisima did not violate the Ombudsman’s preventive suspension order to begin with, based on two reasons:

1. Purisima was not physically present in any PNP property during the ordeal.
2. Purisima’s orders had nothing to do with the reason for which he was suspended, i.e. Mamasapano and Werfast are unrelated.

Moreover, Aquino can also argue that his permitting to order Purisima is, no matter how fleeting, a temporary removal of PNP OIC Espina, as Aquino, being the Chief Executive, has the authority to do so. By law, Aquino did not need even need to notify Espina about such “temporary removal”.

In short, the graft case against Aquino AND Purisima will likely be dismissed.

Conchita’s Zarzuela

By dismissing the homicide case, Ombudsman Conchita Carpio-Morales basically left the government with two extremely weak and extremely problematic cases to pursue.

This provides Aquino, Purisima, and the Ombudsman, the chance to play a short zarzuela that can easily end in time for the Ombudsman’s July 2018 retirement… and we’re already on Act One.

ACT 1: Ombudsman recommends filing of the two weak cases, which has already happened.

ACT 2: Just for show, Aquino and Purisima can mount a weak appeal at the Office of the Ombudsman, and the latter will deny it.

ACT 3: Ombudsman actually files the case, and Aquino and Purisima are arraigned.

ACT 4: The court, which can act only upon the complaint provided, will see that the preventive suspension was not violated, thereby acquitting both Aquino and Purisima.

ACT 5: After the acquittal, both Aquino and Purisima cannot be sued anymore over the Mamasapano Clash because of the Rule on Double Jeopardy, i.e. or the prohibition on the persecution of a person twice for the same offense.

This case, instead a victory for the Mamasapano widows, will actually provide immunity to Aquino and Purisima... and that’s how this became Conchita's Trojan Horse.

Epilogue

The Ombudsman has already dismissed the first three cases of Technical Malversation, Treason and Homicide. The previous section, on the other hand, shows that the Usurpation raps will eventually be dismissed, along with the bonus of protecting Aquino from any case related to Mamasapano.

Thus, we are left with one last case: Aquino’s willfully neglecting to collect P100-billion for Shell.

I think Aquino will not need help from Conchita on that one.

After all, Shell has P100-billion to win that one, right? [ThinkingPinoy]

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