HERE’S a question sent to the Times that legal experts and scholars should ponder and answer: If President Aquino already enjoys immunity from suit for his official acts during his incumbency, why should he also enjoy the privilege of being exonerated by the Ombudsman, whom he appointed to office?
We have a situation here that appears to be the opposite of “double jeopardy.” If a person cannot be tried twice on the same charge, should a high official like the president enjoy this double privilege of being immune and being exonerated? In a monarchy, that might be permissible. But in a constitutional democracy like ours, it is an extravagance.
This is the conundrum that the Office of the Ombudsman has created when it announced in a press conference last Wednesday that it has exonerated President Aquino of any criminal offense for his part in the planning of the police mission in the tragic Mamasapano incident in January this year. It curiously stopped exonerating him also for his alleged failure to order a rescue and relief operation that might have saved lives and stopped the bloodbath.
Besides exonerating the president, the Ombudsman also ordered government prosecutors to probe the administrative and criminal liability of dismissed Philippine National Police chief Alan Purisima, former SAF chief Getulio Napenas, and 10 other police officials in the Mamasapano incident.
These actions do nothing to answer the demand of the SAF widows and the public for closure and justice in the tragedy. It only leads to further dismay and grief.
For one, the Ombudsman’s order is only a call for a preliminary investigation to determine probable cause. It is not a decision for the filing of appropriate charges against public officials or police officers that may be deemed responsible for any shortcoming with respect to the tragedy.
Secondly, the public will be troubled by the impact of the Ombudsman’s order on the determination of President Aquino’s accountability, responsibility or liability for the tragedy. If the Ombudsman thinks its decision will close the book on all questions and doubts, she should think again because it will not.
Narrowing the focus mainly on Purisima and Napenas does not extricate the President. It only produces scapegoats. No official probe has cleared the President of the same. More than six months after the massacre, the nation still craves to know the details of (1) the President’s involvement in the SAF operation; and (2) the President’s inexplicable failure to order a rescue and relief operation that might have save some of those who died that fateful day. Plus the inescapable conclusion to be derived from the testimonies of army officers on the ground that he coounselled against the “Papasok na kami, Sir!” words they told him.
The Ombudsman should not lend herself and her office to Malacañang’s persistent effort to cover up the President’s involvement and produce scapegoats to take the blame and change the narrative.
We recall to her and her deputies the explicit provisions of the Constitution which states in Sec. 5, Article XI, “There is hereby created the independent office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall deputy, and at least one deputy each for Luzon, Visayas and Mindanao. A separate deputy for the military establishment may likewise be appointed.”
The powers, functions, and duties of the office are explicitly defined in Sec. 13 article XI of the constitution. There is an explicit desire to replicate the duties of the Ombudsman as first developed in Scandinavian countries.
After the Senate inquiry into the Mamasapano incident, Sen. Grace Poe declared in an executive summary of her prospective report that President Aquino is “ultimately responsible” for the incident.
The Ombudsman’s decision to exonerate the president does not square with this finding of the Senate committee.
Likewise, as some legislators have observed, the Ombudsman has no business investigating and determining whether there are grounds for impeaching the president. This is for the House to determine.
The Ombudsman’s overt concern for the welfare of President Aquino is uncalled for, given his immunity from suit. The Ombudsman should be more concerned about the reputation of her office, and about the need for her and her deputies to maintain a high bar of independence from the appointing power.
If charges are finally filed against Purisima, Napenas and all the others, and the cases go to trial, the fireworks that will ensue could change everything.
This is to say, that Mamasapano remains an open wound. Until it is closed and healed, there will be no exoneration for anyone, and no evasion of responsibility.