MANILA, Philippines (2nd UPDATE) – Ombudsman Conchita Carpio Morales on Thursday, September 14, denied the appeal of former president Benigno “Noynoy” Aquino III and affirmed his graft indictment over the death of 44 elite cops in Mamasapano in 2015.

“While a President of the Republic is certainly possessed with broad discretionary powers, the exercise thereof must not, however, be done in violation of a law or laws, much less when such constitutes a crime,” Morales said in her resolution signed on September 11.

The Ombudsman also sustained the usurpation of authority indictment against Aquino, for allowing the participation of then Philippine National Police (PNP) chief Alan Purisima in Oplan Exodus even though he was suspended at the time.

This means that Morales once again junked the 44 counts of reckless imprudence resulting in homicide sought by the kin of some of the Special Action Forces or SAF 44 – the elite cops who were killed in the operation – against Aquino.

The SAF 44 families’ lawyers from the Volunteers Against Crime and Corruption (VACC) appealed the earlier indictment to include the homicide charges, which would have been equivalent to a 176-year jail time for Aquino.

Morales ordered the filing of carges against Aquino before the anti-graft court Sandiganbayan. His co-accused are Purisima and former SAF chief Getulio Napeñas Jr. (READ: Aquino pins down Napeñas in Mamasapano affidavit)

Purisima and Napeñas were earlier charged with graft and usurpation of authority. Morales’ resolutions accuse Aquino, Purisima, and Napeñas of conspiracy to commit the crime of graft.

Oplan Exodus sought to neutralize terrorists Zulkifli bin Hir or Marwan and Abdul Basit Usman. Missteps, including the lack of coordination with the military, led to the death of 44 elite cops and 23 civilians.(READ: President Aquino and the ghosts of Mamasapano)

‘Bereft of merit’

In denying the SAF 44 kin’s appeal, Morales said there was no new evidence to warrant a reversal of her original resolution on the homicide charges against Aquino. Morales earlier said that Aquino’s negligence cannot be treated as the proximate cause of the deaths of the SAF 44.

Morales said the proximate cause was the “intentional act of shooting by hostile forces that included members of the MILF (Moro Islamic Liberation Front), BIFF (Bangsamoro Islamic Freedom Fighters) and PAGs (Private Armed Groups).”

Morales added that if one count is not merited, all the more that 44 counts should be junked.

“In addition to the absence of probable cause, counsel’s theory that 44 counts of reckless imprudence resulting in homicide lie against respondents is clearly bereft of merit,” the resolution said.

Morales stressed that Aquino’s liability stems from the fact that the former president “assented to, or at the very least failed to prevent” Purisima for committing the crime of graft and usurpation.

In appealing his indictment, Aquino said he only defended himself from the homicide complaint the first time. He was confident that a proper defense against the graft charges would clear him.

But for Morales, there is evidence on record that Aquino allowed Purisima’s active role in the operations. 

“That President Aquino utilized the services of the preventively suspended Purisima for Oplan Exodus, prior to and during its implementation, thereby giving Purisima an active role in Oplan Exodus as he was exercising a degree of authority and discretion over Napeñas, the designation of an OIC PNP Chief notwithstanding, is the crux of the finding of probable cause against President Aquino in relation to his participation in  the violation of graft law,” the resolution said.

Next move

Aquino’s spokesperson, Abi Valte, said Aquino will meet with his legal team following the Ombudmsan’s decision.

“Former President Aquino will meet with his legal team this afternoon to determine his next course of action regarding this case,” Valte said in a statement.

VACC chairman Dante Jimenez said the Ombudsman’s resolution on the Mamasapano case has given his group the additional push to pursue Morales’ impeachment. 

“Talagang halatang-halata na hindi nila isinama ang homicide sa kaso (It’s so obvious that the homicide charge was not included in the case). It’s so unfair, I will ask now the family, they want the Ombudsman to be removed, so we are looking at that option. We will ask the SAFF 44 if they want to join,” JImenez said in a statement sent to reporters.

The VACC had earlier criticized the graft indictment, saying it was “bound to fail” and that the charges are easily defensible.  – Rappler.com