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Benigno "Noynoy" Aquino and Mamasapano tragedy

On Friday, former Philippine president, Benigno Simeon “Noynoy” Cojuangco Aquino III (photo, right) – accompanied by an entourage comprising Liberal Party heavyweights and three of his sisters – went to the Sandiganbayan appellate court at Diliman, Quezon City in Metro Manila and handed over PHP40,000.

It was more media circus; friendly cameras were there, a press conference was convened and Aquino spoke to the nation for nearly two hours. He wanted the people to know that he’s innocent of the graft and usurpation-of-authority charges for which he’d just posted bail.

At first glance, it might seem odd that those charges are being brought against him by Ombudsman, Conchita Carpio Morales, whom Aquino appointed to that post and who, at his request, administered his presidential oath of office. It might also seem odd that the cases have been assigned to the Sandiganbayan Third division, chaired by Presiding Justice, Amparo Cabotaje-Tang, who owes her position on the bench to Aquino. He appointed Ms Tang in 2013.

However, the Ombudsman has found fit to press the charges; Tan, meanwhile, has gone out of her way to assure the public that Aquino won’t receive any preferential treatment. So what exactly is going on? How come two ‘Aquino babes’ want him in court?

To answer that, we need to look at what these two cases are about. They relate to what’s been described as the highest death toll in history experienced by a government elite force during a single action.

They relate to Bloody Sunday – 25 January, 2015 – when 44 members of the Special Action Force (SAF), a unit of the Philippine National Police (PNP) were left to be cut down by terrorist gunmen at Tukanalipao, a barangay of Mamasapano, a town of around 25,000 inhabitants in Maguindanao province on the southern island of Mindanao.

The SAF had been deployed there to capture or kill a Malaysian terrorist – Zulkifli bin Hir (alias “Marwan”), for whom the American Federal Bureau of Investigation was offering a US$5 million bounty. They accomplished that mission, killing Marawan, but then found themselves completely surrounded by hostile forces of the Bangsamoro Islamic Freedom Fighters – the group that had been shielding Marwan – and elements of the Moro Islamic Liberation Front.

What happened next is the crux of this entire tragedy. Just after dawn, the troops found themselves pinned down. Their commander, Getulio Napeñas, called for assistance to rescue them. Aquino, the commander-in-chief of the Philippines’ disciplined forces – though, oddly, following a backlash from the massacre he claimed that as far as the police were concerned he was their “chief executive” – failed to react.

And the reason for that apparently – by his own admission – is that he was in bed asleep with his phone off. “It is normal for anyone to turn off their phone when they go to sleep … any normal person would do [that] to get a good rest”.

Leaving aside the fact that as the president of  the country he was not “any normal person” – leaving aside too that there was a high-risk police operation going on which he’d sanctioned and should have stayed in close contact with – the result was that 73 SAF troopers had gone into the area and only 29 came out alive.

There’s never been a satisfactory explanation for precisely what went wrong at Tukanalipao as regards the execution of the mission, codenamed Oplan Exodus; but what has always been clear is that efforts to save the SAF officers was negligent, dilatory and hopelessly inept.

It’s not clear whether Aquino dithered, panicked, froze or closed down; but it’s clear that if decisive action had been taken in the morning of that day – instead of at the end of it – many lives could have been saved.

The opaqueness of those hours send up haunting echoes of a tragedy that occurred 1,200 miles north of Manila, nine months earlier. This was the sinking of a passenger ferry en route from Inchon to Jeju Island, South Korea, in which 304 people – mostly young students from the same high school – perished. For seven long hours – starting as the ferry, the MV Sewol, was sinking – the country’s then-president, Park Geun-hye, went completely missing.

Back to the Philippines and the present, the families of the Mamasapano victims want Aquino prosecuted for “reckless imprudence resulting in the deaths” – a charge which, if proved, could result in a long prison term. But Ombudsman Morales pre-empted that on 14 July when she cleared Aquino, Napeñas and disgraced former police chief and Aquino pal, Alan Purisima, of that charge which had been placed before her on behalf of the families by the Volunteers Against Crime and Corruption (VACC).

Doubt and anger, however, still persist and many believe that’s why Morales feels comfortable in invoking the far lesser charge of usurpation of authority against the president. This hinges on Aquino allowing PNP Director-General, Purisima – then under preventive suspension for alleged involvement in a PHP100 million scam between the PNP and a private courier company – to play any role in Oplan Exodus.

In her final resolution here’s what Morales said: “In sum, no probable cause lies against [the three] 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”.

So, if we take all that at face value, it would seem that no one in the Aquino government was responsible for those SAF-troop deaths. They were simply victims of war. In fact, Morales, has said as much. Virtually clearing Aquino of all responsibility she attributed the deaths, directly, to the “intentional act of shooting by the hostile forces”. In no way, she said, was Aquino’s alleged negligence the “direct, immediate and proximate cause” of them.

Meanwhile, the VACC has a petition lodged with the Supreme Court. Morales’s ruling, however, won’t help that – neither will the fact that the chief justice, Maria Lourdes Sereno, who’ll be reviewing that petition, is another Aquino loyalist and another of his appointees.

Our question for this weekend’s Your Forum is this: Should Ombudsman Morales and Presiding Justice, Cabotaje-Tang, be involved in prosecuting a case where the defendant – a former president – is a friend and a close political associate? Tang has dismissed any possibility of her inhibiting herself. She said this: “having been appointed by the accused is not one of the legal grounds for inhibition”. Why not? It certainly should be. Otherwise, what’s to stop presidents taking out an insurance policy by stacking the bench with friendly judges?

Furthermore, also considering the case will be another Aquino appointee, Associate Justice Sarah Jane Fernandez. He installed her to the Sandiganbayan in May 2015.

Can all that – even remotely – come under the heading of justice “undoubtedly and manifestly” being see to be done? This has been an abiding principal of jurisprudence since the early 1920s. If it’s ignored in this high-profile case, what does that say about rule of law in the Philippines? What signal does that send to the rest of the world?

Irrespective of their proffered determination to seek justice, without fear of favour, these two women cannot. They’re compromised; they’re open to charges of conflict of interest. They can be – and are – seen as protectors of Aquino. The right thing to have done under these circumstances – and they know it – was to have stepped aside; to recuse themselves. The fact that they haven’t says a great deal about their personal ethical standards. But it also speaks volumes for the country’s standards of justice.

Philippine justice is already a ridiculous joke. Does it need to be parodied any further into the gutter by blatantly demonstrating that favouritism – or the possibility of it – is how verdicts are arrived at there? Can political clout be used to exonerate criminal conduct – or be seen to?

Aquino’s arraignment and his pre-trial are scheduled for 12 January next year. If that goes ahead under the present arrangements – and if, as many suspect the fix is in to insulate him – what looks likely is that the graft charge, brought under the Anti-Graft and Corrupt Practices Act and which carries a maximum penalty of 15 years in prison, will fail; while for the lesser charge, usurpation of authority, he’ll be found accountable to some small degree and get off with a fine or a mild reprimand.

There again, Ms Tang and her associate justices might simply decide there’s no probable cause and dismiss the cases.

Certainly, the Philippines has a major problem when it comes to pursuing the politically powerful. There have been exceptions, but by and large it’s something the political establishment doesn’t have much of a stomach for. They certainly don’t like putting them in prison. Possibly, that’s one reason why corruption across government – not least at the head of its commissions, departments and agencies – has been so successful. Perpetrators can factor that leniency into the risk/reward ratio of their scams.

But until justice is meted out to such figures in the same way as it is to ordinary citizens, society can never prosper. It will always be a banana republic where judges can be bought or cajoled – and that can certainly be inferred here.

The trappings of the court and the professorial babblings of its officials are not important if they fail to serve the cause of justice. And in establishing that service, the Ombudsman, the Chief Justice and all sitting justices must show themselves to be beyond reproach. Anything less is a judicial travesty.

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