REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

First Division

FELICITAS D. NACINO, HELEN

E. RAMACULA, and the
VOLUNTEERS AGAINST CRIME
AND CORRUPTION, INC.
Petitioners,

- versus -
G.R. No. 234789-91
Petition for Certiorari with
Prayer for Temporary
Restraining Order
and Preliminary Injunction

THE OFFICE OF THE

OMBUDSMAN represented by
Ombudsman CONCHITA
CARPIO-MORALES, BENIGNO
SIMEON C. AQUINO III, ALAN
LM PURISIMA, and GETULIO
NAPEÑAS,
Respondents.
x- - - - - - - - - - - - - - - - - - - - x

MANIFESTATION
in lieu of Comment
(to the Petition dated 02 November 2017)

The People of the Philippines, through the Office of the

Solicitor General (OSG), who in this case acts as the
People’s Tribune,1 in compliance with this Honorable Court’s
Resolution2 dated 13 December 2017, most respectfully
states:

1
Gonzales vs. Chavez, G.R. No. 97351, February 4, 1992.
2
Received by the OSG on January 16, 2018.
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PREFATORY STATEMENT

Exactly three years today, January 25, 2018, the

Filipino nation remembers the heroism, valor and gallantry
of the forty-four (44) commandos of the PNP Special Action
Force (SAF), also called the “SAF 44”, who made the
supreme sacrifice of their precious lives, under the flag of
the Republic of the Philippines and in the name of the
elusive peace in Mindanao, in the pursuit of the “Oplan
Exodus”, which mission was to arrest international terrorists
Marwan and Basit Usman.

Yet, even as three years have passed, no one has ever

been held accountable and the circumstances surrounding
the Mamasapano (Mis)encounter have not been shed light.
The SAF 44 are fallen but will never be forgotten. The
tragedy of their deaths should not also spell the death of
justice. Indeed, there can be no greater and more fitting
tribute for them but the holy grail of truth on what exactly
happened and who are responsible for it. Here comes the
tribune of the people to the succor of this Honorable Court in
order to claim justice that the SAF 44 rightfully deserve.

While the mandate of the OSG is to represent the

Government and its officers in this Honorable Court, the
Court of Appeals and all other Courts or tribunals in all civil
actions and special proceedings in which the Government or
any officer thereof in his official capacity is a party,3 it is also
incumbent upon it to present to the Court the position that
will legally uphold the best interests of the Government
although it may run counter to a client's position, the
Ombudsman in this case. In light of the ruling in Rubio vs.
Sto. Tomas4 which states:

…it is also incumbent upon it [OSG] to present to

the Court the position that will legally uphold the
best interests of the Government although it may
run counter to a client's position. Faced with that
situation, however, it behooved the OSG to have
informed the Commission of its stand, to have

3
Section 35[1], Chapter 12, EO 292 otherwise known as “The Administrative Code of 1987.”
4
G.R. No. 83067, 183 SCRA 571 [March 22, 1990].

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returned all supporting documents it may have

received to that office, and to have refrained from
representing petitioner as against the said
Commission.

the Office of the Ombudsman was informed5 that the OSG

will not represent it and that OSG will act as People’s
Tribune in this case. Hence, this Manifestation.

STATEMENT OF THE FACTS

AND OF THE CASE

1. At around midnight of 24 June 2015, elements of

the Philippine National Police-Special Action Force (PNP-SAF)
arrived at Barangay Tukanalipao, Municipality of
Mamasapano, to carry out a police law enforcement
operation denominated “Oplan: Exodus”. The mission was to
apprehend two (2) “high value targets”: international
terrorists Zulkifli Bin Hir, a.k.a. “Marwan” and Ahmad Akmad
Batabol Usman a.k.a. “Basit Usman.” The Senate Committee
Report6 aptly described in detail the Mamasapano Incident:

“The targets of “Oplan: Exodus” were 2

internationally-wanted terrorists, both of whom
carried substantial rewards for their capture. The
primary target of the operation was Marwan.
Marwan, a US-trained engineer. He headed
Kumpulan Mujahidin Malaysia and was a Member of
the Jemaah Islkamiyah’s central command. He was
wanted on the Philippines and the United Stated in
connection with various crimes such as:

-Criminal case for Multiple Murder and Multiple

Frustrated murder (Crim. Case 552-2007)
-P7, 400,000 reward under JO NR 11-
2009;
-$5,000,000 reward for Justice Program
under the US State Department;

-US Warrant Cr 076-00501-02 JF.

5
Letter dated 18 January 2018 and received by the Office of the Ombudsman on even date.
6
Hereinafter referred to as “Senate Report” dated 27 January 2016; Public Hearing on the Mamasapano
Incident, Committee on Public Order and Dangerous Drugs, Joint with the Committees on Peace,
Unification and Reconciliation, and Committee on Finance.

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“Marwan also trained Islamic militants in bomb

making. Marwan is said to have masterminded the
2002 Bali bombing in Indonesia which killed 202 and
injured 209 people. Marwan was also wanted by the
Malaysian government for the killing of a Christian
member of their parliament in 2000, in an attack
backed by Osama Bin Laden’s infamous terrorist
organization, Al Queda. He personally carried out
attacks using explosive detonated through remote
control using cellular phones. Marwan had strong
with the ASG, in fact, he even married the widow of
ASG leader Khadaffy Janjalani.

Intelligence reports indicate that Marwan had

been hiding in Mindanao since 2003, under the
protection of ASG, the BIFF and MILF. Marwan’s
terrorist activities in the Philippines alone resulted to
the death of 46 innocent civilians and injury to 207
others.

The secondary target of “Oplan: Exodus” was

Usman. Like Marwan, Usman is also a bomb maker
and bomb-making trainor. He is a leading trainor. He
is a leading commander of BIFF. There are multiple
standing warrants of arrests against him murder and
frustrated murder, including the 21 April 2002
General Santos City bombing that killed 15 people
and injured 55 others in Mindanao from 2002 to
2008. Usman is also wanted in connection with the
following:

-Criminal Case for Multiple Murder and Multiple

Frustrated Murder (Crim. Case 515-2006); and

-Wanted by US Federal Government.”7

While the PNP-SAF elements were withdrawing from

the theater of operations, however, they were
“engaged by hostile forces belonging to the MILF
XXX”. The 55th SAC “was trapped and heavily
engaged by LIF fighters xxx from around 5:20 a.m.
until around 1:30 pm to 2pm 35 out of the 36
members of the 55th SAC were killed.”8

2. In this unfortunate incident, forty-four (44)

members of the PNP-SAF (“SAF 44”) were killed in the line
of duty, as follows:

7
Senate Report, pp. 22-24.
8
Ibid.

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No. Name of SAF Trooper

1 Sr. Insp. Ryan Ballesteros Pabalinas
2 Sr. Insp. John Garry Alcantara Erana
3 Sr. Insp. Max Jim Ramirez Tria
4 Sr. Insp. Cyrus Paleyan Anniban
5 Sr. Insp. Gednat Tabdi
6 Insp. Joey Sacristan Gamutan
7 Insp. Rennie Tayrus
8 SPO1 Lover Inocencio
9 PO3 Rodrigo Acob Jr.
10 PO3 Virgel Villanueva
11 PO3 Andres Viernes Duque Jr.
12 PO3 Vitoriano Nacion Acain
13 PO3 Noel Ongangey Golocan
14 PO3 Junrel Narvas Kibete
15 PO3 Jed-In Abubukar Asjali
16 PO3 Robert Dommolog Allaga
17 PO3 John Lloyd Rebammonte Sumbilla
18 PO2 Amman Misuari Esmulla
19 PO2 Peterson Carap
20 PO2 Roger Cordero
21 PO2 Nicky DC Nacino Jr.
22 PO2 Glenn Berecio Badua
23 PO2 Chum Goc- Ong Agabon
24 PO2 Richelle Salangan Baluga
25 PO2 Noel Nebrida Balaca
26 PO2 Joel Bimidang Dulnuan
27 PO2 GOdofredo Basak Cabanlet
28 PO2 Franklin Cadap Danao
29 PO2 Walner Faustino Danao
30 PO2 Jerry Dailay Kayob
31 PO2 Noble Sungay Kiangan
32 PO2 Ephraim Mejia
33 PO2 Omar Agacer Nacionales
34 PO2 Rodel Eva Ramacula
35 PO2 Romeo Valles Senin II
36 PO1 Russel Bawaan Bilog
37 PO1 Angel Kodiamat
38 PO1 Windell Llano Candano
39 PO1 Loreto Guyab Capinding
40 PO1 Gringo Charag Cayang-o

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41 PO1 Romeo Cumanoy Cempron

42 PO1 Mark Lory Orloque Clemencio
43 PO1 Joseph Gumatay Sagonoy
44 PO1 Oliebeth Ligutan Viernes

3. On 1 July 2016, Erlinda D. Allaga, et.al., along

with Petitioner Volunteers Against Crime and Corruption
(VACC), filed a Complaint-Affidavit docketed as OMB-C-C-
16-0419 charging the private respondents of the offense of
Reckless Imprudence resulting in Multiple Homicide for the
deaths of the SAF 44 before the Office of the Ombudsman.

4. Thereafter, on 14 July 2016 and 12 August 2016,

two (2) additional Complaint-Affidavits were filed against
herein private respondents by Petitioner Celestino A.
Kiangan, Julie F. Danao and Felicitas Ranon docketed as
OMB-C-C16-0435; and Telly R. Sumbilla, Petitioner Helen E.
Ramacula and Lorana G. Sagoboy docketed as OMB-C-C-16-
0448.

5. On 14 July 2017, public respondent Office of the

Ombudsman issued Consolidated Resolution dated 13 June
2017 for OMB-C-C-16-0419, OMB-C-C16-0435 and OMB-C-
C-16-0448. The dispositive portion of the Consolidated
Resolution is set forth hereunder thus:

“WHEREFORE, the Office of the Ombudsman

FINDS probable cause against BENIGNO SIMEON C.
AQUINO III for violation of Article 177 of the Revised
Penal Code and Section 3 (a) of R.A. No. 3019, in
conspiracy with ALAN L. PURISIMA and GETULIO
NAPEÑAS. Let the appropriate Information be filed
with the proper court.

The complaint for Reckless Imprudence

resulting in Multiple Homicide is DISMISSED for lack
of probable cause.”

SO ORDERED.”

6. On 19 July 2017, Petitioners filed a Consolidated

Motion for Reconsideration of the 13 June 2017
Consolidated Resolution of the public respondent Office of
the Ombudsman praying that “the Resolution of 13 June

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2017 be REEXAMINED and RECONSIDERED with respect to

the finding of probable cause for violation of the Anti-Graft
and Corrupt Practices Act and Usurpation of Authority only
Against Respondents, and that instead, private respondents
be charged with Forty-Four (44) counts of Reckless
Imprudence Resulting in Homicide AND Usurpation of
Authority, as the case may be.”

7. Thereafter, on 11 September 2017, public

respondent Office of the Ombudsman issued a Consolidated
Order dated 5 September 2017, the dispositive portion of
which stated as follows:

“WHEREFORE, the Motion for Partial

Reconsideration of respondent Benigno Simeon C.
Aquino III and Consolidated Motion for
Reconsideration dated July 19, 2017 of some of the
complainants are DENIED. The Consolidated
Resolution dated June 13, 2017 STANDS. Let the
appropriate Information be filed with the proper
court.

SO ORDERED.”

8. On 02 November 2017, Petitioners Felicitas D.

Nacino, Helen E. Ramacula, and the Volunteers Against
Crime and Corruption, Inc. filed before this Honorable Court
a Petition for Certiorari with Prayer for Temporary
Restraining Order and Preliminary Injunction. The OSG
received a copy of the Petition on 20 November 2017.

9. On 13 December 2017, this Honorable Court

issued a Resolution requiring the Respondents to comment
on the Petition within a non-extendible period of ten (10)
days from notice. The OSG received the Notice on 16
January 2018, hence, the period within which to file
Comment expires on 26 January 2018.

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ISSUE

WHETHER THE OMBUDSMAN COMMITTED

GRAVE ABUSE OF DISCRETION IN FINDING
NO PROBABLE CAUSE TO CHARGE FORMER
PRESIDENT BENIGNO S. AQUINO III,
FORMER POLICE DIRECTOR-GENERAL ALAN
LM PURISIMA AND GENERAL GETULIO
NAPEÑAS OF RECKLESS IMPRUDENCE
RESULTING IN MULTIPLE HOMICIDE

ARGUMENT

PROBABLE CAUSE EXISTS FOR THE CRIME OF

RECKLESS IMPRUDENCE RESULTING IN
MULTIPLE HOMICIDE AGAINST FORMER
PRESIDENT BENIGNO S. AQUINO III,
FORMER POLICE DIRECTOR-GENERAL ALAN
LM PURISIMA AND GENERAL GETULIO
NAPEÑAS.

DISCUSSION

The Ombudsman clearly

acted with grave abuse of
discretion in finding that
no probable cause exists to
indict respondents Aquino
III, Purisma and Napeñas
for the crime of Reckless
Imprudence Resulting in
Multiple Homicide.

10. As a general rule, this Honorable Court “will not

ordinarily interfere with the Ombudsman’s exercise of his
investigatory and prosecutory powers without good and
compelling reasons to indicate otherwise.”9 This is a
recognition of the "initiative and independence inherent in
the said Office" which, "beholden to no one, acts as the

9
Angeles v. Gutierrez, 685 Phil. 183, 193 (2012), citing Esquivel v. Ombudsman, 437 Phil. 702 (2002).

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champion of the people and the preserver of the integrity of

the public service."10

11. This Honorable Court has likewise emphasized

that the Ombudsman has been given a “wide latitude of
investigatory and prosecutory powers” and this discretion is
“all but free from legislative, executive or judicial
intervention to ensure that the Office is insulated from any
outside pressure and improper influence.”11

12. Nevertheless, while the Ombudsman’s findings as

to whether probable cause exists are generally not interfered
with by the Supreme Court, this Honorable Court has held
that:

The Court reiterates, "[t]he

determination of grave abuse of discretion
as the exception to the general rule of non-
interference in the Ombudsman’s exercise
of [his] powers is precisely the province of
the extraordinary writ of certiorari.12

13. In Casing vs. Ombudsman Velasco,13 this

Honorable Court reiterated the extraordinary reach of the
remedy of Certiorari, viz:

…[W]here there is an allegation of grave

abuse of discretion, the Ombudsman’s act
cannot escape judicial scrutiny under the
Court’s own constitutional power and duty "to
determine whether or not there has been
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of the Government.”

Undoubtedly, while the Ombudsman has

been given such “wide latitude” in its
prosecutor powers, it still is within arm’s length
of the Supreme Court’s extraordinary power to
determine where there has been “grave abuse
of discretion amounting to lack or excess of

10
Florencio Morales vs. Ombudsman Conchita Carpio-Morales, G.R. No. 208086, July 27, 2016.
11
PCGG vs. Desierto, G.R. No. 139675, July 21, 2006, 496 SCRA 112.
12
Supra, Florencio Morales vs. Ombudsman Conchita Carpio-Morales.
13
G.R. No. 192334, June 13, 2012.

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jurisdiction on the part of any branch or

instrumentality of the Government.”14

14. In the above cited case of Casing, this Honorable

Court defined “grave abuse of discretion” as a ground for
lack of or excess of jurisdiction under Rule 65, in the
following manner, viz:

Grave abuse of discretion implies a

capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction. The
Ombudsman’s exercise of power must have
been done in an arbitrary or despotic manner -
which must be so patent and gross as to
amount to an evasion of a positive duty or a
virtual refusal to perform the duty enjoined or
to act at all in contemplation of law – in order
to exceptionally warrant judicial intervention.15

15. Thus, the Supreme Court is not precluded from

reviewing the Ombudsman’s action when there is grave
abuse of discretion, in which case the certiorari jurisdiction
of the Court may be exceptionally invoked pursuant to
Section 1, Article VIII of the Constitution.16

16. As expounded in the case of Oscar Ampil vs.

Ombudsman:17

… The Ombudsman’s finding to proceed

or desist in the prosecution of a criminal case
can only be assailed through certiorari
proceedings before this Court on the ground
that such determination is tainted with grave
abuse of discretion which contemplates an
abuse so grave and so patent equivalent to
lack or excess of jurisdiction.

However, on several occasions, we have

interfered with the Ombudsman’s discretion in
determining probable cause:

(a) To afford protection to the constitutional

rights of the accused;

14
Article VIII, Section 1, 1987 Philippine Constitution.
15
Ibid.
16
Verino Vergara vs. Ombudsman, G.R. No. 174567, March 12, 2009.
17
G.R. No. 192685, July 31, 2013.

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(b) When necessary for the orderly

administration of justice or to avoid
oppression or multiplicity of actions;

(c) When there is a prejudicial question which

is sub judice;

(d) When the acts of the officer are without or

in excess of authority;

(e) Where the prosecution is under an invalid

law, ordinance or regulation;

(f) When double jeopardy is clearly apparent;

(g) Where the court has no jurisdiction over

the offense;

(h) Where it is a case of persecution rather

than prosecution;

(i) Where the charges are manifestly false and

motivated by the lust for vengeance.
(Emphasis supplied).

17. It is respectfully submitted that the fourth

circumstance is present in the case at bar. Further, it will be
argued below that the Ombudsman acted in an arbitrary and
despotic manner in finding that no probable cause exists to
indict the private respondents with the crime of Reckless
Imprudence Resulting in Homicide.

18. In criminal cases, there are two kinds of

determination of probable cause: executive and judicial. This
distinction was explained by the Court in People v. Castillo
and Mejia18:

There are two kinds of determination of

probable cause: executive and judicial. The
executive determination of probable cause is
one made during preliminary investigation. It
is a function that properly pertains to the
public prosecutor who is given a broad
discretion to determine whether probable
cause exists and to charge those whom he
believes to have committed the crime as

18
607 Phil. 754 (2009).

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defined by law and thus should be held for

trial. Otherwise stated, such official has the
quasi-judicial authority to determine whether
or not a criminal case must be filed in court.
Whether or not that function has been
correctly discharged by the public prosecutor,
i.e., whether or not he has made a correct
ascertainment of the existence of probable
cause in a case, is a matter that the trial court
itself does not and may not be compelled to
pass upon.

The judicial determination of probable

cause, on the other hand, is one made by the
judge to ascertain whether a warrant of arrest
should be issued against the accused. The
judge must satisfy himself that based on the
evidence submitted, there is necessity for
placing the accused under custody in order not
to frustrate the ends of justice. If the judge
finds no probable cause, the judge cannot be
forced to issue the arrest warrant.

19. The executive determination of probable cause is

conducted by the prosecutor for the determination of
whether a criminal information will be filed. On the other
hand, judicial determination of probable cause is one made
by the judge to ascertain whether a warrant of arrest should
be issued against the accused.

20. In this case, the petition concerns itself with the

executive determination of probable cause which is within
the function of the Office of the Ombudsman. On the
determination of the existence of Probable Cause in the
prosecution of cases by the Ombudsman, the Supreme Court
elucidated:

Probable cause “does not mean ‘actual

and positive cause’” or “x x x import absolute
certainty. It is merely based on opinion and
reasonable belief.” It “has been defined x x
x as the existence of such facts and
circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person
charged was guilty of the crime for which he
was prosecuted.” “Thus, a finding of probable

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cause does not require an inquiry into whether

there is sufficient evidence to procure a
conviction. It is enough that it is believed that
the act or omission complained of constitutes
the offense charged. Precisely, there is a trial
for the reception of evidence of the prosecution
in support of the charge.”

The wide latitude in determining the

existence of probable cause or the lack of it
cannot be exercised arbitrarily. The
Ombudsman must weigh “facts and
circumstances without resorting to the
calibrations of our technical rules of evidence x
x x. Rather, he relies on the calculus of
common sense of which all reasonable men
have an abundance.” “A finding of probable
cause needs only to rest on evidence showing
that more likely than not a crime has been
committed and was committed by the
suspects. Probable cause need not be based
on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond
reasonable doubt and, definitely not on
evidence establishing absolute certainty of
guilt.” A finding of probable cause “is not a
pronouncement of guilt.”

21. Thus, at this stage of the proceedings, probable

cause need not be based on clear and convincing evidence
of guilt, neither on evidence establishing guilt beyond
reasonable doubt and, definitely not on evidence
establishing absolute certainty of guilt. All that is needed for
the Ombudsman’s finding of probable cause rests on the
finding that more likely than not a crime has been
committed and the same was committed by the suspects.

22. In the complaint filed by the petitioners against

the private respondents for reckless imprudence resulting in
homicide punishable under Article 365 of the Revised Penal
Code, the Office of the Ombudsman ruled that the alleged
negligent acts of Purisima are not the proximate cause of
the death of SAF members, thus:

The Office finds that the proximate cause of the

death of the 44 SAF members, as well as the wounding of

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15 SAF troopers, was the intentional act of shooting by

hostile forces that include members of the MILF, BIFF, and
PAGs’. Such act by the hostile forces constituted an
efficient intervening cause in the purported negligence of
respondents during the planning, preparation, and actual
implementation of Oplan Exodus. In other words, such act
by the hostile forces was the proximate legal cause that
produced the death and injury of the SAF members.19

23. It is respectfully submitted that the Honorable

Ombudsman is not correct.

24. Respondents’ liability is grounded on the faulty

planning and execution of Oplan Exodus. This is regardless of
the presence of the hostile forces in the battle ground. What
defines their error, therefore, is their inexcusable lack of
precaution.

25. It must be stressed that the determination of

probable cause does not require certainty of guilt for a crime.
As the term itself implies, probable cause is concerned
merely with probability and not absolute or even moral
certainty; it is merely based on opinion and reasonable
belief. It is sufficient that based on the preliminary
investigation conducted, it is believed that the act or
omission complained of constitutes the offense charged.20

26. By arbitrarily dismissing the Information, the

Ombudsman, in effect, made a final finding that no crime of
Reckless Imprudence Resulting in Homicide was committed.

There is probable cause to

indict respondents Aquino
III, Purisima and Napeñas
for the crime of reckless
imprudence resulting in
multiple homicide for the
deaths of SAF 44.

27. The elements of reckless imprudence are: (1) that

the offender does or fails to do an act; (2) that the doing or
the failure to do that act is voluntary; (3) that it be without
19
Consolidated Resolution, June 13, 2017, p. 16.
20
Ampil vs. Ombudsman, G.R. No. 192685, July 31, 2013.

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malice; (4) that material damage results from the reckless

imprudence; and (5) that there is inexcusable lack of
precaution on the part of the offender, taking into
consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances
regarding persons, time and place.21

28. Among the elements constitutive of reckless

imprudence, what perhaps is most central to a finding of
guilt is the conclusive determination that the accused has
exhibited, by his voluntary act without malice, an
inexcusable lack of precaution. It is that which supplies the
criminal intent so indispensable as to bring an act of mere
negligence and imprudence under the operation of the penal
law. This is because a conscious indifference to the
consequences of the conduct is all that is required from the
standpoint of the frame of mind of the accused. Quasi-
offenses penalize the mental attitude or condition behind the
act, the dangerous recklessness, the lack of care or
foresight, the "imprudencia punible," unlike willful offenses
which punish the intentional criminal act.22

29. At bar, the acts of negligence of the private

respondents clearly show that probable cause exists to indict
them for reckless imprudence resulting in multiple homicide
and that there is grave abuse of discretion on the part of the
public respondent Office of the Ombudsman, specifically the
manifest error and palpable mistake in its whimsical and
despotic exercise of its prosecutory power by dismissing the
charge of reckless imprudence against the private
respondents, despite the presence of glaring facts and
evidence as exhaustively discussed below.

CULPABILITY OF BENIGNO S. AQUINO III

30. During the January 9, 2015 meeting among

respondents Aquino, Napeñas and Purisima, Oplan Exodus
was discussed in detail. Based on this plan: (1) a total of
392 PNP-SAF would be deployed; (2) the Seaborne was to
exit via its entry point; and (3) coordination with other

21
Ynzon vs. People of the Philippines, G.R. No. 165805, July 30, 2014.
22
Ynzon vs. People of the Philippines, G.R. No. 165805, July 30, 2014, citations omitted.

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government forces is made “time on target”. Aquino gave

his approval thereto, and so Oplan Exodus proceeded as
planned.

31. The Senate and the PNP-BOI, in their respective

reports, found that: (1) the PNP-SAF deployed was
insufficient as there were than 1000 hostile troops at or near
the target area;23 (2) the use of the same routes to infiltrate
and to leave the area of operations violated standard
operating procedures;24 and (3) Oplan Exodus violated the
requirements of lateral coordination mandated under the
Joint Implementing Rules and Regulations to Executive
Order No. 546, s. 2006 “Directing the PNP to Undertake
Active Support to the AFP in ISO for the Suppression of
Insurgency and Other Threats to National Security.”25

32. However, as found by the Senate, “the most fatal

mistake made by the mission planners of Oplan Exodus was
their decision against prior coordination with the AFP, and
that the bare coordination with the AFP units in the area was
“time on target.”

33. This is supported by Aquino’s admission. During

the Question and Answer portion of the Prayer Gathering
with religious leaders on March 9, 2015, Aquino declared,
“Pero ang bottom line ho, kung alam ko na ganito ang
gagawin [ni Napeñas] from the start, eh hinindian ko ho
itong misyon na ‘to.”26

34. As the PNP is under the DILG, the President, as

the Chief Executive, exercises supervision and control over
it. Thus, given that the President gave the policy direction to
arrest Marwan and Usman, and that he approved Oplan
Exodus with full knowledge of its operational details, the
Chief Executive is ultimately responsible for the success or
failure of the mission.27

23
Senate Report, p. 50.
24
Senate Report, p. 50.
25
Senate Report, p. 54.
26
Senate Report, p. 32.
27
Senate Report, p. 93.

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35. In view of respondent Aquino’s full knowledge of

the details of Oplan Exodus and his subsequent approval
thereof, he acted with inexcusable negligence, which was
the direct proximate cause in the massacre of SAF 44.
Hence, respondent Aquino is liable for forty-four (44) counts
of reckless imprudence resulting in multiple homicide as
penalized under Article 365 of the Revised Penal Code.

36. It is well-settled that determination of probable

cause is an executive function. Such executive determination
of probable cause ascertains whether a criminal case must
be filed in court.28 It is a function that properly pertains to
the public prosecutor, in this case is the Ombudsman, who is
given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have
committed the crime as defined by law and should be held
for trial.29

37. Indeed, mere belief that private respondents

probably committed the crime suffices to establish probable
cause. Whether they are guilty of Reckless Imprudence or
not is a different matter, which can properly be determined
at a full-blown trial on the merits of this case.

38. The act of public respondent Ombudsman in this

case of dismissing the case for reckless imprudence,
however, is a wanton disregard of the sufficiency of evidence
to form a belief that a crime for Reckless Imprudence has
been committed. The Ombudsman should not have decided
whether there is evidence beyond reasonable doubt of the
guilt of the person charged.

39. In the recent case of People vs. Borje, Jr. G.R.

No. 170046, December 10, 2014, this Court succinctly
outlined the nature of determination of probable cause, viz:

The Office of the Ombudsman, in this case,

found probable cause which would warrant the
filing of an information against respondents. For
purposes of filing a criminal information, probable
cause has been defined as such facts as are

28
People of the Philippines v. Court of Appeals, G.R. No. 161083, August 3, 2010.
29
People of the Philippines v. Castillo, 607 Phil. 754, 764 (2009).

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sufficient to engender a well-founded belief that a

crime has been committed and that respondents
are probably guilty thereof. It is such set of facts
and circumstances which would lead a reasonably
discreet and prudent man to believe that the
offense charged in the Information, or any offense
included therein, has been committed by the
person sought to be arrested. A finding of
probable cause needs only to rest on evidence
showing that more likely than not a crime has
been committed and was committed by the
suspect. It need not be based on clear and
convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt, and
definitely not on evidence establishing absolute
certainty of guilt. Thus, unless it is shown that the
Ombudsman’s finding of probable cause was done
in a capricious and whimsical exercise of
judgment evidencing a clear case of grave abuse
of discretion amounting to lack or excess of
jurisdiction, this Court will not interfere with the
same. (Underling supplied and citations omitted)

40. Prescinding, courts can interfere with the finding

of the probable cause by the Ombudsman if there is grave
abuse of discretion. In the instant case, the act of filing an
Information for Usurpation of Authority against private
respondents and dismissing the charge of Reckless
Imprudence by the Ombudsman can be characterized as
arbitrary, capricious, whimsical, or despotic amounting to a
grave abuse of discretion because the set of facts and
circumstances clearly present probable cause for Reckless
Imprudence.

41. To iterate, respondent Aquino’s criminal

negligence consists in his active participation and direct
involvement in the whole process as he helped plan Oplan
Exodus with gross inexcusable negligence and approved the
operation with full knowledge. In the Senate Report on the
Mamasapano Incident, Purisima and Napeñas admitted such
full participation and approval of respondent Aquino. The
Senate findings were corroborated by the findings of the
PNP-BOI.

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42. In addition, respondent Aquino allowed the

suspended PNP Chief Purisima, not only to participate in the
planning, but also in the running of the operation and even
in giving information and intelligence whilst the operation
was ongoing as he communicated with respondent Aquino
via SMS on Jan. 25, 2015. Hence, it was criminally
imprudent on the part of respondent Aquino to acquire and
leave the intelligence, planning, control and command of the
operation to Purisima as he was suspended at that time and
had no legal authority over the entire PNP.

43. Interestingly, Petitioners correctly enumerated the

acts of respondent Aquino in planning the Oplan Exodus with
gross and inexcusable negligence, and thereafter approved
the operation with full knowledge, to wit:

(i) he was briefed, consulted and informed by

respondents Purisima and Napeñas on
nearly all aspects of “Oplan: Exodus”
especially the Time on Target or TOT
manner of coordination with the Armed
Forces of the Philippines (AFP);
(ii) he issued orders and gave instructions to
respondents Purisima and Napeñas in the
planning, preparation and execution of
“Oplan: Exodus”;
(iii) he did not object or stop respondent
Napeñas from carrying out the Time on
Target coordination with the AFP;
(iv) he allowed respondent Purisima, who
was then under preventive suspension by
the Office of the Ombudsman, not only to
participate in the planning but in the
running of “Oplan: Exodus” and even in the
providing information and intelligence while
the operation was going to the exclusion of
the Officer-in-charge of the Philippine
National Police (OIC PNP) Leonardo Espina
who was the concurrent Deputy CPNP for
operations;
(v) he acquired and left intelligence,
planning, inputs and the control and
command of “Oplan: Exodus” to
respondents Purisima, thereby giving
pseudolegal power to a suspended official;
(vi) he committed an intentional breach of
the established norms inherent in a chain of
command, and;

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(vii) after the SAF members were trapped, he

did not lift a finger to rescue them, and
instead of having foresight and
judiciousness, he chose to stay indifferent,
used the unreliable short messaging system
(SMS) and acquired information from a
single source only to apprise himself of the
situation and as such, he was unable to
monitor the progress of the operations that
the SAF members were in the danger of
being overrun, and likewise, to order the
forces at his disposal to timely give succor
to the besieged troops.30

44. Clearly, from the reasons above-stated, there is

probable cause to indict respondent Aquino for the crime of
criminal negligence resulting in multiple homicide of SAF44.

CULPABILITY OF ALAN LM PURISIMA

45. Here, Purisima’s criminal negligent acts as found

by the Senate Inquiry and PNP Bureau of Inquiry consist of:
1) upon Purisima’s instructions, knowledge of Oplan Exodus
was kept from the Secretary of the Interior and Local
Government Manuel Roxas and the PNP Officer-in-Charge
Leonardo Espina until the morning of January 25, 2015 when
the 84th Seaborne and 55th SAC of the PNP-SAF were already
heavily engaged with hostile forces; 2) Purisima did not
practice his “time on target”, as coordination was done time
after target; and 3) Purisima was remiss in giving
intelligence inputs during the planning and execution of the
operation.

46. The hostile forces cannot be considered as an

active external force which constitutes as an efficient
intervening cause. The resistance of the hostile forces is
foreseeable. In fact, “Oplan Exodus” is not the first attempt
to catch Marwan. Previous operations had been cancelled
because of risks of heavy resistance.

47. The flawed planning and execution, of which

Purisima was an active participant, doomed the operation
from the very beginning, jeopardizing the lives of our police
30
Petition, p. 10.

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force. This was the proximate cause, which, in natural and

continuous sequence, unbroken by any efficient intervening
cause, produced the death of the police officers, and without
which the result would not have occurred.

48. Jurisprudence teaches that reckless imprudence

consists of voluntarily doing or failing to do, without malice,
an act from which material damage results by reason of an
inexcusable lack of precaution on the part of the person
performing or failing to perform such act.31

49. For instance, reckless imprudence was

demonstrated as the Mamasapano Report 32
found that
Purisima gave inaccurate and misleading information:

This lackadaisical stance can also be

gleaned from the statement of suspended
CPNP Purisima to Guerrero in the same text
message at 07:57 a.m.: ‘Baka puede artillery
support sa AFP’.

Such statement does not connote a

sense of urgency as it seemingly gave
Guerrero a choice to either send support
artillery to the battle zone, or not. Prudence
would have required suspended CPNP Purisima
to take quick action and give clear, decisive
instructions. However, the suspended CPNP
failed to do the same. xxx

50. In this case, the elements of reckless imprudence

were established: (1) with Purisima’s act of not conveying
urgency as he sought artillery support from Lieutenant
General Rustico Guerrero; (2) this act of Purisima was
voluntary or of his free will; (3) it was done without malice;
(4) material damage through the death of the SAF 44
resulted from the reckless imprudence; and (5) there is
inexcusable lack of precaution on the part of Purisima, taking
into consideration his position as Chief PNP, though he was
suspended at that time, and the urgency of the situation
faced by the troops.

31
Ynzon vs. People of the Philippines, G.R. No. 165805, July 30, 2014.
32
pp. 49-50.

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51. As stated above, the most central to a finding of

guilt is the conclusive determination that the accused has
exhibited, by his voluntary act without malice, an inexcusable
lack of precaution. To iterate, this inexcusable lack of
precaution by Purisima was clearly exhibited when: 1) upon
Purisima’s instructions, knowledge of Oplan Exodus was kept
from the Secretary of the Interior and Local Government
Manuel Roxas and the PNP Officer-in-Charge Leonardo Espina
until the morning of January 25, 2015 when the 84th
Seaborne and 55th SAC of the PNP-SAF were already heavily
engaged with hostile forces; 2) Purisima did not practice his
“time on target”, as coordination was done time after target;
and 3) Purisima was remiss in giving intelligence inputs
during the planning and execution of the operation.

52. Clearly, Purisima’s negligent acts are the

proximate cause of the death of SAF 44.

CULPABILITY OF GETULIO NAPEÑAS

53. Respondent Napeñas’ inexcusable negligence and

utter lack of precaution and foresight in planning and
executing Oplan Exodus ultimately to the death of the SAF
44.

54. At the outset, Napeñas took direct orders from

Purisima, who by reason of his suspension, cannot act with
authority. Therefore, his orders and directives during Oplan
Exodus did not produce any legal effect. As indicated in the
Senate Report:

The PNP-SAF is a national operational

support unit of the PNP under direct control of
the Chief, PNP. During the period of PDG
Purisima’s preventive suspension, Napenas, as
the Director of the PNP-SAF, could only
legitimately take and follow orders and
directives from PDDG Espina, who was
designated Officer-in-Charge of the PNP by the
President. Certainly, Napenas should not have
followed orders given by the suspended
Purisima.33

33
Senate Report, p. 88

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55. Napeñas’ act of complying with the orders and

directives of the suspended CPNP chief assumed full
responsibility and liability for the effects of carrying out the
said orders.

56. The Senate Report clearly indicates that Napeñas

was responsible for planning Oplan Exodus.34 Respondent
Aquino also affirmed that Napeñas was the officer
responsible for the tactical concept of the operation.

57. First, despite the information given to operatives,

the PNP-SAF’s intelligence preparation of the battle field was
grossly inadequate to wit:

Intelligence in the possession of the PNP

prior to the launch of Oplan Exodus indicated
that there were more than 1,000 hostile troops
at or near the target area where Marwan and
Usman were believed to be hiding. Yet the
PNP-SAF deployed only 392 personnel for the
entire operation where almost a quarter of
them are positioned to guard the MSR that was
so far away from the actual theater of action.
In addition, the PNP-SAF mission
planners were informed of the possibility of a
pintakasi, a practice common among Muslim
armed groups were groups normally opposed
to each other would come together and fight
side by side against a common enemy or
intruding force…
xxx xxx xxx
The SAF leadership obviously failed to
prepare accordingly to address the tradition of
Pintakasi and its consequences. (Emphasis
supplied.)

58. Second, while Napeñas allowed opposing and

critical views from his subordinates, records indicate that he
heavily influenced the discussion and planning of Oplan
Exodus:

34
PNP Board of Inquiry, The Mamasapano Report, March 2015.

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There are indications that Napenas may

not have considered differing opinions raised
by his subordinate commanders. The mission
planning appears to have been done by a
group of officers and not a planning team, with
inputs heavily influenced by Napenas.
Subordinate commanders expressed that
Napenas had unrealistic planning assumptions
such as the swift delivery of artillery fire and
immediate facilitation of ceasefire.35

59. During his interview with the Board of Inquiry

(BOI), it appeared that Napeñas’ appreciation of Oplan
Exodus was that it was a high-risk mission and a “must be
delivered” task.36

60. Third, Napeñas admitted that key variables for

Oplan Exodus such as coordination with 6th Infantry division
of the Philippine Army (6ID-PA) and with the AHJAG/CCCH
were not thoroughly studied and considered in the mission
planning process. Despite the established measures in
coordination, Napeñas adopted the TOT concept, which is a
concept alien to the AFP and runs counter to the AFP’s
established standard operating procedures.37 As aptly
indicated in the Senate Report:

Indeed, the most fatal mistake made by

the mission planners of Oplan Exodus was their
decision against prior coordination with the
AFP, and that the bare coordination with the
AFP units in the area was “time in target”. As
earlier stated, the PNP-SAF’s coordination with
the AFP was not even ‘time on target’. It was
“time AFTER target”, as the PNP-SAF informed
the AFP units in the area about their operation
only after Marwan was killed, and both the
Seaborne and the 55th SAC were already under
heavy fire from hostile forces.

Had there been prior coordination with

the AFP, reinforcing elements could have been
easily placed on stand-by, air assets could
have been pre-positioned and forward observer

35
Mamasapano Report, Executive Summary, pp. i-iii
36
PNP Board of Inquiry, The Mamasapano Report, March 2015, p. 47.
37
PNP Board of Inquiry, The Mamasapano Report, March 2015, p. 56.

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units from the Army could have been

embedded with the PNP-SAF operation units in
case the need for indirect fire support arose.
More lives could have been saved and fewer
lives could have been lost.38

61. The Mamasapano incident showed that, in the

absence or lack of adequate information due to lack of prior
coordination, there is no commonality of thoughts or
levelling-off of expectations among key operational decision
makers at the most crucial time of extraction.39

62. As emphasized by the Supreme Court in the case

of People vs. Delos Santos:40

A man must use common sense, and

exercise due reflection in all his acts; it is his
duty to be cautious, careful, and prudent, if not
from instinct, then through fear of incurring
punishment. He is responsible for such results
as anyone might foresee and for acts which no
one would have performed except through
culpable abandon. Otherwise his own person,
rights and property, and those of his fellow-
beings, would ever be exposed to all manner of
danger and injury.41

63. The test for determining whether a person is

negligent in doing an act whereby injury or damage results
to the person or property of another is this: Could a prudent
man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a
reasonable consequence of the course actually pursued? If
so, the law imposes a duty on the actor to refrain from that
course or to take precautions to guard against its
mischievous results, and the failure to do so constitutes
negligence.42

64. Napeñas as a high-ranking police officer and SAF

commander should have known the risks involved in the
38
Senate Report, p. 56
39
PNP Board of Inquiry, The Mamasapano Report, March 2015, p. 57.
40
G.R. No. 131588, March 27, 2001.
41
Citing the cases of U.S. v. Meleza, 14 Phil. 468, 470 (1909), People v. Pugay, 167 SCRA 439, 448
(1988).
42
Ibid.

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implementation of Oplan Exodus. The haphazard planning

and execution only showed that he was not exercising due
care under the existing circumstances and conditions at the
time.

65. All of the above incidents clearly establish

probable cause that respondent Napeñas acted with
inexcusable negligence in the planning, coordination, and
operation of Oplan Exodus, which was the direct proximate
cause in the bloody demise of the SAF44.

66. The Supreme Court in Mendoza vs. Spouses

Gomez,43 defined proximate cause, to wit:

Proximate cause is defined as that cause,

which, in natural and continuous sequence,
unbroken by any efficient intervening cause,
produces the injury, and without which the
result would not have occurred. And more
comprehensively, the proximate legal cause is
that acting first and producing the injury,
either immediately or by setting other events
in motion, all constituting a natural and
continuous chain of events, each having a
close causal connection with its immediate
predecessor, the final event in the chain
immediately effecting the injury as a natural
and probable result of the cause which first
acted, under such circumstances that the
person responsible for the first event should,
as an ordinary prudent and intelligent person,
have reasonable ground to expect at the
moment of his act or default that an injury to
some person might probably result
therefrom.44

67. In Abrogar vs. Cosmos Bottling Company and

Intergames, Inc.45 this Court shed light on how proximate
cause is determined in this wise:

To be considered the proximate cause of

the injury, the negligence need not be the

43
G. R. No. 160110, June 18, 2014.
44
Citing the case of Dumayag v. People, G.R. No. 172778, November 26, 2012, 686 SCRA 347 citing
Vallacar Transit v. Catubig, G.R. No. 175512, May 30, 2011, 649 SCRA 281, 295-296.
45
G.R. No. 164749, March 15, 2017.

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event closest in time to the injury; a cause is

still proximate, although farther in time in
relation to the injury, if the happening of it set
other foreseeable events into motion resulting
ultimately in the damage.46 According to an
authority on civil law:47 "A prior and remote
cause cannot be made the basis of an action, if
such remote cause did nothing more than
furnish the condition or give rise to the
occasion by which the injury was made
possible, if there intervened between such
prior or remote cause and the injury a distinct,
successive, unrelated and efficient cause, even
though such injury would not have happened
but for such condition or occasion. If no
damage exists in the condition except because
of the independent cause, such condition was
not the proximate cause. And if an
independent negligent act or defective
condition sets into operation the circumstances
which result in injury because of the prior
defective condition, such act or condition is the
proximate cause."

68. The negligent acts on the part of respondent

Napeñas in the planning, coordination, and operation of
Oplan Exodus inevitably set into operation the circumstances
which result in the demise of the SAF44.

69. Thus, respondent Napeñas is liable for forty-

four (44) counts of reckless imprudence resulting in multiple
homicide as penalized under Article 365 of the Revised Penal
Code.

The shooting of the hostile

forces cannot be deemed
as an efficient intervening
event that broke the chain
of events caused by
respondents’ negligence
because the possibility of
such external act was
foreseen and known to him
46
Citing the case of Pullman Palace Car Co. v. Laack, 143 111. 242, 32 N.E. 285, 18 L.R.A. 215.
47
Citing VI Caguioa, E. P., Comments and Cases on Civil Law, 1970 First Edition, Central Book Supply,
Inc., Quezon City, pp. 402-403.

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during the planning of

Oplan Exodus.

70. In the assailed Resolution dated 13 June 2017,

public respondent Office of the Ombudsman finds that no
probable cause exists for reckless imprudence resulting in
Multiple Homicide due to the alleged existence of an
intervening cause that actually produced the death of SAF
44.

71. The OSG respectfully submits that said Resolution

is contrary to law and prevailing jurisprudence.

72. Reckless imprudence consists of voluntarily doing

or failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of
precaution on the part of the person performing or failing to
perform such act. The elements of reckless imprudence are:
(1) that the offender does or fails to do an act; (2) that the
doing or the failure to do that act is voluntary; (3) that it be
without malice; (4) that material damage results from the
reckless imprudence; and (5) that there is inexcusable lack
of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances
regarding persons, time and place.48

73. Negligence is defined as the failure to observe for

the protection of the interests of another person that degree
of care, precaution, and vigilance which the circumstances
justly demand, by reason of which such other person suffers
injury. The test to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant
in the performance of the alleged negligent act use
reasonable care and caution which an ordinary person would
have used in the same situation? If not, then he is guilty of
negligence. The existence of negligence in a given case is
not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what
would be reckless, blameworthy, or negligent in the man of

48
Cabugao vs. People, G.R. No. 163879, July 30, 2014.

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ordinary intelligence and prudence and determines liability

by that norm.49

74. In the present case, respondent Office of the

Ombudsman already established in its Joint Resolution dated
March 10, 2016 that negligence exists in the planning,
preparation and actual implementation of Oplan Exodus. Its
findings, however, confined such negligence only with
Purisima and Napeñas, and worst, further ruled that it was
still short of criminal negligence because according to the
assailed resolution, such negligence is not the proximate
legal cause of the death of SAF 44, but rather the acts of the
hostile forces who shot them.

75. With all due respect, such ruling is without merit,

if not absurd.

76. The shooting of the SAF 44 by the combined

elements of the MILF, BIFF and PAG cannot be considered as
an efficient intervening cause because such event was
known and foreseeable and could have been avoided had
respondent Aquino acted with due diligence in the planning
and execution of Oplan Exodus.

77. One of the tests for determining the existence of

proximate cause is the foreseeability test50, viz.:

x x x – Where the particular harm was

reasonably foreseeable at the time of the
defendant’s misconduct, his act or omission
is the legal cause thereof. Foreseeability is
the fundamental test of the law of
negligence. To be negligent, the defendant
must have acted or failed to act in such a
way that an ordinary reasonable man would
have realized that certain interests of
certain persons were unreasonably
subjected to a general but definite class of
risk which made the actor’s conduct
negligent, it is obviously the consequence
for the actor must be held legally

49
Agusan vs. Balen, G.R. No. 173146, Nov. 25, 2009.
50
Ibid.

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responsible. Otherwise, the legal duty is

entirely defeated. Accordingly, the
generalization may be formulated that all
particular consequences, that is,
consequences which occur in a manner
which was reasonably foreseeable by the
defendant at the time of his misconduct are
legally caused by his breach of duty x x x.

78. Foreseeability is the fundamental test of

negligence. To be negligent, a defendant must have acted or
failed to act in such a way that an ordinary reasonable man
would have realized that certain interests of certain persons
were unreasonably subjected to a general but definite class
of risks.51

79. Thus, applying the afore-cited test, respondent

Aquino should have reasonably foreseen the potential
danger of sending PNP SAF to a high-risk mission based on
an operational plan with badges of failure from the very
start. He was aware of the presence of 3,400 hostile forces
in the area of operation and culture of pintakasi [where
members of the community band together to repel external
threat].

80. In fact, he admitted the need of AFP support and

reinforcement to avoid any casualties in the event of
pintakasi. Thus, the incident that caused the life of 44 SAF
members cannot be considered unforeseen.

81. It is also worthy to note that respondent Aquino

even contributed to the confusion by including suspended
Purisima in the operation without giving a clear picture on
the latter’s authority on the operation. It obviously created
confusion on who will inform the AFP.

82. Private respondent Napeñas alleged that

respondent Purisima told him that he (Purisima) will inform
the AFP52. On the other hand, respondent Aquino alleged
that he ordered Napeñas to inform the AFP. Private
respondent Aquino should have been more cautious in
51
Phil. Hawk vs. Tan Lee, G.R. No. 166869, February 16, 2010.
52
Respondent Napeñas’ Consolidated Counter-Affidavit, p. 11.

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explaining the role of Purisima to Napeñas (and all other

officers involved) to avoid such confusion. As it happens, no
artillery support from the AFP came, which led to the deaths
of SAF 44.

83. Indubitably, the shooting of the hostile forces

cannot be deemed as an efficient intervening event that
broke the chain of events caused by private respondent
Aquino’s negligence considering that such external act is
ought to have been foreseen in the planning of Oplan
Exodus.

84. All told, the proximate cause of the deaths of SAF

44 was the negligent act of private respondent Aquino,
together with that of private respondents Purisima and
Napeñas.

PRAYER FOR THE ISSUANCE

OF A TEMPORARY RESTRAINING ORDER
OR WRIT OF PRELIMINARY INJUNCTION

85. The People of the Philippines re-plead the

foregoing averments which may be necessary and relevant
to the instant prayer for injunctive relief.

GROUNDS IN SUPPORT
OF THE TEMPORARY RESTRAINING ORDER
OR WRIT OF PRELIMINARY INJUNCTION

THE PEOPLE OF THE PHILIPPINES HAS

CLEAR AND UNMISTAKABLE RIGHT TO THE
INJUNCTIVE RELIEF PRAYED FOR. MORE
IMPORTANTLY, THE PEOPLE OF THE
PHILIPPINES CLEARLY ESTABLISHED THE
VIOLATION OF SUCH RIGHT.

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II

THE PEOPLE OF THE PHILIPPINES WILL

SUFFER GRAVE AND IRREPARABLE INJURY IF
ANY INJUNCTIVE RELIEF IS NOT ISSUED.

III

NO OTHER ORDINARY, SPEEDY, AND

ADEQUATE REMEDY EXISTS TO PREVENT THE
INFLICTION OF IRREPARABLE INJURY.

DISCUSSION

86. While the general rule is that the courts will not
issue writs of prohibition or injunction – whether preliminary
or final – in order to enjoin or restrain any criminal
prosecution,53 the Supreme Court in Brocka vs. Enrile54
laid down the exceptions to the general rule, to wit:

"a. To afford adequate protection to the

constitutional rights of the accused (Hernandez vs.
Albano, et al., L-19272, January 25, 1967, 19 SCRA
95);

"b. When necessary for the orderly administration of

justice or to avoid oppression or multiplicity of
actions (Dimayuga, et al. vs. Fernandez, 43 Phil.
304; Hernandez vs. Albano, supra; Fortun vs.
Labang, et al., L-38383, May 27, 1981, 104 SCRA
607);

"c. When there is a pre-judicial question which is sub

judice (De Leon vs. Mabanag, 70 Phil. 202);

"d. When the acts of the officer are without or

in excess of authority (Planas vs. Gil, 67 Phil.
62);

53
Samson v. Guingona, Jr., G.R. No. 123504, December 14, 2000, 348 SCRA 32, 36.
54
G.R. No. 69863-65, December 10, 1990, Emphasis supplied.

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"e. Where the prosecution is under an invalid law,

ordinance or regulation (Young vs. Rafferty, 33 Phil.
556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

"f. When double jeopardy is clearly apparent

(Sangalang vs. People and Avendia, 109 Phil.
1140);
"g. Where the court has no jurisdiction over the
offense (Lopez vs. City Judge, L-25795, October 29,
1966, 18 SCRA 616);

"h. Where it is a case of persecution rather than

prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760,
March 25, 1960);

"i. Where the charges are manifestly false and

motivated by the lust for vengeance (Recto vs.
Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia,
CA-G.R. No. 30720-R, October 8, 1962; Cf,
Guingona, et al vs. City Fiscal, L-60033, April 4,
1984, 128 SCRA 577); and

"j. When there is clearly no prima facie case against

the accused and a motion to quash on that ground
has been denied (Salonga vs. Paño, et al., L-59524,
February 18, 1985, 134 SCRA 438).

"k. Preliminary injunction has been issued by the

Supreme Court to prevent the threatened unlawful
arrest of petitioners (Rodriguez vs. Castelo, L-6374,
August 1, 1958)." (cited in Regalado, Remedial Law
Compendium, p. 188, 1988 Ed.)

87. Clearly, as discussed above, respondent Office of

the Ombudsman, in dismissing the complaint for reckless
imprudence against private respondents, acted without or in
excess of its authority. The Ombudsman exercised its
prosecutory power in an arbitrary and despotic manner in
finding that no probable cause exists to indict the private
respondents with the crime of Reckless Imprudence
Resulting in Homicide despite the facts and evidence that
present a clear case of Reckless Imprudence.

88. Thus, the issuance of a temporary restraining

order or writ of preliminary injunction is in order.

89. A preliminary injunction is an extraordinary event

calculated to preserve or maintain the status quo of things
ante litem and is generally availed of to prevent actual or

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threatened acts, until the merits of the case can be heard.55

As a strong arm of equity, it should be granted only when
the court is fully satisfied that the law permits it and the
emergency demands it.56 The onus probandi is on the
pleader to prove the existence of these requisites.57

90. Thus, the applicant must establish the following

for the issuance of a writ of preliminary mandatory
injunction:

(a) the applicant must have a clear and unmistakable

right, that is a right in esse;
(b) there is a material and substantial invasion of
such right;
(c) there is an urgent need for the writ to prevent
irreparable injury to the applicant; and
(d) no other ordinary, speedy, and adequate remedy
exists to prevent the infliction of irreparable
injury.58

91. A reading of The Committee Report on the

Mamasapano Incident (Senate Report) and the findings of
the Philippine National Police Board of Inquiry (PNP-BOI) will
show that there should have been a finding of probable
cause against respondents Benigno Simeon Aquino III
(Aquino), Getulio Napeñas (Napeñas), and Alan LM Purisima
(Purisima). Perforce, an injunction must issue in order to
stop the Sandiganbayan from conducting further
proceedings against private respondents brought about by
the resolution of the respondent Office of the Ombudsman.

THE PEOPLE OF THE PHILIPPINES HAS

CLEAR AND UNMISTAKABLE RIGHT TO THE
INJUNCTIVE RELIEF PRAYED FOR. MORE
IMPORTANTLY, THE PEOPLE OF THE

55
Herminio Tayag v. Amancia Lacson, et al., G.R. No. 134971, 25 March 2004.
56
China Banking Corporation v. Sps. Harry Ciriaco and Esther Ciriaco, G.R. No. 170038, 11 July 2012.
57
Tanduay Distillers, Inc. v. Ginebra San Miguel, Inc., G.R. No. 164324, 14 August 2009.
58
Marquez v. The Presiding Judge Hon. Ismael B. Sanchez, et al., G.R. No. 141849, 13 February 2007.

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PHILIPPINES CLEARLY ESTABLISHED THE

VIOLATION OF SUCH RIGHT.

92. Section 3, Rule 58 of the Rules of Court states:

“SEC. 3. Grounds for Issuance of

Preliminary Injunction. – A preliminary
injunction may be granted when it is
established:
(a) That the applicant is entitled to the
relief demanded, and the whole or part of such
relief consists in restraining the commission or
continuance of the act or acts complained of or
in requiring the performance of an act or acts,
either for a limited period or perpetually;

(b) That the commission or

continuance or non-performance of the act or
acts complained of during the litigation would
probably work injustice to the applicant; or

(c) That a party, court, agency or a

person is doing, threatening, or is attempting
to do, or is procuring or suffering to be done,
some act or acts probably in violation of the
rights of the applicant respecting the subject of
the action or proceeding, and tending to render
the judgment ineffectual.”

93. Indeed, before an injunction may be issued, the

legal right of the applicant to said relief must not only exist,
but must be clear and unmistakable and that the acts
against which the writ is to be directed are violative of the
said right.59 This is the express pronouncement of the
Supreme Court in Arcega v. Court of Appeals:60

For the issuance of the writ of

preliminary injunction to be proper, it must be
shown that the invasion of the right sought
to be protected is material and substantial,
that the right of complainant is clear and
unmistakable and that there is an urgent
and paramount necessity for the writ to
prevent serious damage.
59
Government Service Insurance System v. Florendo, G.R. No. 48603, 29 September 1989, 178 SCRA76.
60
G.R. No. 122206, 7 July 1997, 275 SCRA 176.

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In the absence of a clear and legal right,

the issuance of the injunctive writ constitutes
grave abuse of discretion [;] injunction is not
designed to protect contingent or future rights.
Where the complainant’s right or title is
doubtful or disputed, injunction is not
proper. The possibility of irreparable
damage, without proof of actual existing
right is no ground for an injunction.”61

94. In other words, the right of the people must be

clear and unmistakable, that is, that the right is actual, clear
and positive especially calling for judicial protection.62

95. In the instant case, based from the above

discussions, it is clear that the people’s right to prosecute
private respondents Aquino, Napeñas, and Purisima for the
crime of reckless imprudence resulting in homicide is
undoubtful or undisputed, hence injunction is proper.63

II

THE PEOPLE OF THE PHILIPPINES WILL

SUFFER GRAVE AND IRREPARABLE INJURY IF
ANY INJUNCTIVE RELIEF IS NOT ISSUED.

96. For a TRO to be issued, there must be an urgent

need for the writ to prevent irreparable injury to the
applicant.

97. In the case of Australian Professional Realty,

Inc. vs. Municipality of Padre Garcia,64 essential to
granting the TRO is the existence of an urgent necessity for
the writ in order to prevent serious damage. A TRO issues
only if the matter is of such extreme urgency that grave

61
Ibid., at p. 180; emphasis and underscoring supplied.
62
Isabel Jael Marquez, et al. vs. The Presiding Judge (Hon. Ismael B. Marquez), RTC Br. 58, Lucena City,
et al., G.R. No. 141849, February 13, 2007.
63
Arcega v. Court of Appeals, G.R. No. 122206, July 7, 1997 citing Vinzons-Chato v. Natividad, 244
SCRA 787 and China Banking Corporation v. Court of Appeals, G.R. No. 121158, December 5, 1996.
64
G. R. No. 183367, March 14, 2012.

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injustice and irreparable injury would arise unless it is issued

immediately.

98. Under Section 5, Rule 58 of the Rules of Court, a

TRO may be issued only if it appears from the facts shown
by affidavits or by the verified application that great or
irreparable injury would be inflicted on the applicant before
the writ of preliminary injunction could be heard.65

99. Damages are irreparable within the meaning of

the rule relative to the issuance of injunction where there is
no standard by which their amount can be measured with
reasonable accuracy. An irreparable injury which a court of
equity will enjoin includes that degree of wrong of a
repeated and continuing kind which produce hurt,
inconvenience, or damage that can be estimated only by
conjecture, and not by any accurate standard of
measurement. An irreparable injury to authorize an
injunction consists of a serious charge of, or is destructive
to, the property it affects, either physically or in the
character in which it has been held and enjoined, or when
the property has some peculiar quality or use, so that its
pecuniary value will not fairly recompense the owner of the
loss thereof.66

100. In the instant case, respondent Ombudsman found

probable cause to indict the private respondents for the
crime of Usurpation of Authority punishable under Article
177 of the Revised Penal Code, with the penalty of prision
correccional in its minimum and medium periods. The
Informations against them have been filed before the
Sandiganbayan and arraignment is scheduled on January 12,
2018 but was re-set to February 15, 2018. Absent any
injunctive relief, the arraignment for those charges will
proceed as scheduled. Thus, the State runs the risk of
waiving its right to prosecute the respondents for the proper
crime.

101. In applying for a TRO, the People respectfully

prays unto this Honorable Court to refrain from further

65
Id.
66
SSS v. Bayona, 5 SCRA 126 (1962).

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proceedings, specifically the holding of Arraignment, on the

ground that when the private respondents enter their plea to
the Information for Usurpation of Authority as filed by the
public respondent Office of the Ombudsman, and this
Honorable Court affirms the finding of probable cause for the
filing of the same, the People would lose its right to
challenge or impugn such finding and would effectively bar
the filing of a case for Reckless Imprudence resulting in
Multiple Homicide which is the correct and proper charge, if
the TRO is not issued.

102. Stated otherwise, if the proceedings will not be

halted by a TRO and arraignment would ensue, the serious
damage that may be suffered by the People and which is
sought to be prevented is the forfeiture of its right to
prosecute the persons responsible in the Mamasapano
Incident by charging the proper offense which is Reckless
Imprudence resulting in Multiple Homicide.

103. However, the act of public respondent

Ombudsman in this case of dismissing the case for reckless
imprudence is a wanton disregard of the sufficiency of
evidence to form a belief that a crime for Reckless
Imprudence has been committed. The Ombudsman should
not have decided whether there is evidence beyond
reasonable doubt of the guilt of the person charged.

104. To sum it up, private respondents would rather

plea for the crime of usurpation of authority and further
assert double jeopardy, allowing these accused to escape
prosecution. This cannot be countenanced. Private
respondents were high level officials when the crime of
criminal negligence was committed. It is at the height of
injustice if these accused will escape prosecution for the
deaths of SAF 44 which could have been reasonably
avoided, were it not for their negligent acts.

105. Injunction is an action in equity appropriate only

when there can be no compensation in damages for the
injury thus sustained and where no adequate remedy in law
exists. Here, the issues are anchored on legal and
unmistakable right of the State to prosecute the respondents

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for the crime of criminal negligence. As such, this Honorable

Court must not decline to wield the strong arm of equity in
this case.

III

No other ordinary, speedy, and adequate

remedy exists to prevent the infliction of
irreparable injury.

106. The last requisite for the issuance of a TRO is that

there must be no other ordinary, speedy, and adequate
remedy that exists to prevent the infliction of irreparable
injury.

107. As it stands, the State has no other ordinary,

speedy and adequate remedy but to seek an injunctive relief
from this Honorable Court. The issuance of an injunctive
relief is of extreme urgency because once the respondents
have made a plea in the present prosecution for usurpation
of authority, the State will run the risk of prosecuting them
for criminal negligence, as they may assert that double
jeopardy has already attached.

108. Indubitably, the State will suffer grave injustice

and irreparable injury. Thus, weighed between the urgency
of the issuance of an injunctive relief for the State’s right to
prosecute viz-a-viz the rights of the accused to a speedy
trial, the State asserts that the proceedings before the public
respondent Ombudsman and Sandiganbayan should be
restrained.

109. When public respondent Ombudsman denied the

Motion for Reconsideration on its Consolidated Order and
subsequently filed the Information of Usurpation of Authority
against private respondents before the Sandiganbayan, the
State deems that it is of urgent and extreme necessity for
this Honorable Court to uphold the sacred duty of the State
to prosecute crimes, hold the responsible individuals for
their acts or omissions, prevent the miscarriage of justice

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and ultimately bring to the bar of justice the senseless killing

of the SAF 44.

110. For the foregoing reasons, it is respectfully prayed

that application for the issuance of a temporary restraining
order and/or writ of preliminary injunction be granted.

PRAYER

WHEREFORE, People of the Philippines, through the

Office of the Solicitor General acting as People’s Tribune,
respectfully pray unto this Honorable Court that:

1) Upon filing of the instant Manifestation, a temporary

restraining order and/or writ of preliminary injunction
be ISSUED preventing the Arraignment on 15 February
2018 before the Sandiganbayan, Fourth Division, of
private respondents Former President Benigno Simeon
Aquino III, former PNP Chief Alan LM Purisima and
General Getulio Napeñas;

2) After giving due course to the Petition, to ANNUL,

REVERSE or SET ASIDE the Consolidated Order dated
5 September 2017 and the Consolidated Resolution
dated 13 June 2017 issued by the Office of the
Ombudsman for OMB-C-C16-0419, OMB-C-C16-0435
and OMB-C-C16-0448, insofar as said Orders dismissed
the complaint for Reckless Imprudence resulting in
Multiple Homicide against Respondents Aquino,
Purisima and Napeñas;

3) To DIRECT the Office of the Ombudsman to file forty -

four counts (44) of Reckless Imprudence resulting in
Homicide against each of the Respondents Aquino,
Purisima and Napeñas.

The People prays for such further or other relief as may

be deemed just or equitable.

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Makati City for Manila, 25 January 2018.

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