Efren Morillo, who survived a tokhang operation that killed four of his friends, is still fighting a war – a judicial battle to hold policemen, who almost shot him to death, accountable.

Failing to get the Office of the Ombudsman to approve charges of frustrated murder against the local Quezon City cops who conducted the bloody operation in 2017, Morillo filed on July 8 petitions before the Supreme Court (SC) and Court of Appeals (CA) to exhaust his remedies.

“This case illustrates a clear example of the State’s unwillingness or inability to genuinely conduct an investigation or prosecution for crimes committed in the campaign against illegal drugs. No inquest proceedings were conducted despite the admission of the police respondents to the killings. Now, the Office of the Ombudsman is effectively barring the prosecution of the respondents without valid reasons and upon biased consideration of the evidence,” said the Center for International Law (CenterLaw), Morillo’s lawyers, in a statement.

Morillo survived a tokhang operation in Payatas in 2017 by playing dead and, despite bullet wounds, rolling down a hill and staying alive long enough to find help. His friends Marcelo Daa Jr., Rhaffy Gabo, Anthony Comendo, and Jessie Cule were all killed by local cops under the then-command of Colonel Lito Patay, one of the Davao cops transferred to Metro Manila when Duterte launched an all-out war on drugs.

Morillo was charged by the policemen with direct assault, a common legal trend against drug suspects who are not killed in an operation, but he was acquitted in 2023 by the Quezon City Metropolitan Trial Court Branch 133.

Also last year, the Office of the Ombudsman junked the frustrated murder complaints against police officers Emil Garcia, Allan Formilleza, James Aggarao, and Melchor Navisaga. The Ombudsman also dismissed the complaints for robbery and planting of evidence, along with administrative complaints.

In that resolution, the Ombudsman said that performance of duty is a justifying circumstance to waive criminal liability. Like in many similar situations, cops claimed that Morillo’s group was armed and fought back. “It is unfortunate, however, that the police operation resulted in deaths,” the Ombudsman said in its resolution.

The Ombudsman said that the complainants failed to establish probable cause for the criminal complaints, adding that there’s a lack of substantial evidence for the administrative suits.

These new petitions want the SC to reverse the Ombudsman so they could pursue a criminal trial, and the CA to review possible administrative sanctions against the cops.

“The petitioners firmly believe that the Ombudsman erred in their judgment and thus seek redress from the grave abuse of discretion amounting to lack of jurisdiction,” CenterLaw said.

“The Ombudsman’s decisions were marred by multiple infirmities, including a failure to offer sound justifications for its findings, and blatant oversight of material facts and circumstances by misapplying the concepts of law. The Office of the Ombudsman also failed to accord due respect for the findings of facts and judgments in intimately related previous court cases,” it added. “Altogether, these exhibit grave abuse of discretion.”

Why did Ombudsman junk the complaint?

The Ombudsman, under Duterte appointee Samuel Martires, said the two witnesses did not actually see what happened because they were outside the house when they heard the gunshots. This made Morillo the lone eyewitness. However, the Ombudsman said his statements were “suspect” because he was one of the subjects in the anti-drug operation.

As to the administrative complaints, the Ombudsman said: “As the administrative charge is anchored on the same facts as that of the criminal charge, the Office finds that the complainants failed to prove the respondents’ administrative liability by substantial evidence.”

Morillo’s petition to the Supreme Court calls this Ombudsman resolution “a brazen and blatant error [that] is tantamount to grave abuse of discretion amounting to lack or excess of jurisdiction.”

There is an ongoing International Criminal Court (ICC) investigation into the killings in Duterte’s campaign against drugs. Under ICC rules, the Court can step back if it finds that the Philippines is able and willing to investigate the killings using its own local system. But ICC rules also follow a “same person-same conduct” test, requiring that the Philippines must investigate the very same things the Court is investigating to merit stepping back.

Why this matters

Morillo’s filing of petition is important because it opens the possibility of putting another set of cops on trial, since there have been very few trials and convictions in the estimated 30,000 killings – 7,000 of which happened during police operations.

Trial of these cops could establish a link to Duterte because their station commander back then was Patay, one of the so-called “Davao boys” or policemen plucked from the former president’s home region to implement tokhang in Metro Manila, which became a center of drug-related killings.

Patay is among the subjects of an ongoing House inquiry, seen by many as a pressure point for Duterte in the breakup of the Uniteam alliance. Patay, whose stations recorded the most kills at the start of the drug war, was recently appointed chief of police in Davao City, Duterte’s hometown, but quickly replaced after only four hours.

That Morillo is pursuing this case up to the Supreme Court is significant in the whole battle for accountability in the drug war because the latest conviction of cops, only the fourth overall, was the last best bet of Rise Up, a group helping relatives of drug war victims.

The fourth and latest policemen to be convicted of homicide were Police Master Sergeant Virgilio Cervantes and police corporals Arnel de Guzman, Johnston Alacre, and Artemio Saguros, for killing father and son Luis and Gabriel Bonifacio in 2016. Mary Ann Domingo, either wife or mother of the victims, currently has an appeal pending with the SC seeking to upgrade the case to murder. – Rappler.com