‘Usurpation raps vs Purisima, Napeñas should stay’

MANILA, Philippines — Sandiganbayan Presiding Justice Amparo Cabotaje-Tang believes that former Philippine National Police chief Alan Purisima and former PNP Special Action Force (SAF) director Getulio Napeñas Jr. should still be tried for usurpation, in connection with the killing of 44 police commandos during a clash with Muslim rebels in Mamasapano, Maguindanao in 2015.

Tang found an ally in Associate Justice Bayani Jacinto, who said that not only the usurpation case but the graft case as well should have been sustained by the court against Purisima and Napeñas.

“The records of these cases show that accused Purisima performed positive acts pertaining to the chief of the PNP. Specifically, he participated in the mission planning and supervision of the execution by the SAF of Oplan Exodus, a law enforcement operation conducted by the said unit on Jan. 24 to 26, 2015 in Mamasapano, Maguindanao,” Tang said in her 23-page dissenting opinion.

“At that time, however, accused Purisima was stripped of the power to lawfully perform the said acts because he was under preventive suspension by the Office of the Ombudsman,” Tang added.

Tang said that while there is no proof that Purisima misrepresented himself as chief PNP, his “overt acts of actually discharging and performing the powers and functions of the office are more than enough to establish probable cause of the commission of the crime of usurpation of official functions.”

Tang said Napeñas should be tried for the same offense for allegedly acting in conspiracy with Purisima by performing orders or directives from the latter despite fully knowing that Purisima was under suspension.

In a 3-2 vote, the Sandiganbayan Fourth Division on Tuesday ruled to dismiss Purisima’s and Napeñas’ cases of violation of Section 3 (a) Republic Act 3019 or the Anti-Graft and Corrupt Practices and usurpation of official functions under Article 177 of the Revised Penal Code.

The majority cited the “lack of probable cause” and the “insufficiency of the allegations” in the case information also referred to as the charge sheet.

Voting in favor of the cases’ dismissal were Fourth Division chairman Associate Justice Alex Quiroz and Associate Justices Reynaldo Cruz and Michael Frederick Musngi. Tang and Jacinto dissented.

The Fourth Division’s ruling came just days before the country commemorates the fifth anniversary of the massacre tomorrow.

The Fourth Division, in August last year, dismissed similar cases filed against former president Benigno Aquino III after Ombudsman Samuel Martires moved for the withdrawal of the charges, citing “insufficient ground and evidence.”

All the cases stemmed from Aquino’s alleged act of allowing then suspended PNP chief Purisima to participate in the planning and implementation of Oplan Exodus, a police operation aimed to neutralize Malaysian terrorist Zulkifli bin Hir alias Marwan and Filipino bomb maker Abdul Basit Usman.

Marwan was killed but the operation resulted in the death of over 60 people, including 44 members of the SAF.

In both rulings, the Fourth Division stressed that the dismissal of the cases against Aquino, Purisima and Napeñas is “without prejudice to the filing of the appropriate charges.”

The kin of the 44 slain SAF commandos and the Volunteers Against Crime and Corruption (VACC) have been pushing for charges of reckless imprudence resulting in multiple homicide against Aquino, Purisima and Napeñas.

In her opinion paper, Tang agreed with the majority that there is no reason to charge Purisima and Napeñas with graft as there is no showing that the former gave the latter any remuneration in consideration of the latter’s act of violating the PNP chain of command in light of the ombudsman’s suspension order against Purisima. 

Purisima was suspended at the time in connection with a graft case over an alleged anomalous courier service deal for gun licenses with a private company.

“In these cases, the records are bereft of any evidence to show that the purported persuasion, inducement or influence exerted by accused Purisima on accused Napeñas was made by virtue of any consideration or remuneration; hence, there is no probable cause to indict them for violation of Section 3 (a) of RA No. 3019,” Tang said.

Jacinto opined otherwise, stressing that allegation or evidence of remuneration or monetary consideration is not an element of violation of Section 3 (a) of RA 3019.

“The very act of inviting another public officer to perform illegal acts satisfies the intendment of the law. On the part of accused Napeñas, he allowed himself to be induced or influenced by accused Purisima to provide mission updates and to essentially direct the subject operation despite lack of authority to do so,” Jacinto said.

Both magistrates, however, agree that Purisima’s and Napeñas’ usurpation case should have been sustained by the court for a full-blown trial.