After Aquino, Sandiganbayan clears Purisima and Napeñas in Mamasapano case

MANILA, Philippines – The Mamasapano bloodbath case is over. For now.

A special division of the anti-graft court Sandiganbayan on Tuesday, January 21, promulgated an 18-page decision clearing former police chief Alan Purisima and former Special Action Force (SAF) chief Getulio Napeñas in the graft and usurpation of official functions charges against them over the 2015 Mamasapano bloodbath.

"The charges against (Napeñas) are ordered dismissed for lack of probable cause, without prejudice to the filing of appropriate charges," the court said in the decision penned by Associate Justice Alex Quiroz with concurrences from Associate Justices Reynaldo Cruz and Michael Frederick Musngi.

Associate Justice Bayani Jacinto dissented. Presiding Justice Amparo Cabotaje Tang concurred and dissented. We have yet to see copies of Jacinto and Tang's separate opinions.

"The charges against (Purisima) are dismissed without prejudice to the filing of the appropriate charges against him," the court added.

For Purisima and Napeñas, the Sandiganbayan 4th Division ruled on merits, unlike in the case of former president Benigno "Noynoy" Aquino III where the court granted Ombudsman Samuel Martires' request to withdraw.

Martires withdrew the charges filed during the time of former ombudsman Conchita Carpio Morales because the former believed a president cannot ever be charged of usurping official functions.

First, what were the charges? Purisima and Napeñas were charged of violating Section 3(a) of the anti-graft law which punishes "persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations."

They were charged because Purisima was already suspended from the Philippine National Police (PNP) when he led Oplan Exodus – a bungled operation to kill terrorists Zulkifli bin Hir or Marwan and Abdul Basit Usman, but which resulted in the deaths of 44 SAF commandos.

Morales' theory was that Purisima's lead role in the operation despite his suspension amounted to graft. Napeñas and Aquino were accused of conspiracy so they were charged too.

All 3 of them were also charged of usurpation of official functions because of the same thing – that Purisima usurped an official function even though he was suspended.

What's the ruling? The Fourth Division said there was no crime of graft because Purisima and Napeñas did not receive "any consideration."

"The Court rules that there can be no violation of Section 3(a) of R.A No. 3019 if it is not alleged and established that there is a receipt of or at least an expectation to receive any consideration in the use of influence," said the decision.

Section 3(a) makes no mention of receiving something in return for the illegal act. It only says: "Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense."

But the court said it was in keeping up with the spirit of the law and not the letter of it.

For the usurpation of official functions charges, the court also cleared Purisima and Napeñas because of the element of "pretense of official function."

Article 177 of the Revised Penal Code defines usurpation of official function as "any person who shall knowingly and falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government or of any foreign government, or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or any foreign government, or any agency thereof, without being lawfully entitled to do so." (Emphasis ours)

The court said there was no pretense of official position because it was Aquino who assigned Purisima to the operation.

"The orders to accused Purisima relative to the purported mission planning and supervision directly came from Aquino, who cannot be accused of and be found liable for usurpation of official functions," the court said.

The court added: "It cannot be said that accused Purisima was under the pretense of being a PNP Chief precisely because he was ordered by his President and Commander-in-Chief to perform such supervision and monitoring."

What happens now? It has always been the Volunteers Against Crime and Corruption or VACC's position that the graft and usurpation charges were weak and designed to fail.

The group refiled in November 44 counts of reckless imprudence resulting in homicide against Aquino.

Their theory is that Aquino et al's neglect was the proximate cause of the deaths of the 44 SAF commandos.

Proximate cause is defined in past Supreme Court cases as a kind of negligence that produces an event "without which the event would not have occurred."

Morales dismissed this theory during her time.

Ombudsman Samuel Martires would have to decide on the refiled case.

But the Supreme Court in September issued a resolution saying "there is no probable cause to charge private respondents with reckless imprudence resulting in multiple homicide."

Despite the clear language of the ruling that "there is no probable cause" to charge Aquino, Chief Justice Diosdaro Peralta claimed in an earlier press conference that the issue of probable cause should be resolved by the lower court.

"We do not want to encroach on the very power of the lower court to determine the existence of probable cause. What we only rule upon is the Rule 65 to determine there is grave abuse of discretion that's what we said in our ruling," said Peralta. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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