Sandigan chief: Purisima, Napeñas should be tried for usurpation in SAF 44 deaths

Former Philippine National Police (PNP) chief Alan Purisima and ex-PNP Special Action Forces (SAF) chief Getulio Napeñas are liable for usurpation of official functions over the deaths of 44 SAF commandos as a result of an anti-terrorist police operation in January 2015, Sandiganbayan Presiding Justice Amparo Cabotaje-Tang said.

Tang made the assertion in her concurring and dissenting opinion on the Sandiganbayan decision clearing Purisima and Napeñas of graft and usurpation charges over Oplan Exodus—the police operation in Mamasapano, Maguindanao aimed at neutralizing terrorists Zulkifli bin Hir alias Marwan and Basit Usman.

The elite commandos were killed when engaged by a combined force of fighters from the Moro Islamic Liberation Front, Bangsamoro Islamic Freedom Fighters and other armed elements in the area, while Marwan was killed by the SAF.

While Tang agreed that the former police officials are not liable for graft for lack of evidence, she argued that they should at least face trial for usurpation of official functions because Purisima supervised the execution of Oplan Exodus even though at the time he had been suspended due to a graft case, and Napeñas still followed his orders.

“There is no question that accused Purisima was the Chief of the PNP at the time material to these cases. However, he was placed by the Office of the Ombudsman under preventive suspension during the pendency of his administrative cases in its Order dated December 3, 2014, but not to exceed a total period of six months. Thus, he was devoid of any power to direct and control the tactical, as well as the strategic movements, deployment, placement, utilization of the PNP or any of its units and personnel, including the SAF, from that time until his preventive suspension shall have been effectively lifted,” Tang said.

Tang said that Purisima performed various functions of a PNP Chief for Oplan Exodus even though he was suspended, including the following actions:

• gave the intelligence packet to Napeñas;
• tasked the PNP-SAF to conceptualize the Marwan project;
• directed Napeñas to give a briefing to President Benigno Aquino III regarding Oplan Exodus;
• met with President Aquino on January 9, 2015 at Bahay Pangarap to discuss mission updates for Oplan Exodus;
• constantly received pre­-operational updates from Napeñas;
• approved the final date of the operation;
• communicated with the President prior to and on January 25, 2015; monitored the events;
• relayed crucial information to Napenas during that fateful day;
• sought updates from Napeñas on the ground situation; and
• relayed those actions to President Aquino.

“All these actions were taken despite knowing fully well that he was under preventive suspension. In short, Purisima was sending the unwritten yet visible message that he was, albeit he was not authorized to act and function, as Chief PNP.

“Not even Purisima's claim that he was acting as a mere facilitator upon the imprimatur of the President can exonerate him of the charge because his words and actuations from inception, to the actual execution of the Oplan and even in the aftermath thereof, plainly suggest otherwise,” Tang pointed out.

“Purisima's active participation and supervision of a police operation under the false pretense of official position but sans the authority to do so amounted to usurpation of official functions. If Purisima had an iota of respect for the PNP Chain of Command, he should have informed, at the very least, of the details of Oplan Exodus during the turnover of his duties and functions to OIC-PNP Chief [Leonardo] Espina,” she added.

Moreover, Tang said, Purisima should have recused himself from the Oplan Exodus which was reactivated only on December 23, 2014 or after he was already suspended from the service.

“That the OIC-PNP Chief and the DILG Secretary were intentionally kept off the loop renders Purisima's questioned acts more pronounced. His overt acts of actually discharging and performing the powers and functions of the said office are more than enough to establish probable cause for the commission of the crime of usurpation of official functions under Article 177 of the Revised Penal Code,” Tang said.

Suspension over President’s trust

Tang also rejected Napeñas argument that he only followed Purisima’s instruction for Oplan Exodus and did not inform OIC-PNP Chief Espina and DILG Secretary Mar Roxas about Oplan Exodus because Purisima enjoyed President Benigno Aquino III’s trust.

“When Purisima took command and control of the whole Oplan Exodus operation, he was not clothed with authority to act as such since he was then a suspended PNP Chief. But Napenas, notwithstanding knowledge of such, willingly followed the instruction of suspended PNP Chief Purisima relative to the preparation, planning and actual conduct of the operation,” Tang said.

“Accordingly, the undersigned votes to issue a warrant of arrest of accused Purisima and Napeñas for usurpation of official functions under Article 177 of the Revised Penal Code,” Tang added.

Associate Justices Alex Quiroz, Reynaldo Cruz and Michael Musngi concurred with the Sandiganbayan ruling clearing Purisima and Napeñas of graft and usurpation charges.

Associate Justice Bayani Jacinto dissented, while Tang concurred with the dismissal of graft charges but dissented on dropping the usurpation of official functions raps.— BM, GMA News