What to do with Mamasapano dismissals

The outright dismissal, without trial and reception of evidence, of the two criminal charges against former Philippine National Police (PNP) chief Alan Purisima and former director of the PNP Special Action Force (SAF) Getulio Napeñas was received with anguish and indignation by the relatives of the 44 SAF victims (SAF 44) of the “Mamasapano Massacre,” and with acrimonious finger-pointing by the lawyers.

In dismissing the cases, the “failure to allege a crime” and the “lack of probable cause” were the grounds cited by the 18-page Sandiganbayan (SBN) resolution in People v. Purisima (Jan. 21, 2020) penned by Justice Alex L. Quiroz, and concurred in by Justices Reynaldo P. Cruz and Michael Frederick L. Musngi. Specifically, the SBN ruled that the information filed by the Office of the Ombudsman (OMB) charging a violation of Section 3(a) of the Anti-Graft Law “failed to allege a crime” because it did not say that the accused received, or at least expected to receive, “any material remuneration or consideration” for performing the prohibited acts.

On the other information charging “usurpation of official functions,” the SBN held that Purisima, though suspended by the OMB as PNP chief, was merely following the direct orders of then President Benigno Aquino III as the commander-in-chief of the police.

Since the similar charges for violation of the Anti-Graft Law and for usurpation of official functions against Aquino were dismissed earlier by the SBN, and since no case had been refiled against him in connection with the Mamasapano Massacre, the SBN assumed that Aquino did not exceed his powers in ordering Purisima (who in turn passed on the orders to Napeñas) to supervise the planning and execution of “Oplan Exodus” that resulted in the killing of the SAF 44.

The SBN stressed that to proceed with the arrest and trial was pointless and unjust because even if the charges were proven, no conviction for any crime is possible. The Anti-Graft Court, however, made it plain that the dismissals were “without prejudice to the filing of the appropriate charge/s against” the two officers. In his dissent, Justice Bayani H. Jacinto opined that the majority erred in requiring “material remuneration or consideration” to constitute a violation of Section 3(a) of the Anti-Graft Law, clarifying that this allegation is needed only “when the inducement does not involve the commission of a crime.” But it is not needed “when the inducement involves the commission of acts that would amount to a crime,” as in this case.

SBN Presiding Justice Amparo M. Cabotaje-Tang agreed with the majority in dismissing the information for a violation of the Anti-Graft Law but dissented in regard to the information for usurpation of official functions, because “plainly, the constitutive elements” of this crime were “sufficiently alleged in the subject Information.”

Faced with this debate among the SBN justices, what should the SAF 44 and the OMB do? Should they ask for reconsideration, and if unsuccessful, appeal to the Supreme Court? Or, should they just accept the majority’s ruling and file new “appropriate charges”?

Instinctively, the lawyers of the OMB and the SAF 44 will probably want to ask for reconsideration and, later on, to be upheld by the Supreme Court. They will probably want clear jurisprudence on the issues debated on by the SBN justices.

However, even if they win in the Supreme Court, the case would probably be remanded to the SBN for trial. And if the judgment finds the accused guilty, the accused could still appeal the guilty verdict to the high court.

The Mamasapano Massacre happened five years ago and the two informations were filed two years ago. Yet, the SBN produced only a resolution dismissing the informations. To ask for reconsideration and then appeal to the Supreme Court would entail a few more years.

By that time, some witnesses may disappear, their memories may falter, the evidence may be misplaced, and public support diminished. And even if the SAF 44 endure all these, they would still have to await trial in the SBN and perhaps an appeal again in the high court.So, to avoid further delay, it may be more prudent to accept the SBN resolution. Let the lively legal debate of the SBN justices be resolved in another case. But let speedy justice be done to the SAF 44 now.

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