The SAF 44 legal case
Ombudsman Conchita Carpio Morales has found probable cause to file charges against dismissed Philippine National Police chief Alan Purisima and retired PNP Special Action Force director turned senatorial candidate Getulio Napeñas. It is a logical outcome of the facts that have been established beyond doubt, but at the same time it is an extraordinary development because it brings the legal case involving the deaths of at least 63 people in the fields of Mamasapano, Maguindanao, including the so-called SAF 44, right to Malacañang’s doorstep.
Consider that the charges faced by the two police generals include “usurpation of authority” (under Article 177 of the 85-year-old Revised Penal Code) and unlawful persuasion of a public officer (Section 3a of the 55-year-old Anti-Graft and Corrupt Practices Act).
Their own testimony, repeated in various forums and before Senate and House committees, confirm that, despite being under suspension, Purisima continued to exercise responsibility for what became the ill-conceived operation to arrest or kill Malaysian bombmaker Marwan, and that Napeñas acted with Purisima to keep the operation a secret from then Interior Secretary Mar Roxas and PNP Officer in Charge Leonardo Espina.
The black letter of Article 177 of the Revised Penal Code offers a clear definition of a person usurping authority or official functions: “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…”
The Ombudsman found that “during the period of Purisima’s suspension, he had no authority to perform the duties and functions, much less supervise and/or participate in the conceptualization, mission planning, and execution of a high risk police operation.” Purisima has tried to explain away his participation in this high-risk police operation by describing his role as merely that of a consultant, but his actions and those of Napeñas give the lie to his version of events. That Roxas and Espina were kept out of the loop is proof that Purisima still called the shots, because whether it was a direct order or a mere piece of advice, it was the suspended PNP chief who gave the instructions and Napeñas who followed them.
The Ombudsman added: “If Purisima had an iota of respect for the PNP Chain of Command, he should have informed [his successor], at the very least, of the details of the Plan Exodus during the turnover of his duties and functions to OIC-PNP Chief Espina.” She said Napeñas’ decision to heed the suspended PNP chief “can be construed as an act in agreement to commit the crime of usurpation of official functions with Purisima.”
By also forcing other officers to violate the chain of command, Purisima and Napeñas also ran afoul of Section 3 (a) of Republic Act No. 3019, by “[p]ersuading, 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.”
The police generals face more charges, including grave misconduct, gross neglect of duty and conduct prejudicial to the best interest of the service, but the first two charges raise the issue of President Aquino’s accountability for the controversial operation.
Purisima and Napeñas acted the way they did because they thought they were following the President’s will. There has absolutely been no showing at all that they would have continued the operation, or continued to keep it secret from the interior secretary and the OIC of the PNP, if the President had not instructed them or if they did not think that the President thought it necessary.
The Ombudsman has swept aside Napeñas’ defense—that he followed Purisima because he saw him as the President’s “most trusted man.” We agree: It is no defense at all. These are responsible officers who should have known better than acquiesce to the violation of the chain of command. And yet there it is: There would have been no usurpation of authority if the President had not wanted it.
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