TWO justices of the Sandiganbayan submitted opinions that objected to the dismissal of criminal charges filed against former PNP chief Alan Purisima and former PNP Special Action Force director Getulio Napeñas for alleged unlawful participation in an anti-terrorist operation that got 44 police officers killed in 2015.
Separate motions for the dismissal of the cases filed by the two former police officers were granted but only by a narrow 3-2 vote.
Associate Justice and Fourth Division chairman Alex L. Quiroz penned the majority ruling to dismiss both charges of graft and usurpation of official function which earned the concurrences of Associate Justices Reynaldo P. Cruz and Michael Frederick L. Musngi.
Presiding Justice Amparo M. Cabotaje-Tang, in her concurring and dissenting opinion, supported the dropping of the graft charge but said there was enough evidence on record to hold Purisima and Napeñas to trial for usurpation of official function.
Associate Justice Bayani H. Jacinto, in his 15-page dissent, voted to proceed to trial on both charges against the two accused.
The majority resolution said the graft information was defective in the absence of any allegation that Purisima at least offered, or that Napeñas received or at least expected to receive, any consideration in exchange for being induced or influenced by the former PNP chief to do something unlawful.
Based on the allegation in the graft case, Purisima persuaded, induced or influenced Napeñas to violate the PNP chain of command to work together on the preparation and implementation of “Oplan Exodus” to apprehend terrorist bomber Zulkifli Abdhir alias “Marwan” and his accomplice, Akmad Ahmad Batabol alias “Basit Usman,” in Mamasapano, Maguindanao.
At the time, Purisima was already under suspension on orders of the Office of the Ombudsman for a different corruption complaint involving fraud in the delivery of firearms licenses to applicants.
Because of Purisima’s suspension, he was supposed to have no authority to order Napeñas or to even involve himself with police work as Leonardo Espina has been designated PNP officer in charge.
The majority of Sandiganbayan justices, however, held that element of gain or “consideration” is indispensable.
On this issue, Jacinto was the lone dissenter as he insisted that there were only three elements for the graft charge under Section 3 (a) of RA 3019 or the Anti-Graft and Corrupt Practices Act – that the offender is a public officer; that the offender persuades, induces or influences another public officer to perform and act or the offender allows himself to be so persuaded, induced or influenced; and that the act constitutes a violation or rules and regulations or a valid order by a competent authority.
“If the legislators intended to include “consideration” or material remuneration” as an element of the offense, then they could have easily made the inclusion during the period of amendments. Since they did not do so … there is no cogent reason to read something that is not there to begin with,” Jacinto said.
He said the introduction of an element that was not in the letter of the anti-graft law resulted in judicial legislation.
USURPATION OF OFFICIAL FUNCTION
The court’s vote on the second case of usurpation of official function was a closer 3 against 2.
Tang, in her dissenting opinion, said Purisima’s overt act of actually discharging and performing the powers and functions of the PNP chief even if he was effectively stripped of those due to his suspension is “more than enough to establish probable cause against him.”
Likewise, she said the resolution of the Ombudsman clearly established the finding of conspiracy between Purisima and Napeñas.
For his part, Jacinto said the information sufficiently provided all necessary facts that support a finding of probable cause against the two accused.
“Hypothetically admitting the facts in the information, it becomes obvious that by exercising `command and direction’ over Oplan Exodus, accused Purisima arrogated upon himself the functions of the PNP chief. However, since he was under preventive suspension, he could have not done so,” Jacinto said.
He pointed to the detailed narrative of the events from Jan. 4 to 25, 2015, supported by various sworn statements, as enough to sustain the finding that Purisima participated in the planning and execution of Oplan Exodus even while under preventive suspension.