The Sandiganbayan’s Third Division has granted the prosecution’s plea to consolidate the graft case and the charge of usurpation of official functions filed against former President Benigno Aquino 3rd with the cases filed against former Philippine National Police Director General Alan Purisima and former PNP-Special Action Force Director Getulio Napeñas.
On Friday (December 1), Aquino’s camp submitted the matter to the court’s discretion. The court found the grounds raised by the prosecution to be “meritorious” and thus granted the prosecution’s motion in open court.
The cases–which were filed by the Office of the Ombudsman against Aquino before the Sandiganbayan in November in connection with the police operation in Mamasapano, Maguindanao, in 2015, and which were designated by raffle to the court’s Third Division–will be transferred to the court’s Fourth Division.
The Sandiganbayan’s Fourth Division is where the charge of usurpation of official functions (docketed as SB-17-CRM-0120) and the graft case (docketed as SB-17-CRM-0121) filed by the Ombudsman in January against Purisima and Napeñas are pending.
In its motion for consolidation, the prosecution had said in part that “it is irrefutable that the present cases are closely related to SB-17-CRM-0120 and SB-17-CRM-0121, hence, the necessity to be joined and tried together.”
The graft case and the charge of usurpation of official functions filed against Aquino were docketed as SB-17-CRM-2144 and SB-17-CRM-2145, respectively.
“Consolidation of the present cases should be permitted to accord accused Aquino, Purisima and Napeñas the benefit of saving time and litigation costs considering that they will appear before a single court, which shall hear the totality of the Mamasapano incident. In the same manner, that the prosecution will be not unduly burdened with the separate presentation of the same witnesses and same set of documents before two different courts trying virtually the same case,” the prosecution said.
“More [important], consolidation will allow the 4th Division to issue orders, resolutions or decision which are based on a complete or holistic appreciation of the cases from a complete set of facts with all the alleged perpetrators thereof–accused Aquino, Purisima and Napeñas, all before a single division of the Sandiganbayan,” it added.
Chain of command
In accusing Aquino of graft, the Ombudsman alleged in the charge sheet that he “persuade[d], induce[d]or influence[d]” Purisima “to violate the” PNP chain of command, the Ombudsman’s preventive suspension order and then-OIC [Officer-in- Charge] PNP chief Leonardo Espina’s order for Purisima and other then-suspended police officers to stop performing their respective offices’ duties and functions.
The Ombudsman preventively suspended Purisima for six months in December 2014 pending investigation of an allegedly anomalous courier deal forged by the PNP with Werfast Documentation Agency Inc. in 2011. The PNP terminated the deal in March 2014.
Aquino allegedly “utiliz[ed]the services of Purisima for Oplan Exodus prior to and during its implementation” and allegedly gave “instructions to, receiv[ed]reports and recommendations from and approv[ed]the actions of” Napeñas thru Purisima relative to the preparation, conduct and implementation of Oplan Exodus,” according to the same charge sheet.
In another charge sheet, the Ombudsman accused Aquino of usurpation of official functions under Article 177 of the Revised Penal Code.
It alleged in part that he, “in conspiracy with” Purisima and Napeñas, “cause[d]Purisima to perform and/or exercise the function of the chief of the PNP over Oplan Exodus prior to and during its implementation… despite accused Aquino [3rd] having knowledge that Purisima was under preventive suspension from office… thereby Purisima was under pretense of official position and without being lawfully entitled to do so at the time…”
In filing the cases against Purisima and Napeñas in January, the Ombudsman alleged that Purisima “persuade[d], induce[d]or influence[d]” Napeñas “with Napeñas allowing himself to be persuaded, induced or influenced to violate the PNP chain of command, the Ombudsman’s preventive suspension order and Espina’s order which directed Purisima and other then-suspended police officers to stop performing their respective offices’ duties and functions.”
Section 3(a) of the Anti-Graft and Corrupt Practices Act prohibits a public officer from persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or allowing himself to be persuaded, induced or influenced to commit such violation or offense.
In accusing Purisima and Napeñas of usurpation of official functions, the Ombudsman alleged that Purisima, conspiring with Napeñas, “perform[ed]the function of the chief of the PNP by participating in the mission planning and supervision over the execution of Oplan Exodus… by, among other things, constantly asking and receiving pre-operational updates of Oplan Exodus from Napeñas… and approving the final date of the operation and the time-on-target coordination of the operation…”
The operation, known as Oplan Exodus, was aimed at the capture of Zulkifli bin Hir alias Marwan and his protégé Abdulbasit Usman. Marwan was killed while Usman escaped.
Over 60 people, including 44 PNP-SAF members, were killed in a gunbattle that ensued.
Usman was later killed by the Moro Islamic Liberation Front (MILF) forces in a chance encounter.
In February 2015, the Ombudsman’s office initiated a fact-finding probe, which looked into possible persons responsible in, among others, the planning and conduct of the police operation.
It later approved the recommendation of its special panel of field investigators to initiate preliminary
investigation against Purisima, Napeñas and nine others.
The fact-finding investigation stemmed from news reports and separate complaints filed by Fernando Perito, Pedrito Nepomuceno and Augusto Syjuco Jr. before the office.
While the complaints did not implead Aquino, the Ombudsman motu proprio (on its own) looked into the allegations or reports on his participation.
“And the special panel found that whatever participation the President may have had in the Mamasapano incident does not amount to prima facie [based on a first impression]to a criminal offense, neither was his participation analogous to any of the impeachable offenses,” Assistant Ombudsman Asryman Rafanan said in 2015.
In April 2016, the Ombudsman found basis to charge Purisima and Napeñas who then filed motions for reconsideration but the Ombudsman’s office maintained its ruling.
Three separate complaints accusing Aquino, Purisima and Napeñas of reckless imprudence resulting in multiple homicide were filed at the Office of the Ombudsman after Aquino’s term ended last year.
In a consolidated resolution approved by Ombudsman Conchita Carpio Morales in July, the office dismissed for lack of probable cause the complaint for reckless imprudence resulting in multiple homicide.
It said the proximate cause of the death of the 44 SAF men was the “intentional act” of shooting by hostile forces including the MILF, Bangsamoro Islamic Freedom Fighters and private armed groups.
The Ombudsman, however, found probable cause to charge Aquino with graft and usurpation of official functions.
This prompted the former President and the complainants to seek reconsideration.
‘Within the bounds’
In his motion for partial reconsideration, Aquino said his actions during the briefing for Oplan Exodus and its implementation “were perfectly within the bounds” of his powers and functions as then-President.
He maintained that Purisima’s supposed involvement was limited to being a resource person.
Aquino said Purisima had intimate knowledge of the intelligence on Zulkifli bin Hir alias Marwan including detailed information on previous operations to capture the latter.
“To stress, there is nothing irregular, much less illegal, about my act of utilizing all the resources available at my disposal, including sourcing information and inputs from anyone – whether they are in active service or not.
Certainly, it would be the height of negligence had I not used any and all assets and resources available to me at the time to ensure that I had the full grasp of the operation to be carried out, including the risks and hazards associated with such an operation,” he added.
But the Ombudsman—which, in a consolidated order approved by Morales in September, denied the pleas for reconsideration–alleged that “[t]o this office… the evidence on record regarding the extent of Purisima’s actual participation in Oplan Exodus… shows that he was certainly much more than being a mere resource person.”