THE charges of usurpation of official functions filed against then President Benigno S. Aquino III were doomed to fail. Then ombudsman Samuel Martires on July 5, 2019 himself argued the motion to withdraw the information against Noynoy Aquino before the Sandiganbayan.
No President can be accused of usurpation, Martires said, and “any lawyer who claims otherwise should go back to law school.”
Aquino was indicted after his term for allowing the participation of suspended PNP chief Alan Purisima in the 2015 operation against two terrorists, which led to the Mamasapano massacre of 44 Special Action Force police.
If Noynoy Aquino didn’t usurp any function—since as President he could tap anyone, including civilians—in ordering the operation, how then could the two police officials, Purisima and SAF chief Getulio Napeñas, who followed the presidential order, be guilty of the same crime? They merely obeyed the order of their commander-in-chief, which could be assumed to be lawful.
That was the thinking of a number of people watching the justice scene when the Sandiganbayan approved the dropping of charges against Noynoy in 2019. Last Tuesday (Jan. 21), a special division of the Sandiganbayan cleared Purisima and Napeñas as well. Could people approve the clearance of Noynoy and reject that for the two police officers?
The reason for the dismissal, “lack of probable cause,” didn’t mention the common-sense argument, thus: Since the principal, Noynoy, didn’t commit a crime, as it was within his authority to tap anyone to execute his orders, the persons he ordered couldn’t have unlawfully usurped function or power.
Instead, the Sandiganbayan ruled this week, there was no graft or usurpation because Purisima and Napeñas didn’t receive “any consideration” for the use of the influence and there was “no pretense of official function.”
Apparently, the Sandiganbayan didn’t regard the cops’ regular salaries as PNP officers or the expectation of a favor from Noynoy as “consideration.” And the Anti-Graft and Corrupt Practices Act (Republic Act 3019), doesn’t mention “consideration” as an element in usurpation but the court said “it was in keeping with the spirit of the law and not the letter of it.” As to “pretense of official function,” didn’t the President pretend, along with the two other officers, that Purisima wasn’t suspended at all, for purposes of that special operation?
The sum of it all:
Purisima and Napeñas benefited from the line of argument that the President couldn’t be usurping functions that he could legally exercise under the law and they couldn’t be usurping the powers Noynoy granted them; and
(2) Nobody for now, other than the rebels who actually fired the bullets, could be held liable for the death of 44 police members.
The Sandiganbayan ruling says they may be charged with the right and proper crime. Last November the private group Volunteers Against Crime and Corruption re-filed 44 counts of reckless imprudence resulting in homicide, against ex-president Aquino, its theory being: Noynoy’s negligence and other acts resulted in multiple homicide. But the Supreme Court in September, Rappler reported, resolved that there was “no probable cause to charge private respondents with reckless imprudence resulting in multiple homicide.”
Civil damages maybe
Noynoy might have committed error of judgment. Purisima and Napeñas might have been wrong in following orders. But they were not criminal acts. Or so the anti-graft court ruling tells us. Perhaps aggrieved families of the dead cops could sue them for civil damages.
To Duterte and future presidents, the decision—which may not be successfully assailed—benefits them too.
Not above the law
It reinforces the common belief that the commander-in-chief must get as much room as can be given under the law. Unless criminal intent or recklessness is clearly proven, the President shouldn’t be restricted by the threat of criminal sanction.
But surely no President is above the law. Any abuse or excess may be punished by impeachment and removal during his term and, after he steps down, by criminal and civil prosecution.