MANILA - The Office of the Ombudsman has found probable cause to file charges against former Philippine National Police (PNP) chief Alan Purisima and ex-Special Action Force director Getulio Napeñas for the Mamasapano operation that saw 44 SAF troopers killed, the biggest loss of the police in recent history.

The Ombudsman said the two face charges of usurpation of authority or official functions (Article 177, Revised Penal Code) and violation of Section 3(a) of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019).

Complaints against the other PNP officials, namely: Fernando Mendez, Jr., Noli Taliño, Richard Dela Rosa, Edgar Monsalve, Abraham Abayari, Raymund Agustin Train, Michael John Mangahis, Rey Ariño and Recaredo Marasigan were ordered dismissed.

The January 25, 2015 Mamasapano operation involved a clandestine operation by SAF troopers to neutralize bomb expert Marwan.

The investigation revealed that the SAF submitted to Purisima on November 2014, the concept of operations to neutralize the terror target. However, the Office of the Ombudsman had placed Purisima on preventive suspension starting December 2014 over an anomalous courier service deal.

But Purisima continued to meet with Napenas and other top Armed Forces officials on December 2014 about Oplan Exodus, the plan to neutralize Marwan.

On January 9, both Purisima and Napenas met with President Aquino to give mission updates and a new concept of operations. Records show that Purisima tasked the SAF to conceptualize the Marwan operation.

Based on the complaints filed by the Field Investigation Office, Purisima was charged for usurping official functions and for violating the chain of command when he actively participated in the mission planning and execution of Oplan Exodus despite the Ombudsman's preventive suspension order.

Napeñas, on the other hand, was considered as Purisima's cohort for taking orders from a suspended PNP chief, without the knowledge and approval of then PNP Officer-in-Charge Leonardo Espina.

Purisima earlier claimed that "during his preventive suspension, there was never any explicit representation that he was acting as the Chief PNP."

Meantime, Napeñas alleged that "Oplan Exodus was a high-combat operation incapable of perfect execution."

In the 40-page Joint Resolution, Ombudsman Conchita Carpio Morales ruled 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.”

According to Ombudsman Morales, “in short, Purisima was sending the unwritten yet visible message that he was, albeit he was not authorized to act and function as Chief PNP."

"If Purisima had an iota of respect for the PNP Chain of Command, he should have informed, 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.

The Ombudsman also ruled that because of Napenas' decision to take orders from the suspended Purisima, "[it] can be construed as an act in agreement to commit the crime of usurpation of official functions with Purisima."

“[Napeñas’] justification to heed such order—that Purisima was the Commander-in- Chief’s most trusted man and was allowed by the President to participate in the planning and execution of the Oplan—does not lie,” said Ombudsman Morales.

Aside from criminal indictment, Purisima and Napeñas were also found administratively liable for Grave Misconduct, Gross Neglect of Duty and Conduct Prejudicial to the Best Interest of the Service.

However, since Purisima was ordered dismissed from the service in June 2015 and Napeñas retired in July 2015, the alternative penalty of fine equivalent to their salary of one year was imposed. They were also meted the accessory penalties of perpetual disqualification for reemployment in the government service, forfeiture of retirement benefits and cancellation of eligibility.

Under Article 177 of the Revised Penal Code, in order to be liable for Usurpation, "there must be a clear showing that the person being charged had performed an act pertaining to any person in authority or public officer of the Philippine government, under pretense of official position, and without lawfully being entitled to do so."

Meanwhile, Section 3(a) of R.A. No. 3019 prohibits a public officer who persuades, induces or influences another public officer to perform an act constituting a violation of rules or regulations.