Prosecutors in plunder cases at 'tremendous disadvantage' – Diokno

MANILA, Philippines – In what is perhaps the biggest corruption case in the country, government prosecutors are at a “tremendous disadvantage” both in terms of skill and resources, Jose Manuel “Chel” Diokno, dean of the De La Salle University College of Law said on Thursday, July 3.

In an interview on TalkThursday, Diokno said the best litigators unfortunately “never end up in government” but in big private law firms.

Pitted against the defense’s veteran lawyers such as Estelito Mendoza and Jose Flaminiano – both 84 years old – the public prosecutors are at a disadvantage. In the past the anti-graft court Sandiganbayan had a conviction rate of just 6%, which eventually rose to 42% and then 70% under the watch of former Ombudsman and Solicitor General Simeon "Sonny" Marcelo, and former Special Prosecutor Dennis Villa-Ignacio, insiders said.

“Nowadays you don’t find that many public prosecutors are really effective trial lawyers,” Diokno added.

Given such high profile personalities charged with plunder, the cases filed with the Sandiganbayan are not just about court battles but also a battle for public opinion. Recent moves to amend the charge sheets filed with the court have raised “a lot of questions about how effectively they can prosecute the case,” Diokno pointed out.

While prosecutors are allowed to amend informations filed before an arraignment, their recent attempts to amend the plunder cases involving Senators Jinggoy Estrada and Ramon "Bong" Revilla Jr have “not exactly enhanced their credibility to the public.” Along with Senator Juan Ponce Enrile, the two lawmakers have been issued arrest warrants by the anti-graft court.

Revilla and Estrada are detained at the Camp Crame Custodial Center, while Enrile will be put under temporary hospital arrest.

Diokno explained that one possible reason for the amended informations that prosecutors wanted to file is a structural problem within the Office of the Ombudsman. “For a long time, and up to now, the unit within the Ombudsman that prepares the information and conducts the preliminary [investigation] is a different unit from the prosecutors who actually handle the trial [and] present the evidence. So the prosecutors who are tasked with conducting the trial, basically they receive the information, and from what I understand, they don’t have any input on how it was prepared.”

Prosecutors are expected to argue to the best of their ability whatever motion they file in court. Diokno said that if the court disagrees, they ask for a reconsideration. If it’s denied, they elevate the matter to the Supreme Court.

Asked if the prosecutors in the Estrada case shouldn’t have buckled down when told by Justice Roland Jurado of the 5th division that amending their information could result in the release of the accused from detention, Diokno said, “When you go to court, you never back down….When you go to court, suddenly you’ll surrender to the justice? I don’t think that’s the right way to handle things.”

Private prosecutors, accountability

If the recent developments on the plunder case are any indication of what could go wrong, they also emphasize the need for the involvement of private prosecutors, as well as of ordinary citizens who can go over the records, analyze the pleadings and motions filed, and exact accountability in the process.

“I think that they would benefit a lot if private prosecutors got involved in the case….I would have more confidence in the private prosecutors than with the public prosecutors. Questioning witnesses, that’s an art,” said Diokno, who has also been involved in the training of Ombudsman lawyers since 2005.

As in the plunder case of former president Joseph Estrada, there were private prosecutors who assisted, and there were other government lawyers not within the Office of the Ombudsman who were deputized to help. Diokno pointed out that there are more seasoned lawyers in the Department of Justice than the Office of the Ombudsman at present who could be tapped as well.

In addition, citizens should start watching and making sure government prosecutors do their jobs well. “It’s too important to just leave it to them. And in my experience, if you leave it to them…things…bad could happen.”

Bad things include corruption and other temptations which are made possible by multiple layers in the judicial system. Diokno pointed out that the field investigation office in the Office of the Ombudsman which conducts fact-finding before the preliminary investigation is really unnecessary. Field investigations cause delays in the Ombudsman and open up the system to corruption.

Who checks on erring prosecutors? Diokno said it should be the Office of the Ombudsman. But he added, “The fact that they belong to the Ombudsman’s Office and the fact that you have to file a complaint against them before the same office, of course makes it difficult to hold them accountable.”

Besides corruption and unnecessary layers of investigation, the judiciary also needs to fill up trial courts with judges. Diokno said a third of the country’s courts is vacant. “Twenty-seven percent of our trial courts have no judges. So how can you expect us to have speedy cases?” Rappler.com