FACT CHECK: What can Aguirre's DOJ do in the Napoles case?

MANILA, Philippines – Stephen David, lawyer of alleged pork barrel scam mastermind Janet Lim-Napoles, met with Justice Secretary Vitaliano Aguirre II on Thursday, May 11, to begin "exploratory talks" on the controversial Priority Development Assistance Fund (PDAF) cases.

On May 5, the same day that the Court of Appeals (CA) acquitted Napoles of serious illegal detention, David sent a letter to Aguirre requesting his client's transfer from the Correctional Institute for Women (CIW) in Mandaluyong to the National Bureau of Investigation (NBI) custodial center.

Aguirre has expressed his accommodation to Napoles and even said he is studying the possibility of turning her into a state witness. He also said he will reopen the investigation into the PDAF scam cases. (READ: After CA acquittal: What's next for Janet Napoles?)

But does Aguirre – or the Department of Justice (DOJ) – have the power to do all this?

1. Jail transfer

Even with her acquittal in the serious illegal detention case filed by pork scam whistleblower Benhur Luy, the anti-graft court Sandiganbayan still has jurisdiction over Napoles, who has pending plunder cases before the court.

Under the procedure – a point also reiterated by Sandiganbayan sources – the anti-graft court has the say on whether or not Napoles can be transferred to the NBI.

David knows this. "Dapat may court order talaga. Sa ngayon, wala pa kaya status quo, nandoon siya sa CIW," he said when court reporters followed up on his statement that he had requested the DOJ for the jail transfer.

(There really has to be a court order. There's none, for now, so it's a status quo; that's why she's till at the CIW.)

Asked about it, Aguirre told Rappler in a text message, "Yes, it will be the court's call but we could suggest the place of confinement."

LOOK: Stephen David's letter to DOJ Secretary Aguirre requesting the transfer of Janet Lim Napoles to the NBI custodial center. pic.twitter.com/E7hKJx6EmF — Lian Buan (@lianbuan) May 11, 2017

2. State witness

In a press conference on Wednesday, Aguirre clarified the qualifications of a state witness.

"I did not say that (Napoles) will definitely be a state witness. I said we are going to study it, because in cases of state witnesses, it must appear that you’re not the most guilty," Aguirre said.

He cited a Supreme Court (SC) ruling that in corruption cases, it's the public official, not the private citizen, who is considered the most guilty.

But who gets to say who can be made state witness? In a text message to Rappler Thursday morning, Aguirre said that "no other bodies" apart from the DOJ will have a say.

This, however, is contrary to Rule 119 of the Revised Rules of Criminal Procedures. Under Section 17, the court will have the final say "upon the motion of the prosecution before resting its case." Simply put, it is the body who prosecuted the case who gets to recommend to the court that someone is qualified as state witness. In Napoles' case, it's the Office of the Ombudsman.

It was also the Ombudsman who turned Ruby Tuason into a state witness in the PDAF cases.

When Rappler pointed it out, Aguirre simply responded, "Yes, the Ombudsman."

What Aguirre can do, however, is admit Napoles into the Witness Protection Program or the WPP, which is under the DOJ.

"Ang witness puwedeng covered siya ng WPP, pero hindi siya state witness. Ang puwede lang mabigay kay Napoles ay protection [not immunity]," says lawyer Jose Justiniano, a former DOJ undersecretary who was deputized by the Ombudsman to prosecute the PDAF cases.

(A witness can be under the WPP without necessarily becoming a state witness. The only thing the WPP can give Napoles is protection [not immunity].)

3. Reinvestigation

Aguirre said he will reopen the investigation of the PDAF cases, promising a "fairer" justice which will cover allies of the previous administration.

But according to Justiniano, the Ombudsman has the exclusive jurisdiction to conduct preliminary investigation of the PDAF cases. The Sandiganbayan law states that any case cognizable by the anti-graft court shall be within the prosecutorial jurisdiction of its partner-agency, the Ombudsman.

"Ang puwede lang gawin ng DOJ fact-finding. 'Yung aming imbestigasyon ng DOJ at NBI noon, iinulit din ng Ombudsman. 'Nung nag-imbestiga sa DOJ may hindi kami naisama sa kaso si [former budget undersecretary Mario] Relampagos, pero pagdating sa Ombudsman, kasama siya," Justiniano said.

(What the DOJ can only do is fact-finding. Our investigation at the DOJ and the NBI before was done again by the Ombudsman. When the DOJ conducted its investigation, there were people not included in the case like [former budget undersecretary Mario Relampagos]. But at the Ombudsman's level, he was included.)

Aguirre told Rappler that the the DOJ "has concurrent jurisdiction with the Ombudsman to hear the case during preliminary investigation." He is citing item number 3 in the jurisdiction provision of the memorandum of agreement (MOA) between the DOJ and the Ombudsman.

The same provision, however, states: "The OMB and the prosecution offices of the DOJ shall have concurrent jurisdiction over complaints for crimes involving public officers and employees falling outside the exclusive jurisdiction of the Sandiganbayan. Provided, that the office where such a complaint is filed for preliminary investigation shall acquire jurisdiction over the complaint to the exclusion of the other. Provided further, that the OMB may refer/endorse any complaint filed before it to any prosecution office of the DOJ having jurisdiction over the complaint."

Pressed further, Aguirre admitted that even if the DOJ reinvestigates the case, "it will be transmitted to the Ombudsman."

During Wednesday's press conference, Aguirre said he wants to take over the reinvestigation because the Ombudsman is "too slow" in conducting investigations.

"This case sa (in the) Priority Development Assistance Fund (PDAF), this has been filed before the Ombudsman, two or 3 years ago, but nothing has come out of it. It is better to be filed before the Department of Justice kasi masyadong mabagal daw ang takbo ng imbestigasyon sa Ombudsman (investigation is too slow at the Ombudsman)," Aguirre said.

The Office of the Ombudsman has yet to respond to Aguirre's statement. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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