Ombudsman 'blunder' may cost the plunder charges?

MANILA, Philippines – It happened before in the plunder case against former president Joseph Estrada and the robbery-extortion case of former justice secretary Hernando “Nani" Perez. The Ombudsman was in charge of both cases, but the outcomes were different.

Estrada was found guilty of the crime, but Perez managed to get away as the anti-graft court dismissed all 4 charges against him. In both, blunders were committed along the way.

Will it be any different in the current cases involving at least 3 Philippine senators linked to the pork barrel scam?

Some 48 hours before the arraignment of Senator Ramon "Bong" Revilla Jr, government prosecutors scrambled to file an amended information in the plunder complaint against the lawmaker and two of his colleagues. The move was an implied admission that the original charge sheets were inadequate. (READ: Weak PDAF cases? Ombudsman amends info vs 3 senators)

A memo issued by the Ombudsman dated June 24 stated that the introductory paragraphs in the 3 plunder complaints “may be rephrased” to highlight the fact that the senators were the ones “who amassed, accumulated and acquired ill-gotten wealth in connivance or in conspiracy with his co-accused public officer and private individuals.”

But the anti-graft court's first division trying Revilla’s plunder case on Thursday, June 26, dismissed the prosecutor’s move to amend its original complaint on the ground that it involves substantial changes.

A similar motion was filed for Senator Juan Ponce Enrile's plunder case. The 3rd division, handling his cases, has yet to hear and resolve the motion.

Prosecutors managed to realize their potential blunder on Friday, June 27, when they withdrew their bid to amend Senator Jinggoy Estrada’s plunder charge sheet – but only upon the advice of Associate Justice Roland Jurado, chair of the anti-graft court’s 5th division hearing the case.

The effect of amending the information will be the release of the accused, since the original information was used in determining probable cause against Estrada.

Costly blunder?

This early, some say they're beginning to see the handwriting on the wall, and it's not pleasant.

A former government prosecutor warned that the particular blunder would be costly to the Ombudsman.

“The information is the heart of the case. If the heart has an ailment, things do not look so rosy,” explained the former prosecutor who helped pin down the Estrada patriarch for plunder.

“I am not prepared to say if it was deliberate or just plain intentional. But these things do not just happen,” the former prosecutor said, when asked if there was sabotage involved.

Is there still hope to salvage the cases?

The former prosecutor said the Ombudsman should insist on the amended complaint and bring its argument to the SC before it’s too late.

“If they get off the hook, you can no longer file the same charge against them. That would be double jeopardy.”

Who’s the mastermind?

Private complainant lawyer Levito Baligod, however, downplayed the blooper committed by the prosecution. “The Ombudsman just wanted clearer wording in the information to prevent questions later to be raised by the defense.”

In the original information filed by the Ombudsman with the anti-graft court, the prosecutors stated that alleged pork barrel scam mastermind Janet Lim Napoles misappropriated the Priority Development Assistance Fund (PDAF) of lawmakers “for her personal gain.”

The wording, in effect, shows that Napoles is the central character in the plunder case, with lawmakers playing the secondary role. In her motion for judicial determination in the 3 separate divisions, she pointed out jurisprudence that has held that conspiracy in a plunder case must be geared toward the enrichment of public officials and not private individuals. (READ: No conspiracy to enrich solons, Napoles tells court)

She may be right.

One major element in the plunder law is that it is principally committed by public officials, with relatives, family members and private individuals as co-conspirators if conspiracy is present. This was reaffirmed by the Supreme Court in its previous rulings related to the plunder case of former president Estrada.

“The information should fit in with the law…that the principal character is a public officer. But Napoles is equally liable as a co-conspirator, under the concept of conspiracy,” the former prosecutor commented.

In the case of Revilla, government prosecutors sought to underline that Revilla “was the one who amassed, accumulated and acquired ill-gotten wealth in connivance or in conspiracy with his co-accused public officer and private individuals.”

To beef up that claim, they also stressed the point that it was Revilla who exerted “undue pressure” and endorsed the bogus non-governmental organizations put up by Napoles “in exchange for kickbacks, percentages or commission…at the expense and to the damage and prejudice of the Filipino people…”

But the 1st division rejected the prosecution’s motion to amend the information, siding with the defense that it constituted “substantial amendments.” (READ: Sandiganbayan junks Ombudsman's bid to amend 'pork scam' information)

Erap and Nani cases

The former prosecutor said it is well within “the discretion and authority” of the prosecution to amend the information, even if it constitutes substantial amendments, provided this is done before the arraignment. “That is the prerogative and right of the prosecution.”

One example is the Joseph Estrada plunder case, where the prosecution changed the information filed with the Sandiganbayan from a general statement of facts to a more specific enumeration of the offenses. Apart from the argument that the plunder law was vague and ambiguous, Estrada also argued that the amended information charged more than one offense.

The anti-graft court, however, junked Estrada’s motion to quash, prompting him to bring the issue before the Supreme Court. The High Tribunal upheld the ruling of the Sandiganbayan. In its ruling, the SC said that the amended information “itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense.”

Another example is the $2-million robbery-extortion complaint against Perez which, according to sources, was initially defective when it was first filed before the anti-graft court.

The information on robbery-extortion was withdrawn and re-filed, this time stating the element of intent to correct the defect. But it was apparently all for show. At the time, the Ombudsman was Merceditas Gutierrez who was closely associated with former president Arroyo and a former subordinate of Perez at the DOJ.

Perez’s case is one classic example of how to lose in court without even trying. He was cleared of all the 4 charges filed against him.

The 1st division cleared Perez on the charge of robbery for lack of evidence, while the 2nd division violated the defendant’s right to speedy disposition of the case for taking 5 years to investigate. The 3rd division junked the charge pertaining to violation of the Code of Conduct and Ethical Standards for Government Officials and Employees for being redundant.

The fourth case, involving falsification of public documents, was dismissed by the 5th division on the ground that the testimonial and documentary evidence presented by the prosecution were all hearsay. The Court pointed out that witnesses who were supposed to testify on the documents were not presented in court even as witnesses who were supposed to give expert testimonies were not called to testify. (READ: Anti-graft court clears Nani Perez of all charges)

No effect?

Overall Deputy Ombudsman Melchor Arthur Carandang, in a phone interview, downplayed the 1st division’s rejection of the amended complaint pertaining to the pork barrel scam case, saying that the thumbed down changes “are not significant.”

Carandang said the original complaint “still retained the essence” of plunder and the conspiracy of all those involved.

“The anomaly happened after the receipt of the kickbacks. The anomaly was consummated by the lawmakers even before the implementation of their PDAF,” Carandang said, which showed the active participation of lawmakers.

Baligod said “there was no necessity to allege that Napoles used the PDAF for her personal gain” and that the rejected amended complaint only seeks to eliminate any superfluous content in the complaint.

Besides, under the plunder law, "it is immaterial who is the mastermind.” One only has to prove there was a conspiracy to amass wealth between the lawmaker and the co-conspirators, he saidRappler.com