YEARENDER: Ombudsman loses top corruption case

MANILA, Philippines — More than five years ago the public was shocked and enraged over news of how billions of pesos of government funds were stolen through the pork barrel scam.

Fast forward to 2018: one of the accused key players in the scam, former senator Ramon Revilla Jr., walked free from detention after being acquitted of his plunder case by the anti-graft court Sandiganbayan.

“For failure of the prosecution to establish beyond reasonable doubt that accused Revilla received directly or indirectly the rebates, commissions and kickbacks from his PDAF (Priority Development Assistance Fund), the Court cannot hold him liable for the crime of plunder. Accordingly, he is acquitted,” the Sandiganbayan Special First Division declared in its decision promulgated on Dec. 7.

Revilla and fellow former senators Jinggoy Estrada and Juan Ponce Enrile were the first batch of lawmakers charged by the Office of the Ombudsman in June 2014 for the alleged allocation of millions of pesos of their PDAF or pork barrel to bogus non-government organizations owned by alleged scam mastermind Janet Lim-Napoles and, upon doing so, supposedly received hefty commissions or kickbacks.

The succeeding years saw the filing of more cases at the Sandiganbayan against over a dozen former and incumbent members of the House of Representatives and the Senate in connection with the pork barrel scam, considered as one of the country’s biggest corruption scandals involving more than P10 billion in public funds. 

The plunder case against Revilla served as the first pork-related case resolved by the anti-graft court, with three of five magistrates voting for his acquittal.

Reasonable doubt

The majority, in their decision, said that while the ombudsman’s prosecution panel was able to establish that the transactions of Revilla’s former staff member Richard Cambe with Napoles’ NGOs were “sham,” it failed to prove that Revilla had knowledge or had given his authority for such transactions.

They said it was also not proven that the kickbacks or commissions supposedly received by Cambe from Napoles’ then right-hand man, Benhur Luy, reached Revilla.

Thus, it was only Cambe and Napoles who were found guilty of the offense and sentenced to reclusion perpetua or a minimum of 20 years to a maximum of 40 years of imprisonment.

The court’s pronouncement was contrary to the ombudsman’s allegation that Revilla allowed the release of about P517 million of his PDAF for 2004 to 2010 by supposedly signing several endorsement letters identifying Napoles’ NGOs as partners in implementing his livelihood and agricultural projects, which turned out to be “ghost” or never implemented.

The ombudsman alleged that Revilla, through Cambe, received a total of P224.5 million in kickbacks from Napoles in exchange for his PDAF allocation. 

Veteran lawyer and former Ateneo de Manila University School of Government dean Antonio La Viña told the The STAR that the magistrates who voted for Revilla’s acquittal cannot be faulted as the prosecution created “enough reasonable doubt” on the former senator’s guilt.

This was after whistle-blowers Marina Sula and Mary Arlene Baltazar recanted their previous testimonies and bared that Revilla’s signatures on the endorsement letters and other supporting documents were just forged by Luy without the then senator’s knowledge or consent.

Sula and Baltazar’s testimonies were further bolstered by the defense’s presentation of a forgery expert who testified that he observed stark differences between the senator’s original signatures and those appearing in the endorsement letters.

Strongest evidence

Maria Ela Atienza, professor and chairman of the University of the Philippines Department of Political Science, on the other hand, said the decision of the three Sandiganbayan magistrates did not consider the evidence presented by the prosecution.

“It (majority decision) also made the senator appear to be innocent but at the same time a fool who is unaware of the transactions of his trusted (aide),” Atienza said.

Atienza said the majority should have at least considered the Anti-Money Laundering Council (AMLC)’s inquiry report on the bank transactions of Revilla, which was previously considered by the ombudsman as its strongest evidence against the former senator.

The AMLC report showed a significant increase in Revilla’s cash in banks from 2004 to 2010, which was disproportionate to his declared assets in his statements of assets, liabilities and net worth (SALNs) for those years.

The AMLC report also showed that Revilla used to deposit and withdraw huge amounts of money to and from his bank accounts within 30 days from the dates he supposedly received kickbacks or commissions from the scam as recorded in Luy’s daily disbursement records or “ledger.”

La Viña and Atienza however, both agreed that the decision would have a far-reaching impact on the pending “pork” cases, especially on the plunder cases of Estrada and Enrile.

“In retrospect, the prosecution should have looked for the ‘smoking gun’ and direct evidence against the senators themselves. A circumstantial case is weak and that is why you will likely see acquittals also in Enrile and Estrada, given that the prosecution had the strongest case against Revilla,” La Viña said.

On Dec. 27, Napoles filed a motion for reconsideration on her conviction, saying that Revilla’s acquittal consequently extinguished the crime as there can never exist a plunder offense without a “main plunderer” in the case.

Cambe, meanwhile, informed the Sandiganbayan that he is appealing his conviction directly to the Supreme Court, insisting that the anti-graft court’s decision was “contrary to law and the evidence on record.”

The prosecution, on the other hand, allowed the 15-day period to appeal the decision to lapse without filing any motion. 

This, however, was not surprising as Ombudsman Samuel Martires last September issued an order directing government prosecutors to no longer appeal any judgement of acquittal, contrary to the practice under his predecessor, former ombudsman Conchita Carpio-Morales.

Martires said his new policy is in accordance with the constitutional provision against double jeopardy.

Morales, meanwhile, maintained that her leadership was able to present a strong case against Revilla. She also maintained that the case was not politically motivated as earlier claimed by Revilla.

In September 2017, the Sandiganbayan Fifth Division denied Estrada’s motion to dismiss his plunder case, but nonetheless allowed him to post bail due to the prosecution’s supposed lack of evidence to show that he is the “main plunderer.”

In late 2018, the prosecution had rested its case against Estrada. With his upcoming turn to present his counter-evidence, Estrada bared in a television interview that his camp will soon file a demurrer to evidence to seek dismissal of the case.

La Viña, however, warned that “Estrada should be careful about filing a demurrer” as the court’s earlier grant of bail is not a guarantee that the evidence against him is weak.

On the case against Enrile, however, La Viña expressed concern for the prosecution as the evidence seems weaker than those against his colleagues.

Revilla, Estrada and Enrile are all seeking reelection in the Senate in May 2019 midterm elections, with the first two even faring well in the early surveys. 

Atienza said this shows “the continued dominance of political families and candidates with popular surnames among voters.”

Lessons learned 

For La Viña, the recent setback that the ombudsman has suffered in the case of Revilla should push the agency to improve on its evidence gathering.

“It’s all about the evidence, and how direct it is. They should look at the evidence again and proceed only where there is direct evidence,” La Viña said.

Atienza meanwhile said Revilla’s acquittal must not deter the ombudsman from running after the other personalities involved in the pork scam.

“There are plenty of former and incumbent lawmakers linked with the PDAF scam. Depending on available evidence, they should be charged and their cases pursued regardless of whether they are currently linked with the Duterte administration or in the opposition,” Atienza said. 

On a positive note, the Sandiganbayan in 2018 was able to show that it can rule against the powerful and the elite.

This was proven when the court’s Fifth Division on Nov. 9 convicted former first lady and incumbent Ilocos Norte Rep. Imelda Marcos on seven counts of graft over her creation of private foundations in Switzerland where she and her husband, the late strongman Ferdinand Marcos, supposedly stashed about $200 million in public funds illegally amassed during the martial law.

The Fifth Division later received backlash from the public for allowing Mrs. Marcos to post bail while she appeals her conviction before the Supreme Court. This was after she snubbed the Nov. 7 promulgation of the decision on her cases and yet was captured in photos attending the birthday party of her daughter Imee Marcos later that night. 

Still, no one can dispute that the Fifth Division’s Nov. 9 decision is a landmark ruling now serving as the first conviction in a criminal case of a member of the Marcos family.

Meanwhile, after 31 years, the court’s Second Division on Aug. 7 finally ordered the turnover to the government of P83 billion in assets illegally acquired during the martial law regime using the Coconut Industry Investment Fund (CIIF) or coco-levy fund.

Ordered to be transferred to the government for the benefit of coconut farmers were six companies known as the CIIF Oil Mills Group, 14 CIIF holdings companies and these holding companies’ 753.85 million CIIF shares of stocks in San Miguel Corp. worth P71.04 billion.