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09:51 PM September 21st, 2013

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By: Artemio V. Panganiban, September 21st, 2013 09:51 PM

With the filing of the complaints for plunder, graft, bribery and malversation against 38 persons, including three senators and five former congressmen, before the Office of the Ombudsman (Omb), the pork barrel scandal has moved from fact-finding to preliminary investigation (PI).

Steps in criminal justice. The case began with fact-finding by the National Bureau of Investigation when the whistle-blowers “spilled the beans.” The NBI secured their affidavits and documentary evidence (bank records, vouchers, receipts, etc.), and turned them over to Justice Secretary Leila de Lima, who—with the help of her staff—evaluated and later submitted them to the Omb for PI.

To clarify, a “complaint” is filed against the “respondents” for PI in the Omb. After “probable cause” is determined to exist, an “information” is lodged in the Sandiganbayan by the Omb against the “accused” (they are no longer called respondents). Normally, prosecutors of the Department of Justice conduct the PI, but when public officers are respondents, the Omb as a rule conducts it.

Otherwise stated, the criminal justice process involving public officials starts with fact-finding (essentially a police job), proceeds to PI (a quasijudicial step) in the Omb, and then to trial (a judicial process) in the Sandiganbayan, with appeal to the Supreme Court.

When no public official is involved, PI as a rule is conducted by DOJ prosecutors; the information is filed in the trial courts, with appeal to the Court of Appeals and to the Supreme Court.

PI, according to the Rules of Court, “is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.”

PI’s purpose is to determine whether “probable cause” exists to indict respondents, have them arrested and hold them for judicial trial. When the crime charged is capital in nature (like plunder)—i.e., punishable by life imprisonment—the accused are detained pending trial.

The PI will be finished in “much less” than a year, vowed Ombudsman Conchita Carpio Morales. Given the voluminous records, the numerous parties and the labyrinths of plunder, this period is indeed most welcome.

State witness. It is the duty of prosecutors to indict all those who participated in the crime, and to spare the innocent. However, when a crime cannot be proven, or the conviction of the principal perpetrators cannot be secured, except with the testimony of some co-perpetrators, the prosecutors—subject to certain conditions—may exclude the co-perpetrators from prosecution and use them as state witnesses.

The whistle-blowers in this case wittingly or unwittingly participated in the pork barrel scam and may have benefited from it, though in miniscule sums. However, Secretary De Lima turned them into state witnesses and granted them the benefits of the Witness Protection Program of Republic Act No. 6981 because, among others, they “do not appear to be the most guilty” and their testimony is absolutely necessary to prove the crime. In fact, they were the ones who exposed the scam.

The Omb, under another law (RA 6770), is also authorized to grant immunity to co-perpetrators and make them state witnesses. A third law, Presidential Decree No. 749, gives exemption from prosecution without any express requirement that the witnesses should “not appear to be the most guilty.”

A fourth law, Executive Order No. 14-A issued by President Cory Aquino, empowers the Presidential Commission on Good Government to grant immunity to whistle-blowers in ill-gotten-wealth cases. This law is unique; it applies in the recovery of “civil liability,” not only in the prosecution of penal or tax laws.

A fifth law, the Rules of Court, may be availed of when the information has been filed in court. Here, the DOJ or the Omb can no longer grant immunity on its own; the court’s approval will be needed to allow an accused to testify as a state witness and to acquit him as a consequence.

Guts and vigilance. With these laws in mind, the big question is: Should Janet Lim-Napoles be turned into a state witness? The answer depends on whether the prosecutors have enough evidence to convict the principals. True, the NBI hauled a “truckload” of evidence. But witnesses will have to identify, authenticate and make sense of these documents.

Perhaps, the better way is to prosecute her and if the evidence so requires, to charge her in court, along with the other respondents. Anyway, should it become absolutely necessary, her discharge may be made during the trial, with the Sandiganbayan’s approval. (Note: She is now detained after having been charged in the Makati Regional Trial Court with illegal detention, a capital offense that is less complicated than plunder.)

Proving guilt beyond reasonable doubt during the judicial trial is not easy. In fact, it is difficult, tedious and energy-sapping, given the requirements of due process, the complicated nature of plunder, the numerous respondents, and their gilded lawyers. Indeed, it may take years—perhaps beyond the term of President Aquino—before a final judgment can be expected.

Note that the plunder trial of former President Joseph Estrada (and he was alone) took seven years in the Sandiganbayan. Guts, passion and perseverance are needed to move this case to justice. Public vigilance is the price for upholding the rule of law in our democracy.

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