Is Arroyo criminally liable for fertilizer scam?

A lot of flak. That’s what Ombudsman Conchita Carpio Morales reaped for dismissing the graft charges against former president Gloria Macapagal-Arroyo in connection with the P728-million fertilizer fund scam, because “[a]ll in all, complainant’s allegations of respondent’s criminal liability … lack any factual or legal basis.”

Facts and issues. The Inquirer editorial last May 14 (“Where will the buck stop?”) rhetorically asked why the culpability for this much-publicized scam should end only with then Agriculture Secretary Luis Lorenzo and Undersecretary Jocelyn “Joc-Joc” Bolante when they are mere alter egos of the former president. Frankly, I myself was surprised. So, I secured a copy of and reviewed the dismissal resolution of the Office of the Ombudsman (OOO).

The facts narrated in the resolution were sparse. As far as I can make out, Lorenzo authorized Bolante to distribute the P728-million fertilizer fund, which was earlier “released by virtue of … the Agriculture and Fisheries Modernization Act (AFMA) of 1997.”

The fund was allegedly misspent because it was given to many local government units and legislative districts which were “not farm zones [and,] thus, should have been disqualified to receive allotments. Despite such fact, however, Arroyo did nothing to discipline or rectify the irregularities committed by Lorenzo and Bolante.” It added that “the P728 million fertilizer fund was distributed and received by 179 proponents, of which 121 were members of the political party LAKAS-CMD headed by [Arroyo] herself.”

Three issues were raised against GMA:

(1) whether she violated Sec. 3 (c) of the Anti-Graft Law “by giving unwarranted benefits, advantage or preference to her political allies…,” (2) whether she is “criminally liable for her alleged failure to reprobate the acts of Lorenzo and Bolante under the doctrine of command responsibility,” and (3) whether she “may be held criminally liable under the doctrine of qualified political agency.”

Ombudsman’s ruling. On the first issue, the OOO held that “[c]omplainant failed to present any documentary or testimonial evidence proving [Arroyo’s] alleged knowledge of, or participation in, the scheme perpetrated by Lorenzo and Bolante. All of the documents submitted by complainant were prepared and signed by other persons, and not by respondent.”( bold types in original)

On the second issue, the OOO, citing Rubrico vs Arroyo (Feb. 18, 2010), ruled that “no Philippine law provides for criminal liability under the doctrine of command responsibility.”

On the third issue, the OOO said, citing Reyes vs Rural Bank of San Miguel (Feb. 27, 2004), that the doctrine of qualified political agency cannot be used against GMA because, again, complainant did not provide “proof that respondent actually authorized the acts complained of…”

My assessment. The OOO’s resolution, prepared by a three-person panel chaired by Deputy Ombudsman Gerard A. Mosquera and approved by Ombudsman Morales, is anchored on the utter lack of evidence showing the criminal complicity of GMA.

To charge respondent with a crime, the OOO must find “probable cause,” which, per settled jurisprudence, refers to “the existence of such facts and circumstances as would excite the belief in a reasonable mind that the respondent is guilty of the crime complained of.”

In the present case, the “complainant failed to present any (repeat, any) documentary or testimonial evidence proving [Arroyo’s] alleged knowledge of, or participation in, the scheme perpetrated by Lorenzo and Bolante.” How then can the OOO charge GMA with graft?

Should complainant (or any government agency like the Commission on Audit or the Department of Justice) or anyone else have hard evidence of her participation, they may intervene and submit such proof. Otherwise, the resolution of the OOO will stand.

On the issue of command responsibility, her being the superior of both Lorenzo and Bolante, by itself and nothing else, will not be sufficient proof of GMA’s criminal (repeat, criminal) complicity.

For the same reason, President Ferdinand Marcos was not indicted for, much less convicted of, the murder of Ninoy Aquino for being merely the superior of the soldiers and officers who were charged and found guilty of that offense. There being no hard proof of who the mastermind was, that heinous crime committed in broad daylight in a very public place remains a mystery to this date.

As held by the Supreme Court in Salonga vs Pano (Feb. 18, 1985), the purpose of a preliminary investigation (such as that conducted by the OOO in this case) is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect the state from useless and expensive trials.

That GMA has been publicly maligned for the many controversies that plagued her reign is no reason to deny her the basic rights of every citizen in our country.

True, Morales has dismissed several criminal charges against GMA, including this one. But it is equally true that she had found probable cause and filed informations against her in some other cases, like for plunder in the alleged diversion of Philippine Charity Sweepstakes Office funds, and for graft in the alleged anomalous award of the National Broadband Network project to Zhong Xing Telecommunications Equipment International Investment Limited.

These decisions show her fairness and objectivity in performing her work, ruling for or against GMA as the evidence and law demand in every case.

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