With the filing of plunder and graft (violation of Sec. 3-e of the Anti-Graft Law) information against three senators, Janet Lim Napoles and several others by the Office of the Ombudsman (OOO) for their alleged complicity in the pork barrel scam, the Sandiganbayan (SBN) will now be the focus of public scrutiny.
Interlocutory orders. Before conducting the trial proper, the SBN will have to resolve several preliminary issues via “interlocutory” orders. The first was made two days ago when the three cases (one for each senator and their co-accused) were raffled to the SBN divisions.
The First Division (Justices Efren dela Cruz, chair, Rodolfo Ponferrada, Rafael Lagos) got the Bong Revilla case; the Third Division (PJ Amparo Tang, chair, Justices Alex Quiroz, Samuel Martires) got the Juan Ponce Enrile case and the Fifth Division (Justices Roland Jurado, chair, Alexander Gesmundo, Alex Quiroz) got the Jinggoy Estrada case. The Fifth Division has a vacancy which is now temporarily occupied by Quiroz, concurrent with his regular slot in the Third. A new appointee will fill up this vacancy.
The second issue involves “probable cause.” After completing the preliminary investigation, the OOO determined “the existence of probable cause,” i.e., “a well-founded belief that the crimes (plunder and graft) have been committed, and that the accused are probably guilty thereof.”
Nonetheless, the SBN is also required to determine “probable cause,” pursuant to a specific Charter provision that “no warrant of arrest shall issue except upon probable cause to be determined personally by the judge…”
This double determination of probable cause, first by the prosecutor (to file the charges in court) and second by the judge (to issue the warrants of arrest), is mandated by the Charter to enable the judiciary to check abuses of prosecutors who indiscriminately file criminal charges.
To stress, the Constitution requires the judge to determine “personally” the existence of probable cause; thus, the SBN justices cannot rely on the say-so of the prosecutors. They have to peruse “personally” the information (or charge sheet), supporting affidavits and other evidence. This scrutiny may take several days.
Right to bail. If the SBN does not find probable cause, it may dismiss the charges outright, or order the OOO to amend the information, or to submit further evidence to justify the arrest of the accused. If, on the other hand, it finds probable cause, it will issue the warrants of arrest. This determination will be done for each case and for each accused.
A word of clarification. In all criminal prosecutions, the accused are entitled to bail as a matter of right before conviction, except those charged with offenses punishable with reclusion perpetua or life imprisonment “when the evidence of guilt is strong.”
Since plunder is punishable with reclusion perpetua, the accused will be arrested and detained indefinitely once the SBN finds probable cause. Then, the SBN will conduct hearings in which the prosecution must prove that the evidence of guilt is strong. If the prosecution fails in this task, the SBN will grant bail to the accused.
Detention pending trial is not deemed a penalty, but only a measure to prevent the flight of the accused who face the risk of life imprisonment.
Place of detention. The battle for bail could take years. Which brings us to an even more urgent issue: where to detain the accused pending trial.
Once issued, the warrants of arrest will be served by the SBN sheriff who will probably secure the aid of the Philippine National Police (PNP) or the National Bureau of Investigation (NBI). After being arrested (or after surrendering), the accused will be brought to the PNP or NBI office where they will be photographed, fingerprinted and temporarily confined.
After a “return” of the warrants is submitted by the arresting officers, the SBN Division concerned will issue an interlocutory order identifying the place of detention.
Normally, the accused are confined in the city or provincial jails. But celebrities and other VIPs fight for confinement in the more comfortable detention facilities of the NBI or the PNP. Some may even seek house or hospital arrest. This is another issue to be decided by the SBN.
The accused will probably wage or defend many more legal battles, like the filing of motions to quash due to defects in the information, to postpone, to secure medical treatment, etc., or to oppose the prosecution’s possible motion to suspend them from public office.
In fact, I will not be surprised if some accused, like Napoles or Dennis Cunanan, will later ask the SBN to be “discharged [as] accused to be state witness” under Sec. 17, Rule 119 of the Rules of Court.
They failed to secure this benefit from the OOO. But they can still avail themselves of it during the trial, provided they satisfy the SBN that: “(a) there is absolute necessity for [their] testimony… (b) there is no other direct evidence available for the proper prosecution of the offense committed… (c) the testimony of the accused can be substantially corroborated in its material points… (d) said accused [do] not appear to be the most guilty… and (e) … [have] not at any time been convicted of any offense involving moral turpitude.”
In sum, expect many more twists and turns. This is just the beginning of a long legal saga where the spotlight will be focused on the SBN’s competence, integrity, probity and independence.
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