Will SC free Jinggoy?

Invoking the Supreme Court’s GAD (grave abuse of discretion) duty, detained Sen. Jinggoy Estrada asks for the nullification of the preliminary investigation (PI) conducted by the Office of the Ombudsman (OOO) because of alleged denial of due process. The grant of his little-known petition may void the pending plunder proceedings against him in the Sandiganbayan, free him from detention, or at the very least, remand his case to the OOO for a new PI.

First, a little background. Recall that last year, the National Bureau of Investigation (NBI) and the OMB-Field Investigation Office (OMB-FIO) filed similar complaints in the OOO charging Estrada and 16 other co-respondents, among them Ruby Tuason and Dennis Cunanan, with plunder and graft arising from the Priority Development Assistance Fund (PDAF) scam.

On Nov. 25, 2013 and Dec. 3, 2013, Estrada was served with the complaints of the NBI and the OMB-FIO respectively, together with the affidavits of the complainants’ witnesses. In their defense, Estrada and his co-respondents answered via their respective counter-affidavits.

“Having been given information that affidavits and filings of the other respondents made mention of him,” Estrada filed with the OOO a “Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings, dated 20 March 2014, in order to be apprised of allegations of the other respondents and to be given notice of all the evidence presented to the Office of the Ombudsman incident to the preliminary investigation.”

On March 27, 2014, the OOO denied this request. On the next day, March 28, the OOO promulgated a Joint Resolution finding probable cause to indict Estrada and some of his co-respondents with plunder and graft, resulting in his arrest and detention.

In preparing the charges, the OOO allegedly used against him the counter-affidavits of some of his co-respondents, especially Tuason (who was granted immunity and discharged from the complaint). The nondisclosure of these filings allegedly deprived him of the opportunity to rebut them.

Aggrieved, Estrada filed with the OOO a motion for reconsideration of the OOO’s Joint Resolution finding probable cause. Meanwhile, on May 7, the OOO furnished the detained lawmaker with the counter-affidavits of his co-respondents. On the same day, Estrada filed this petition faulting the OOO with GAD in issuing the March 27 order which denied his request for copies of his co-respondents’ filings.

Laws relied upon. Estrada claims that the OOO violated his constitutional right to due process because, to repeat, he was not given the opportunity to oppose his co-respondents’ allegations, which were relied upon by the OOO to charge him with a capital offense that deprived him of his liberty pending trial.

He also avers that the OOO did not follow its own Rules of Procedure (Sec. 4, Rule II) stating that “the respondent shall have access to the evidence on record.” Further, he asserts that the Rules of Court (Sec. 3, Rule 112) requires “the complaint… (to) be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause.”

In turn, the OOO argues that Estrada was not denied due process because neither the OOO’s Rules of Procedure nor the Rules of Court compel prosecutors to furnish respondents with the counter-affidavits of their co-respondents. All that these rules require is the giving to the respondents of the affidavits and other filings of the complainants; co-respondents are not complainants.

Moreover, the OOO contends that Estrada’s gripe was mooted when he was furnished copies of the counter-affidavits he wanted, even if belatedly, on May 7, 2014.

NBI’s co-complainant, Levito Baligod, adds that while the cited rules grant Estrada the right of access to, and to photocopy at his expense, all the evidence, he failed to exercise such right.

Domino effect. Jurisprudence considers PIs as mere preparations for trial. Thus, the rights of the parties are found in the laws governing PIs, not in the Constitution. To prove their allegations, parties are required to submit affidavits. Trial-type questions and answers are not permitted. Strictly speaking, affidavits are hearsay because the opposite side is not allowed to cross examine the affiants. Too, respondents are not given the affidavits of co-respondents, because they are assumed to be on the same side.

In this case, however, some of his co-respondents’ affidavits contained damaging evidence not disclosed to Estrada, thereby allegedly depriving him of due process. If the Supreme Court favors him, he may, as earlier stated, be freed from detention.

Such favorable decision would cause a domino effect on the two other detained senators, Juan Ponce Enrile and Bong Revilla. It would also cascade to many other pending criminal cases because the conduct of PIs would be modified radically.

On a broader scale, such favorable decision would be a major blow to the “daang matuwid” of President Aquino and would delay the PDAF cases. On the other hand, Estrada would not only win an important legal battle but also gain political ascendancy in his quest for higher office.

Will the Supreme Court flex its GAD duty and favor Jinggoy? Since this case involves the alleged constitutional right of a detained high official, expect the Court to rule soon, within 30 days. Given the borderline issues, expect also a divided court. Abangan!

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