Ombudsman to decide on PDAF cases shortly

Why is the Office of the Ombudsman (OOO) taking so long to act on the PDAF (Priority Development Assistance Fund) scam? Six months ago, the Department of Justice (DOJ) filed its complaint for plunder, graft, bribery and malversation and unloaded its “truckload of evidence” against 38 respondents, including three senators. Yet up to now, the OOO has not indicted any of them in the Sandiganbayan. Why? many impatient readers ask.

Due process and fair play. Notably, the Supreme Court en banc in Belgica vs Ochoa (Nov. 19, 2013) unanimously banished the PDAF and directed the prosecution of the scammers “within the bounds of reasonable dispatch.” A few days ago, the Court’s Third Division did not heed a senator-respondent’s plea for a temporary restraining order to stop the OOO from continuing its investigation.

Thus, nothing stands in the way of resolving the cases immediately, except the requirements of due process and fair play. While speedy investigation and prosecution are the public outcry, the OOO has to respect the respondents’ constitutional rights enshrined in the Bill of Rights. Otherwise, should it falter in such a duty, the cases would be needlessly embroiled in due-process questions.

Indeed, the OOO must make sure the innocent and the guileless are shielded from the harshness of the law while the wily and the shrewd are prevented from hiding their guilt in penumbral side issues.

Having set forth the basic principles and guidelines, let us walk through the various steps to prosecute the PDAF cases “within the bounds of reasonable dispatch.”

Late breakers. After receiving the DOJ complaints, Ombudsman Conchita Carpio Morales immediately formed a 5-person panel to conduct the preliminary investigation. (The DOJ is the complainant here, not the preliminary investigator.) Thereafter, the respondents were asked to submit their counteraffidavits to hear their defenses.

Meanwhile, new twists developed. Some respondents confessed, via affidavits, their participation in the scam, but sought exemption from prosecution as state’s witnesses. Two of them, Ruby Tuason and Dennis Cunanan, applied for and were granted temporarily the benefits of the Witness Protection Program (WPP) by Justice Secretary Leila de Lima in exchange for their promised testimony that would corroborate the evidence given by the original whistle-blowers led by Benhur Luy.

Thereafter, two officials of the National Agribusiness Corp. (Nabcor), Rhodora Mendoza and Vic Cacal, who were also among the 38 original respondents, submitted their affidavits directly to the OOO, without applying for benefits under the WPP. However, they asked to be treated as state’s witnesses and to be exempted from prosecution.

They implicated four senators (including the original three) and 79 representatives who allegedly coursed their PDAF totaling P1.7 billion to questionable nongovernment organizations through the Nabcor.

Of course, these late-breaking affidavits are relevant to the original complaint. But as to whether they are essential to secure the conviction of the principal scammers must be carefully weighed by the OOO, given that once accepted as state’s witnesses, the affiants would be freed of the crime of which they themselves admitted being guilty.

Ombudsman ready. In any event, the counteraffidavits of the respondents have been received by the OOO some weeks ago. Those who did not file counteraffidavits are deemed to have waived their right to do so because the period for filing these had lapsed. Thus, the case is deemed submitted for resolution.

The OOO will now determine who shall be charged in the Sandiganbayan, and with what crime. The original whistle-blowers led by Luy were not included in the DOJ complaint. Thus, they cannot be charged with any crime by the OOO because no preliminary investigation against them had been conducted.

Tuason and Cunanan, though granted by the DOJ with the benefits of the WPP, were nonetheless included as respondents in the DOJ complaint. However, the Witness Protection Law (Sec. 12 of Republic Act No. 6981) behooves prosecutors (in this case, the OOO) “not to include [those given protection under such law] in the criminal complaint or information…”

In contrast, Mendoza and Cacal filed their affidavits directly with the OOO without applying for or being granted the benefits of the WPP. Hence, their exemption from prosecution depends solely on the OOO.

In any event, once the appropriate information (or charge sheet) is filed by the OOO in the Sandiganbayan, any one or all of them may, under the Rules of Court, still be discharged—with the approval of the Sandiganbayan—from the information and become state’s witnesses.

Given all the foregoing, I believe Ombudsman Morales had already studied the cases thoroughly and is poised to issue her resolution shortly, in a matter of days, way ahead of her self-imposed deadline of “less than one year.”

Under the Rules of the OOO, those found criminally liable can still file a motion for reconsideration within five days to show why they should be excluded from the charge. Should the Ombudsman deny their motion for reconsideration, the appropriate information would then be filed in the Sandiganbayan.

If, as prayed for by the DOJ, the charge is for the crime of plunder, the accused would be arrested and detained pending trial because plunder is a capital offense and not bailable when the evidence of guilt is strong. And the trial can take many years.

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