Wednesday, September 25, 2013

Lawsuit or Lusot?

A number of powerful people in the Philippines are getting prepared to deal with a lawsuit already filed against them by the NBI (National Bureau of Investigation) and the DOJ (Department of Justice) before the Ombudsman.

These are men, no longer boys, who can take care of themselves and actually knew what they were doing.  They are also experienced, bright and smart men possessed of substantial and adequate resources to hire brilliant lawyers to give them the best defense that money can buy.  

So, I told my barber and his colleagues at the barbershop that we expect and assume that their lawyers will explore all the avenues allowed by law to defend them.  No need to take pity on them.  Instead, we know that both sides would try their best to present their interpretation of the facts, which hopingly would bring out the whole truth. With it, justice should prevail!


There is one lusot that may be considered as a defense for the lawmakers.  One defense lawyer (de la Cruz) is claiming, “There is no document that links Senator Enrile to plunder. He didn’t sign any document that indicated he was allocating his funds to NGOs.” He says that his Chief of Staff for several years Gigi Reyes was not authorized to do so on Enrile’s behalf.

“Lusot ba?” my barber asked.

Senator Enrile and COS Gigi Reyes (ABS-CBN)
Not necessarily.  The crime is malversation of public funds; bribery, and other graft charges upgraded to plunder because of the aggregate amount involved (more than P171 million) and of the combination or series of criminal acts committed that established a pattern.  

The voluminous evidence (17 boxes - testimonial and documentary) provided by the whistleblowers who claim to have direct knowledge, and gathered by the NBI and the DOJ, seem to prove that the crimes alleged were committed.

The issue is whether the criminal responsibility should stop at the Chief of Staff or subordinate level especially if lawmakers like Enrile will claim ignorance of the criminal conspiracy.

In crimes like plunder or malversation of public funds, there is still presumption of guilt if it could be shown that the accused public officer consented, through abandonment or negligence, or permitted any other person to take such public funds, or property, wholly or partially.  

Senators and Congressmen are granted the power to allocate public funds earmarked precisely for public welfare.  Correspondingly, they also have the responsibility and public duty to safeguard the funds from misappropriation, malversation, and misuse and worse, plunder.

Failure to carry out such public duty is negligence.  In Criminal law, it is omission constituting a guilty act.  Claiming not to have authorized your Chief of Staff or subordinate but knowing or should have known that the prohibited or unauthorized acts were happening not just once but several times and for a number of years will not absolve the lawmaker from possible criminal liability.

Furthermore, under the principle of superior responsibility as recognized under the Rome Statute of the International Criminal Court (ICC) to which the Philippines is a signatory, the superior is equally responsible for the criminal acts of his subordinates provided that 3 elements are present.  First, that there is a defined superior-subordinate relationship.  Second, that the superior knew or should have known about the alleged crime being committed.  Third, that the superior did not prevent or punish the subordinate for committing the illegal acts.

The doctrine with the 3 elements being present is known as "an omission mode of individual criminal liability," Decisions enunciating the doctrine in the international courts apply to both military and civilian cases.

Most Filipinos find it incredible for Enrile not to have authorized his most trusted Chief of Staff Gigi Reyes and loyal subordinate for 25 years.  But assuming but not necessarily admitting that Reyes did not have the authorization from Enrile, the latter could still be liable for not safeguarding public funds through negligence and omission as discussed above.  

There are sufficient instances over the years showing that Gigi Reyes acted for and on behalf of Senator Enrile.  I suspect that her authority were mostly unwritten but readily accepted.  There were probably written authorizations as legally required.  If Reyes’ act was not authorized, it would have been ratified later on or she should have been prohibited from dealing with similar transactions subsequently.  This did not seem to have happened at least during the dates concerned when the crimes were allegedly committed.

It looks like no LUSOT!  LAWSUIT it will be!  PROSECUTE it must be!

To the witnesses, the NBI, the DOJ, the Ombudsman, and the Courts – A TRIBUTE if they EXECUTE!  

Take it from my barber!

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