PLUNDER: NAPOLES AS A STATE WITNESS?

“Walang Corrupt, Walang Mahirap!”   A catchy slogan that implies two campaigns:  one, Battle vs. Corruption; and two, Poverty Alleviation.   A victory for the former means more resources would be available to uplift the flight of the poor.

The Pork Barrel Scam deeply targets the very center of PNoy’s slogan and correspondingly the two campaigns.  First, it is corruption involving high public officials entrusted with public funds.  Second, it deprived the people of substantial resources for projects meant to benefit them.  

PLUNDER

The crime allegedly committed is Plunder whereby certain Senators and Congressmen who, by themselves or their families, relatives by affinity or consanguinity, business associates, subordinates or other persons, amass, accumulate or acquire ill-gotten wealth through a combination or series of criminal acts.   This could be “By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks from any person or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned” or any other act enumerated in the Plunder law.

Under the pork barrel system, each lawmaker is allotted some funds annually (P200M per Senator and P70M per Congressman) to be released to and spent by his chosen beneficiaries.  The discretion and judgment belongs to the lawmaker.  The allegation is that the beneficiaries were chosen based on the percentage of commission or kickbacks that the lawmaker receives directly or indirectly.  

In the early days, the kickbacks supposedly amounted to 20% of either P200M (Senator) or P70M (Congressman).  The recent expose as detailed by whistleblowers now alleges kickbacks ranging from 50%-70% going to the lawmaker concerned.   If proven as alleged, based on the amounts misappropriated, and series of acts committed, it would really constitute the crime of Plunder.

The crime is punishable by reclusion perpetua (life imprisonment), which makes it non-bailable.   So, once the lawmaker is charged, he is detained and in fact, under the law (R.A. 7080), he is also suspended from office.  

The law also provides that “Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense.”

This is why Janet Napoles and other private parties including whistleblowers, front men and fake NGOs/entities who participated in the commission of the plundering acts may also be criminally charged.

Napoles is currently under government custody initially for allegedly committing the crime of illegal detention.  But unlike others similarly charged, she certainly is getting full security and protection from the Philippine government.  This is primarily because, as the government contends, she is key to determining the whole truth on the Pork Barrel Scam.  She possesses vital information – personal direct, documentary, circumstantial as well as corroborating evidence to support various cases of Plunder and/or violations of the Anti-Graft and Corrupt Practices Act.

NAPOLES A STATE WITNESS?

There have been reports on whether Janet Napoles could be made a State Witness for the prosecution.  Some brilliant lawyers who also happen to be Senators have weighed in on the matter.   According to reports, Senate President Frank Drilon thinks that Napoles may not qualify because she is “not the least guilty.”  Senator and elected ICC Judge Miriam Santiago claims that Napoles many not qualify because she is the “most guilty”.  Senator Koko Pimentel expresses a similar view.  Ombudsman Conchita Carpio Morales who will decide and propose it to the Sandiganbayan is still understandably silent and undecided pending knowledge of what Napoles could contribute to a successful prosecution.

My barber asked for my take.  Could Napoles be made a State Witness?

I told my barber that my preference is for Napoles not to be made a State Witness if it could be helped – meaning that the Ombudsman is prudentially certain that, even without Napoles’ cooperation, she would be able to successfully prosecute and convict all the public officials and private parties who allegedly committed Plunder.  

I further said that Napoles’ acts, as a shrewd businesswoman who has been taking advantage of the Pork Barrel system and the corrupt minds of the legislators, deserves to be punished for her criminal acts.

But I am not averse to making Napoles as a State Witness.  This is especially true if it is determined that her being one would guarantee the conviction of certain arrogant public officials who have consistently abused their power and exercised that “Wang Wang” mentality and culture of impunity to go with culture of corruption.

May Napoles qualify as a State Witness?  I contend that if Ombudsman Morales chooses to do it, Napoles could be one.

First of all, she is not as “Big” a Fish as any of the Senators, Congressmen, and other public officials from implementing agencies who could be prosecuted and convicted with the help of the testimonial, documentary, and other relevant evidence that she will provide.  State Witnesses are used precisely to go after the “Big Fish”.

Secondly, Napoles does not appear to be the “most guilty” as envisioned by the anti-graft, anti-corruption, and plunder law. The law is primarily directed to prosecute corrupt public officers and others who participate in the commission of the crime by the said public officers.

A Senator or a Congressman who is suspected of Plunder is a public officer entrusted by the electorate with the responsibility of safeguarding and protecting public funds.  He is empowered under the Pork Barrel system to appropriate funds to satisfy some identified needs of his constituency.  Misappropriating such funds for self-aggrandizement at the expense of a trusting electorate numbering millions is an offense of the highest order punishable by life imprisonment.

The principal power of discretion and judgment is with the Senator or Congressman. Correspondingly, the ultimate responsibility is with him.  In the crime of Plunder, he is the principal suspect with private parties like Napoles as willing participants and beneficiaries.  

Napoles could not have been the “most guilty”.  While she was an effective and efficient executor of the legislator’s greedy wish to misappropriate public funds, she was not indispensable.  As cited by COA and as reported by GMA Research News, she was not the only person who was used by the legislators to implement such a scheme.   There were others involving more lawmakers, fake NGOs, and probably more money.  It is just that her operation was the first to be exposed because of whistleblowers that included a relative who accused her of serious illegal detention.  

COA, DOJ, BIR, SEC, AMLC and Ombudsman are not done.  Expect many more patriotic whistleblowers to come out.  More corrupt public officers and participating offenders will still surface.

NAPOLES GO SCOT-FREE?

Will Napoles go scot-free if made a State Witness?  Not necessarily.  She will be discharged from the information or complaint involving Plunder.  But she will remain charged for serious illegal detention.  She could also be charged for tax evasion and probably more as the probe and investigation continues.

Every Filipino always fights for the right to life, liberty, and the pursuit of happiness. Napoles is no exception.  She is happy she is alive and being secured to stay alive. Liberty is currently out of the question.  Happiness is still worth pursuing if not for herself, at least for her daughter who is living life to the fullest in luxurious style.

For the allegedly plundering Senators, Congressmen and other public officers, Napoles’ turning State Witness could hasten the filing of Plunder charges against them with the following legal effects:

1. They will be arrested and detained without bail as the trial proceeds; and
2. They will also be suspended from office.

Upon final conviction,

1. The penalty shall be life imprisonment;
2. Any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stock derived from the deposit or investment thereof forfeited in favor of the State; and
3. All retirement or gratuity benefits will be lost.