Sunday, June 22, 2014

Ombudsman Morales vs. Enrile’s Mendoza

My barber, who jokingly calls me a “Legal Tiger”, asked for my take on the ensuing legal battle between Ombudsman Conchita Carpio Morales and Senator Enrile’s defense counsel Estelito Mendoza regarding the Pork Barrel Scam case.


1.             Probable Cause by Executive or Prosecutorial Determination to file Criminal Information;
2.             Probable Cause by Judicial Determination to issue Warrant of Arrest; and
3.             Judicial Determination to grant bail due to weakness of evidence proving guilt.
On No. 1 – Executive or Prosecutorial Determination

Philippine Jurisprudence is well settled in defining Probable Cause as “such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper.”

After conducting a preliminary investigation, and cautiously as well as prudentially considering all the facts and circumstances, the Ombudsman filed a Criminal Information indicting Senator Enrile, among others, with PLUNDER.  In short, Ombudsman Morales found that the facts are sufficient to engender a well-founded belief that a crime has been committed and that Enrile is probably guilty thereof.

Estelito Mendoza, who was a Justice Secretary when Marcos was a dictator and when Enrile was Marcos’ Defense Secretary and Martial Law Administrator, could not counter this one.

On No 2 – Judicial Determination of Probable Cause

Philippine Jurisprudence also points to the view that Courts of Law such as the Sandiganbayan are precluded from disturbing the findings of public prosecutors such as the Ombudsman and the Department of Justice (DOJ) on the existence or nonexistence of probable cause for filing criminal information, unless such findings are tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction.

The Ombudsman, in the performance of her duties, carefully studied and reviewed the findings of the National Bureau of Investigation (NBI), the DOJ, the sworn statements of the witnesses including whistleblowers who had personal and direct knowledge of the surrounding facts and scheme, the supporting documents, electronic records, business records, and other supporting evidence, prior to coming up with her own findings and conclusion.

The Ombudsman’s move is definitely NOT tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction.  I do not see how the Sandiganbayan could stop the issuance of the Warrant of Arrest accordingly.

I suspect that Enrile and Mendoza expect the issuance of the warrant. That is why they are focusing on being able to obtain bail.

On No. 3 – Judicial Determination to Grant Bail

One of the country’s best legal minds, Estelito Mendoza chose a better battlefield – the right to obtain bail questioning the assertion that evidence of guilt is strong.  The basis is Article III, section 13 of the 1987 Constitution which provides:

“All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”

In Mendoza’s view, “Enrile’s role is merely to recommend the projects to be funded under the PDAF appropriation. It is the Executive Department, through various implementing agencies, together with their partner-organizations, that should be held accountable for the PDAF’s use, and the implementation of projects funded by the PDAF, including the liquidation of the PDAF used for the projects,”

“The evidence shows that Enrile was not entrusted with any PDAF allocation, nor tasked to handle the PDAF, or to participate in the implementation of any government project funded by it,” he added.
The paper trail supported by documentary evidence, those who were direct participants and witnesses to the scheme including the whistleblowers, and other findings contradict Mendoza’s view.
The Supreme Court itself took cognizance of the lawmakers’ role in the Pork Barrel process in its decision declaring its unconstitutionality. It said,
In view of the constitutional violations discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which authorized legislators—whether individually or collectively organized into committees---to intervene, assume or participate in any of the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which conferred personal, lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine; (d) all informal practices of similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction.
There was never any doubt about the significant role of legislators like Senator Enrile in the Pork Barrel Scheme. It could not have happened without their knowledge and consent. In fact, it occurred several times in so many years!
Legal Eagle Mendoza also claims that the evidence presented by the prosecution is Hearsay – hence inadmissible referring to Ben Luy’s business ledger and computer files. He “stressed that a prime facie case rests on the prosecution's presenting evidence that will withstand the test of admissibility.”
Section 43, Rule 130 – Exceptions to Hearsay Rule, Revised Rules on Evidence, Rules of Court; Section 1, Rule 8 – Business Records as Exception to the Hearsay Rule, Rules on Electronic Evidence; and Section 1, Rule 9 – Method of Proof, may enlighten us.
Rule 130 – Section 43. Entries in the course of business. — Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.

Rule 8 – Section 1. Inapplicability of the hearsay rule. A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or å person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule or hearsay evidence. 

Rule 9 – Section 1. Affidavit of evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. 

The business records, ledger, accounting books, entries, and computer/electronic files administered, maintained, and stored in the regular course of business by Ben Luy and others in their capacity as Finance Officer and employees are admissible according to the above-mentioned rules.  In fact, they “may be received as prima facie evidence.”

The criminal information filed against Senator Enrile cited “the sworn statements of Luy and his co-whistleblowers Marina Sula and Merlina Suñas who detailed the sequence of events, the 2007 – 2009 Commission on Audit (COA) Report documenting the results of the special audit undertaken on PDAF disbursements, and the reports on the field verification which secured sworn statements of local government officials and the purported beneficiaries which turned out to be non-existent, which pieces of evidence remained uncontroverted by mere denials or dovetailed with the affidavits of some respondents.”
Relevance, Personal Knowledge, and Not Subject to Rule of Exclusion – the Ombudsman’s evidence certainly complies with., adheres to, and definitely can withstand the “test of admissibility”.

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