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.
Issues:
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”.
