September 2007
The Estrada Plunder Trial

Guilty! But special concessions for accused show flawed system

IT MAY take some time before the debates end in reaction to the much anticipated landmark ruling on the first criminal trial involving a former President of the Republic. On Wednesday, ousted president Joseph Ejercito Estrada was found guilty of plunder, but was acquitted on the perjury charge. His co-accused, son Jose ‘Jinggoy’ and lawyer Edward S. Serapio were also acquitted of plunder.

FORMER President Joseph ‘Erap’ Estrada is found guilty of plunder but is acquitted of the charge of perjury. [PCIJ file photo]

Beyond the verdict, however, thought should be given on how the trial was handled by the Sandiganbayan, the special court that has jurisdiction over criminal and civil cases involving graft and other offenses committed by public officials and employees.

Court observers agree that while the court tried very hard to ensure fairness throughout the proceedings, it became lenient to former President Estrada — in many instances to a fault. In fact, Estrada is now headed back to his Tanay residence, where he has been staying for the last three years, instead of Muntinlupa, where he is supposed to go after being convicted.

The Estrada case thus puts in the spotlight once again how the justice system can become so helpless in the face of a powerful accused. Indeed, the proceedings that were highly politicized became mournfully drawn out, clogged up as it was in part with numerous court-granted perks for Estrada that would make ordinary inmates weep.

Veteran criminal lawyer Mario Ongkiko says, though, that all the special considerations, even for a former president, set a bad precedent in the justice system. “Nagkaroon ng special treatment,” he says. “Now you can expect other accused of prominent stature to ask for some privileges. It’s tailoring the penal system to suit the needs of the accused.”

Still, in a justice system where cases sleep for decades, a high-profile case finished in six years — as the Estrada case was — is regarded as a feat. Even the prosecution panel, which tried to ward off every attempt of the Estrada camp to delay the case, says finishing the trial in six years is already an accomplishment in the Philippine setting.

“If you will consider the personalities involved — the former President, an incumbent senator — this could (have gone) on for many years,” says Ombudsman Special Prosecutor Dennis Villa-Ignacio, head of the prosecution panel. “Estrada is an acknowledged opposition leader, very influential, maraming (lots of) resources.”

He adds, “If you compare it with the Marcos and Romualdez cases and many other cases that after 20 years there is still no result, we achieved something — that a case involving a president can be terminated in a shorter period.”

This is also considering the fact that for more than 80 days — or the equivalent of close to three months — of the six years that the case dragged on, the accused was outside his place of detention.

Which has made people like Ongkiko worry. “All persons should be treated equal, all prisoners should be treated the same,” he points out. “But the equality clause is violated very openly.”

Court observers believe that the Sandiganbayan’s leniency toward Estrada could have been a court tactic to sugarcoat an anticipated adverse ruling on the accused. “At the end of the day, Erap would (then) have no right to say that the Sandiganbayan persecuted him,” a court observer said.

Ongkiko only goes as far as saying that the Sandiganbayan has the choice to implement the law but has become lenient to Estrada, obviously bowing to some “external influence.” He declines to elaborate, but it is well known that Sandiganbayan justices may be appointed by the President to the Supreme Court.

A litany of concessions

An analysis of data gathered by GMA News Research showed that for at least 36 days, Estrada was seeking surgery, treatment, or a check-up for various ailments including eye cataracts and infection, ailing knees, pneumonia, even an emergency tooth extraction.

He was allowed to go to the United States for a knee replacement surgery in December 2003, although this did not push through because the U.S. Embassy declined to give him a visa. He opted for Hong Kong, spending 20 days there in a hotel, even flying in his barber.

The Sandiganbayan, which created a Special Division just to handle Estrada’s case, also granted the deposed president’s requests to undergo “spiritual healing” in Caloocan.

Estrada got to see his mother Doña Mary many times (the latest being last Sunday) and was present during her May 2 birthday from 2004 up to this year, when she turned 102. He himself had a birthday bash in 2005.

He even had a Lenten break in 2004, and was able to spend Christmas and New Year in his house in Greenhills in 2005 and 2006.

Estrada also did not miss such occasions as the wake of his friend Fernando Poe Jr., the anniversary of religious group El Shaddai, the centennial of his hometown San Juan, and the wedding and oath-taking of his son San Juan Mayor Joseph Victor ‘JV’ Ejercito.

The former president tried as well to ask the court permission for him to visit his mother every weekend, spend All Saints’ Day outside detention, celebrate son Jinggoy’s birthday, and personally file a libel case. But these were denied.

The antigraft court also twice denied his requests for house arrest. In July 2004, however, it reversed these rulings. Estrada has since been detained at his sprawling resort-like villa in Tanay, Rizal — from his previous confinement in Camp Capinpin, also in Tanay; Fort Sto. Domingo in Sta. Rosa, Laguna; Camp Crame and Veterans Memorial Medical Center in Quezon City.

In its previous rulings, the Sandiganbayan said there was no basis in the Constitution or in law to allow Estrada, who is facing a capital offense, to be held under house arrest. But Jose Flaminiano of the defense says it is assumed that the justices of the Special Division studied the motion regarding this. “These motions are what they call discretionary on the part of the court,” he says. “It’s…for the court to decide whether to grant or not.”

Besides, the prosecution never challenged many of the orders of the Sandiganbayan granting his client’s requests, he says. Flaminiano also says that nobody can invoke equal treatment because no other inmate bothered to file motions similar to theirs.

Flaminiano says the fact that the accused was elected by an overwhelming majority of Filipinos accords him a certain advantage. “Having been a president, he is imbued with a peculiar privilege, entitled to some degree of leniency,” he argues. “After all, he will not escape.”

Delays upon delays

Court observers, however, note that it was the defense that was using one delaying tactic after another to further stretch the proceedings, which obviously meant more time for Estrada in detention. “It came to a point when we (didn’t) write the postponements anymore because it was no longer news,” says a reporter, one of only two who were able to cover the trial from start to finish.

Villa-Ignacio himself says that the proceedings could have been finished in three and a half years. “Unfortunately, the defense did everything under the rules to delay the proceedings,” he says.

By the prosecution’s calculations, a year and eight months were wasted on the Estrada camp’s dilatory tactics alone.

But Flaminiano says that there was no “intentional delay” on the part of the defense. The Sandiganbayan did not sanction them for delay, he says.

“Delay is part of the rules of procedure,” he says. “There are rules for postponement. The court never said we intentionally delay cases. The court will not allow that. We will be sanctioned if we delay. But we were not once admonished. The only one who is saying that is (Villa-Ignacio).”

For sure, the Philippine judiciary is not lacking on laws that minimize delay in the processing of cases. The Supreme Court has issued various administrative circulars ordering all courts to adopt the mandatory continuous trial system.

The Revised Rules on Criminal Procedure provides that trial should continue from day to day as far as practicable until terminated. “In no case shall the entire period exceed 180 days from the first day of trial, except as otherwise authorized by the Supreme Court,” say the Rules.

Republic Act 8493 or the Speedy Trial Act of 1998 further underscores this mandate. The Estrada case, however, was being tried in the Sandiganbayan, which is not exactly known for speed. Indeed, while it accounts for a meager portion of the caseload of the judiciary for 2006, the Sandiganbayan takes the longest average time in deciding cases — 6.6 years compared to the 1.43 years for the Supreme Court, 1.32 years for the Court of Appeals, and 2.6 years for the Court of Tax Appeals.

Still, the Sandiganbayan tried to quicken its pace especially for the Estrada case. Originally, it conducted trial hearings twice a week, from nine a.m. to 12 noon. In February 2002, the Special Division issued a resolution modifying the six-hour-a-week schedule to thrice a week: Mondays, Wednesdays, and Fridays, also from nine a.m. to 12 noon.

But this was never implemented after the former president and his co-accused, son Jinggoy, dismissed their lawyers. The prosecution, in a bid to hasten the trial, asked the anti-graft court to carry out the resolution. The Special Division denied the motion and the subsequent motion for reconsideration, prompting the prosecution to elevate the issue to the Supreme Court.

In a resolution issued in October 2004, the High Tribunal dismissed the petition for lack of merit.

Both prosecution and defense in the Estrada case would elevate many other incidents to the Supreme Court. There was also an instance when defense counsel Rene Saguisag asked for the inhibition of Associate Justice Edilberto Sandoval for allegedly lobbying for the top post at the Sandiganbayan.

‘Smooth sailing’ for prosecution?

The prosecution actually finished its presentation of witnesses and evidence in one and a half years, from October 2001 to April 2003. It says it presented 76 witnesses and around 2,500 pieces of documentary evidence including a paper trail on the questionable transactions.

It got two Sandiganbayan rulings in its favor. On March 17, 2004, the Special Division denied Estrada’s request to waive his right to present evidence. The defense filed a motion for leave to file demurrer to evidence, claiming that the prosecution has no evidence to pin down their client. On October 4, 2005, the Sandiganbayan junked Estrada’s petition for bail, in effect acknowledging that the evidence of the prosecution is strong.

“It was smooth-sailing,” says one of the two reporters who covered the trial from start to finish, referring to the way the prosecution presented its case. It helped that many of the prosecution witnesses were already presented during the aborted impeachment trial of Estrada.

The reporter says that at the Sandiganbayan, prosecution witnesses were presented according to the accusations in the plunder offense — jueteng payoffs, misappropriation of tobacco excise tax, commission from the sale of Belle Corp. shares, and the Jose Velarde account.

“We…never asked for a single postponement,” stresses Villa-Ignacio. “We (were) always ready for any three to four witnesses.”

But midway into the presentation, in February 2002, Estrada dismissed his lawyers, delaying the proceedings by around two months. Later that same year, another delay was blamed on the defense. Villa-Ignacio accused defense lawyers of dawdling on the cross-examination of the prosecution witness preceding star witness Clarissa Ocampo. As a result, Ocampo, who arrived in court amid a very tight security on November 11, 2002, was made to wait until the next hearing day to take the stand.

The defense’s turn

When it was the defense’s turn, Estrada hired a new lawyer in May 2003. But Ateneo law professor Alan Paguia further delayed the proceedings. His first act: a motion to dismiss the charges on the grounds that the Sandiganbayan has no jurisdiction on the case. Six months later, he was indefinitely suspended for attacking the Supreme Court justices’ decision legitimizing Gloria Macapagal Arroyo’s assumption of the presidency in 2001. (Paguia later figured in the Hello Garci controversy, releasing tapes containing the supposed conversation between President Arroyo and then Comelec Commissioner Virgilio Garcillano.)

The defense also filed an impeachment complaint against eight Supreme Court justices led by then Chief Justice Hilario Davide Jr. for allegedly conspiring to unseat Estrada.

Estrada mellowed down, acknowledging the authority and jurisdiction of the Sandiganbayan, in December 2003, after the Special Division allowed him to travel to the United States to undergo knee replacement surgery.

Villa-Ignacio says the defense filed more than a hundred of motions in the last six years. “During the time of (retired) Justice (Anacleto) Badoy they filed motions every other day,” he says. “It’s part of their strategy to wear out the justices. And it looks like they succeeded because Badoy eventually took a leave.”

The defense finally started its presentation only sometime in September 2004. It wrapped up on August 30, 2006, or after two years.

At one point, the Special Division had to reset the hearings several times because defense lawyers were having a hard time contacting witnesses. Defense lawyers claimed they were also having difficulty appearing in the twice-a-week court dates because of the other cases they were handling as private lawyers.

A reporter recalls that one time a justice asked defense counsel Rene Saguisag, “Are you ready with your witness?” In return, Saguisag addressed the crowd with, “Is there anyone here who responded to the subpoena?”

“I remember Villa-Ignacio saying sa susunod pati magtataho tatawagin nila (next time they’ll call in the soybean curd vendor),” says the reporter.

But Flaminiano says, “We have few resources compared to the prosecution panel that avails of government funds. They can call any government prosecutor while we are undermanned.”

Estrada, though, was being defended by at least eight big-time law firms headed by a former Chief Justice, two other justices, a former University of the Philippines law dean, and other legal luminaries.

Ongkiko, meanwhile, says the slow proceedings could be attributed to the flaws of the Speedy Trial Act. “It’s more of not followed,” he explains. “Of course, the courts have many cases and sometimes it’s the fault of the accused. But if you will read the law, there are many periods of delay excluded in computing the trial time.”

Section 10 of the law excludes delay from other proceedings concerning the accused including an examination on his/her mental competency or physical incapacity; trials with respect to his/her other charges; interlocutory appeals; orders of inhibition, change of venue or transfer to other courts; unavailability of the accused or an essential witness, among others. These are supposed to help ensure that the rights of the accused are also adequately protected.

But Ongkiko argues, that law is “too difficult to implement.” He says, “They should simplify it. Like making it strictly 180-day trial(s) — no more, no less.”

A question of defense witnesses

Court observers, however, say that the dilly-dallying of the Estrada camp was but an indication of a bigger problem: a less-than-solid defense. This, they say, could be gleaned from the kind of witnesses presented by the defense.

Puro character witnesses,” comments one reporter, referring to defense witnesses whose testimonies either discredited the prosecution star witness, former Ilocos Sur Governor Luis ‘Chavit’ Singson, or extolled Estrada.

The defense also fielded Fr. James Reuter to present before the justices the “other side” of Estrada before they decided on a case in which the maximum punishment is death. Reuter testified that Estrada patched things up with the late Manila Archbishop Jaime Cardinal Sin two weeks before he died.

Former Chief Justice Andres Narvasa also testified that Estrada was a mere “victim of political persecution” and that the Arroyo administration offered to waive the charges in exchange for his freedom.

Defense witnesses and opposition senators Edgardo Angara and Aquilino Pimentel Jr., as well as then senator Alfredo Lim, also gave testimonies. “But they have nothing to do with the plunder case,” says a journalist who reported on the trial. “They stated that Erap is a good friend.”

To Villa-Ignacio, the defense was just “killing time” most of the time. “They were presenting witnesses irrelevant to the case,” he says, referring to about seven newspaper reporters who were called to testify on the circumstances of the articles they had written.

“I advised the male reporters to wear their best clothes and the women to go to the beauty parlor first before going to the courtroom because they might be asked by the defense to testify,” recalls Villa-Ignacio.

A seasoned court reporter, who was among the journalists called to testify, also says, “You know the value of a journalist’s testimony. It’s hearsay; it’s not used as evidence in court.”

The defense presented a total of 80 witnesses. According to Flamianiano, the prosecution did not even present a single gambling lord to prove that his client protected gambling or anyone of the alleged depositors in the Jose Velarde account. Prosecution star witness Clarissa Ocampo may have seen Estrada sign as Jose Velarde but did not say that he received money, he adds.

Says Flaminiano: “The prosecution carries the burden of proving reasonable doubt from start to finish.”

And as it has turned out, the Sandiganbayan justices apparently thought that at least when it came to the plunder charge against the ex-president, the prosecution did that job quite well.