Ombudsman on PDAF cases: Long, rough road to justice

Eighth of a Series

TAKING ON corruption is never easy. After two years of investigation by nearly three dozen lawyers of the Office of the Ombudsman reviewing thousands of documents, the corruption cases involving the use of pork-barrel funds against an incredible tally of legislators are far from being concluded. Many of the cases have not even reached trial stage.

The government’s efforts to clean up the pork-barrel mess have thus far produced plunder, graft, and bribery charges against eight legislators—three senators and five members of the House of Representatives—filed before the Sandiganbayan.

The eight are among over 100 legislators who purportedly participated in the misuse and abuse of the pork barrel, otherwise known as Priority Development Assistance Fund (PDAF).

A third complaint that the Department of Justice filed only last August 4 against two senators and seven former and current House members is still undergoing review by the Ombudsman.

“We consider these PDAF cases as [among] the most important cases that we are prosecuting,” Deputy Ombudsman for Luzon Gerard A. Mosquera tells PCIJ.

“In fact,” he adds, “a substantial number of prosecutors are involved [in these cases]. And our most senior prosecutors are directly supervising [them].”

After more than a year in court hearings, however, the Ombudsman has yet to get a conviction on the first eight cases that are now pending at the Sandiganbayan. Comments Mosquera: “Some cases proceed quickly, while others are not as quick.”

Bogus NGOs

The investigation began on March 22, 2013 when the National Bureau of Investigation (NBI) “rescued” Benhur Luy, from a Taguig City condominium owned by his cousin and boss, businesswoman Janet Lim Napoles. Luy would later become a whistleblower exposing massive pork-barrel fraud, pointing to Napoles as the head of a network of bogus nongovernment organizations (NGOs) that siphoned off pork-barrel funds in collusion with legislators.

Four months after Luy’s “rescue,” the Ombudsman created a special team of six graft investigators to conduct a parallel investigation with the NBI. As provided by law, the Ombudsman is allowed to initiate investigations on the alleged illegal acts of public officials and government agencies. It also has the authority to file corruption-related charges and primary jurisdiction over cases heard before the anti-graft court.

Then in August 2013, the Commission on Audit (COA) released its special audit report on PDAF and Various Infrastructure and Local Projects (VILP). The report named 118 legislators who allegedly allotted their pork-barrel funds to a number of questionable NGOs, including those owned by Napoles. The whistleblowers, with Luy at the forefront, would later confirm that fake NGOs were set up to implement “ghost projects” for the legislators’ kickbacks.

35 lawyers, 5,000 docs

Mosquera says the Ombudsman currently has 35 prosecutors exclusively focusing on the eight ongoing cases filed before the anti-graft court and five new PDAF cases. These prosecutors are apart from the scores of lawyers of the Ombudsman’s Field Investigation Office who continue to gather documentary and testimonial evidence against more potential respondents. Mosquera heads the Ombudsman’s prosecution team.

For each of the eight cases, the Ombudsman is presenting some 5,000 documentary exhibits. The number shoots up to about 8,000 when the exhibits’ sub-markings are included. The number of witnesses who testify ranges from 30 to 50 per case.

Mosquera says the Ombudsman has divided the witnesses into three categories: government officials, whistleblowers, and supposed beneficiaries.  The first set includes COA auditors, forensic experts from the NBI, and officials from the Anti-Money Laundering Council (AMLC), Department of Budget and Management (DBM), and Securities and Exchange Commission (SEC), among others. The next set of witnesses is made up of Napoles’s employees turned whistleblowers: Luy, Mary Arleen Baltazar, Marina Sula, and Merlina Suñas. The last one comprises secured sworn statements of purported beneficiaries of the alleged “ghost projects.”

Corruption charges first fell on three senators — Juan Ponce Enrile, Jose ‘Jinggoy’ Ejercito Estrada, and Ramon ‘Bong’ Revilla Jr. —  on June 6, 2014.

The next round of charges fell on five former House members on February 5, 2015: Rep. and now Masbate Gov. Rizalina Seachon-Lanete (ex-representative of the 3rd District of Masbate), Edgar L. Valdez (Association of Philippine Electric Cooperatives or APEC Party-list), Rodolfo G. Plaza (Agusan del Sur), Samuel M. Dangwa (Benguet), and Constantino G. Jaraula (Cagayan de Oro City).

In July 2015, the Ombudsman indicted another set of five ex-House members: Arrel R. Olaño (Davao del Norte 1st District), Rozzano Rufino B. Biazon (Muntinlupa City), Marc Douglas C. Cagas IV (Davao del Sur 1st District), Arthur Y. Pingoy Jr. (South Cotabato 2nd District), and Oriental Mindoro 1st District Rep. Rodolfo G. Valencia (Oriental Mindoro 1st District). This indictment is not yet executory and the five accused may still file their motions for reconsideration.

Crawling still

The cases now pending before the Sandiganbayan, in the meantime, have either slowed to a crawl or have come to a standstill. And much as it wants to move the pace of the cases faster, the Ombudsman can do no more than serve as prosecutor of the cases that are separately pending before Sandiganbayan’s three divisions.

Obviously, each division has handled the conduct of the trial according to each its own style.

Mosquera notes: “Yung different divisions, magkakaiba rin ang pagpapatakbo ng kaso. May mga kaso na mas mabilis, may mga kaso ng PDAF case na hindi ganoon kabilis. May mga differences din even in scheduling, may differences din sa pag-handle ng witnesses and may differences din sa pag-kokontrol ng proceedings. (The divisions have been handling the cases differently. There are cases proceeding at a faster rate, and others, at a slower rate. There are differences in the scheduling of the hearings, in the handling of witnesses, in the control of the proceedings.)”

In fact, when the Ombudsman filed its first case in mid-2014, it had also asked the Supreme Court to create a special division at the anti-graft court that would focus only on the PDAF cases. The high court turned down this request, however.

The current situation has eased the load of the defense panels, but not quite that of the prosecution panel.

Mosquera says the respondents, notably the three accused senators, could afford to hire a battery of the best lawyers at whatever cost — “mga mabibigat, mga malalaking law firms, mga kilala at batikang mga abugado (big and powerful law firms, known and veteran lawyers)” – with each team able to focus on their particular client. Meanwhile, the prosecution has one and only one team for all three cases: the 35 lawyers led by Mosquera.

No level playing field

“There is only one prosecution team for all the cases,” he says. “But on the other side, ang sa defense naman, iba-iba ang mga abugado ng mga akusado. So natural na iba-iba ang pagpapalakad nila ng depensa (But on the other side, the defense has a variety of lawyers representing the accused. Naturally, the way they carry out their defense would be different from each other).”

He can only be thankful that while the “fairly complicated” pork cases have required more than extraordinary attention on the part of the Ombudsman, these have also served as a landmark in how the regulatory and integrity agencies of government could work together to build cases against corruption.

“It’s very encouraging to share and to note,” Mosequera tells PCIJ, “for probably the first time in our history as a country, talagang nagtulong-tulong ang Office of the Ombudsman, Commission on Audit, National Bureau of Investigation, Anti-Money Laundering Council, Securities and Exchange Commission, and even the Civil Service Commission.”

Each of these agencies, he says, provided their own personnel and experts, notably the most senior auditors of COA, the financial investigators of AMLAC, the forensic experts of NBI, among others.

Still, despite such helping hands, adjusting to “whatever the defense puts up or raises in their defense” remains “a big challenge for the prosecution,” says Mosquera.

In one division, the defense has resorted to all sorts of interlocutory motions that have simply slowed down the process. In another, the defense has allowed the presentation of witnesses already. In yet a third, the respondent senator, Juan Ponce Enrile, submitted his motion for bail straight to the Supreme Court; last week, he got his wish to post bail and secure temporary freedom even as he is facing trial for the non-bailable offense of plunder.

Defense not in a rush

What seems confounding to Mosquera and his team is what they say is the defense teams’ continuing tactics to delay the cases. Remarks Mosquera: “Well ‘yun nga ang hindi namin maintindihan, kasi kapag nakakulong yung kliyente mo, natural sa isang abugado na madaliin yung kaso. Hindi namin nakikita ‘yun e kaya medyo pala-isipan din sa amin ‘yun (Well, that’s what we don’t understand, because if your client is under detention, it’s only natural for a lawyer to try to speed up the case. But that’s not what we are seeing, so that has got us wondering.)”

Asked when he thinks the cases would finally get a ruling from the Sandiganbayan, Mosquera says the Ombudsman cannot offer any timelines.

Kami po sa Office of the Ombudsman, siyempre ang hinahabol po namin ay ‘yung conviction (We at the Office of the Ombudsman, of course we are after getting convictions),” he says. ‘Yun ang trabaho naming, eh. Pero hindi po kami siguro makakapagbigay ng timeline, kasi ang pagpapatakbo talaga ng kaso ay nasa mga mahistrado, sa mga justices (That’s our job. But we cannot give timelines because the speed of the cases is in the hands of magistrates, the justices).” At day’s end, it is the justices of the Sandiganbayan alone who could define timelines.

Before the PDAF cases, of course, there was that of ousted President Joseph Estrada, who was haled into the Sandiganbayan by the Ombudsman on plunder and perjury charges. The prosecution was able to secure a conviction against Estrada, but what happened afterward practically took away any sense of success on the part of the prosecutors.

The case had been filed in 2001 but the Sandiganbayan promulgated its ruling only in 2007 or six years later. The court found Estrada guilty of plunder and handed him a life sentence. A few days after the decision was handed down, however, then President Gloria Macapagal Arroyo granted Estrada executive clemency.

Estrada walked to freedom and was even allowed to run for president again in the May 2010 polls, in which he came second to the winner, Benigno S. Aquino III. Estrada is now mayor of the City of Manila, after winning in the local elections of 2013.

A sad portent?

Could the Estrada case – marked as it was by due process locked in interminably long trial, and court rulings being overturned by political accommodation – serve as a portent of things to come for the PDAF cases?

Mosquera says he hopes not. Referring to the slow pace of the Estrada case, he says, “Hindi naman siguro mag-a-apply sa mga PDAF cases kasi kami po sa prosecution, sa Office of the Ombudsman ginagawa naman namin ang lahat ng aming makakaya na talagang pabilisin (It probably won’t apply to the PDAF cases because we at the prosecution, at the Office of the Ombudsman, we are doing everything we can to speed things up).”

The coming of a new president after the May 2016 does not worry the Ombudsman either, he says.

Naniniwala po kami sa katatagan ng ating judiciary at ng institusyon ng Ombudsman (We believe in the integrity of our judiciary and of the institution of the Ombudsman),” Mosquera says. “So regardless of who will become president, regardless of who will be in the next administration, we believe that the prosecution will continue and that the cases will be decided based on the evidence that we will present.”

Through it all, according to Mosquera, all that the Ombudsman’s lawyers must do is work, hope, believe in their evidence, and pray. “Our evidence, whether documentary or testimony, will remain the same regardless of who is in power,” he says. “We are really expecting or praying and hoping na mapabilis ito (that these will be resolved fast).” – PCIJ, August 2015