This means the country's biggest corruption case in recent history will outlast the presidency of Benigno Aquino III and even go beyond the term of his successor.
Two lawyers who helped build up and prosecute the first plunder case that led to the conviction of former President Estrada said that at some point the Department of Justice will have to stop producing piecemeal evidence on the pork barrel scam and rely instead on the strength of its own case against the principal respondents. The lawyers asked not to be identified for propriety.
“The question is: When will they stop presenting evidence for the preliminary investigation of the case? Due process requires that respondents be given the chance to rebut the allegations. If you do not give them the chance, that is a violation of due process,” one of the lawyers said.
“The respondents will have to be given enough time to reply to the fresh allegations. That could take up more time before the Ombudsman issues its resolution,” the second lawyer observed.
The lawyers issued the observation amid reports that more participants in the pork barrel scheme, following in the footsteps of witness Ruby Chan Tuason, are set to spill the beans on their principals. The latest to surface is Technology Resource Center chief Dennis Cunanan who has been admitted as a “provisional witness” by the Department of Justice. He remains on indefinite leave. (READ: Senators' calls caused undue panic)
Ombudsman Conchita Carpio Morales earlier said that the resolution of the pork barrel complaints against 3 dozen people, including 3 senators, “is going to take much less time” compared to the initial estimate that the evaluation of the evidence will take about a year to finish.
So far, it has been 5 months since the DOJ filed the plunder complaint before the Ombudsman. (READ: Ombudsman to use full powers in pork probe)
Element of surprise
Apart from prolonging the preliminary investigation, the lawyers also pointed out that Justice Secretary Leila De Lima’s apparent "strip-tease strategy" diminishes the element of surprise and only works to the advantage of the accused.
“At this stage of the preliminary investigation, you only have to show prima facie evidence to proceed with the indictment. I think they have already sufficiently established probable case,” one of the lawyers said.
“You do not lay out all your cards on the table during a preliminary investigation. It only requires low quantum of evidence. Other material evidence can be presented during the trial,” the other lawyer remarked.
As it is, Tuason’s testimony already provides sufficient ground to indict senators Jinggoy Estrada and Juan Ponce Enrile and his resigned former chief of staff Jessica Lucila “Gigi” Reyes. Although Senator Antonio Trillanes IV had criticized Tuason's testimony for containing only generalities, the lawyers pointed out that “the specifics can come out during the trial proper."
The justices will also have the chance to assess the demeanor or body language of the witnesses and determine whether they are telling the truth, the lawyers added.
Consolidated or individual cases?
Apart from resolving who to indict, the Ombudsman will also have to decide whether to file a consolidated case or individual cases against each of the accused. Such will have a bearing on the length of the trial, the lawyers said.
In the case of Estrada’s plunder case, it took the prosecution 18 months, or one-and-a-half years to present evidence against the former president for the 4 cases against him. It took Estrada and his son Jinggoy, who was his co-accused, 4-and-a-half years to present their evidence, one of the lawyers recalled.
All in all, despite the continuous hearing imposed by the Sandiganbayan, Estrada’s plunder trial lasted for 6 years.
With the sheer number of possible respondents involved, a consolidated charge sheet may take longer to resolve as each accused will have to present his or her own set of witnesses to rebut the prosecution witnesses. This is what happened in the Estrada plunder case where Jinggoy was allowed to present his own witnesses.
In contrast, the filing of separate cases could result in a shorter trial and therefore a speedier ruling on each individual. “It will be easier for the Court to resolve each case since they do not have to wait for the witnesses or evidence to be presented by the other parties involved,” one of the lawyers said.
One downside in splitting the cases is the inconvenience to the whistleblowers. “They will have to repeat what they said in each court.”
But the pork barrel scam may end up being a consolidated case.
In the complaint filed before the Ombudsman, the DOJ alleged that the respondents acted in unison in the misuse of billions of pesos of pork barrel funds, with Napoles as the alleged mastermind. Justice Secretary Leila de Lima said the lawmakers conspired with Napoles and heads of the implementing agencies in misappropriating the pork barrel funds.
The lawyers however disagree with De Lima's strategy.
In the first place, while they have Napoles as a common denominator, the lawmakers involved appear to have acted independently of each other, they observed.
Secondly, conspiracy to commit a crime is harder to prove. “Conspiracy happens behind closed doors. Thus it is difficult to prove. You have to establish that they have been mutually helping each other. As I see it, the respondents were not aware of what the other is doing,” one of the sources said.
In the Estrada plunder case, the Sandiganbayan special division differentiated between “wheel or circle” conspiracy and the “chain” conspiracy.
The first type involves a single person or group (the hub) dealing individually with two or more persons or group (the spokes). The second type, usually associated with contraband and narcotics, involves "successive communication and cooperation" as would happen in legitimate business operations between a manufacturer and wholesaler, wholesaler and retailer, then retailer and consumer.
In Estrada’s case, the Court said the conspiracy appeared to be of the first type, with Estrada serving as the "hub" and his co-accused the "spokes" sharing the common goal of amassing and acquiring ill-gotten wealth.
Similarly, in the pork barrel case, the hub appears to be Napoles and the other accused as the spokes.
“We were able to pin down Estrada but were not as successful with the other accused,” one of the lawyers admitted. “It was easier to pin down the hub than the spokes.”
Given more than 30 respondents so far and expected legal delays to be employed by the defense, the pork barrel case will take around 10-15 years to be resolved. This is based on conservative estimates. In comparison, Estrada’s plunder case involved lesser respondents – only 8 – and took 6 years.
Former Ombudsman Simeon Marcelo said one of the major reasons that may potentially cause delay is the number of cases being tried in the Sandiganbayan.
He said that a study conducted when he was Ombudsman showed that on average, it takes about 6-10 years before a case is resolved by the anti-graft court. “The Court is already overloaded,” he said. Marcelo was Ombudsman from 2001 to 2005.
During his time, Marcelo lobbied for an increase in the number of justices in the 15-man anti-graft court to lessen the case load. He was unsuccessful.
To illustrate how long the trial would take, Marcelo cited the 2003 corruption case against the late Sarangani Representative Erwin Chiongbian and local officials of the province for the alleged diversion of the lawmaker’s Countrywide Development Fund (later renamed Priority Development Assistance Fund). The case closely resembled the pork barrel scam as it also involved fake organizations.
Consisting of 50 counts and broken down into 5 separate cases, Marcelo said only two cases have been resolved so far by the Sandiganbayan. The latest ruling, which found the officials involved as liable, was handed down by the anti-graft court’s first division only last January. It took almost 11 years for the decision to be handed down from the time the case was filed. – Rappler.com