Better, more authoritative venue

As the Senate Blue Ribbon Committee continues to unravel the numerous dirty deals and obvious attempts of Bolante to extricate himself from the P728 million fertilizer fund scam with untruthful, evasive and deceitful statements, let us not forget that the punitive action in this case still lies in the hands of the Ombudsman. Bolante may be arrested and detained by order of the Senate but that could not take the place of the punishment he deserves if he is found guilty of the crimes he allegedly committed.

Hence it is quite alarming that up to now, the Office of the Ombudsman seems to be dragging its feet in this case. It should have already charged Bolante before the Sandiganbayan upon receiving the initial report of the Senate Committee on Agriculture under Ex- Senator Ramon Magsaysay, Jr. more than two years ago. Pursuant to such report, probable cause to charge him in court has definitely been established. “A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects” (Webb vs. De Leon 247 SCRA 652).

Bolante’s flight to evade prosecution is not an excuse but more of a reason for the Ombudsman to file the charges right away. Running away while his case was under preliminary investigation can be considered as a waiver of his right to be heard in said investigation. To be sure, if the Ombudsman had filed the necessary charges, a warrant for his arrest could have been issued much earlier so that upon his extradition, the current controversy about his arrest and detention by the Senate could have been avoided.

The Ombudsman’s failure to file charges against Bolante while he is away exerting all efforts to avert his return, has only created the prevailing perception that he must really have some strong connections with the “powers that be” and that the Ombudsman is unduly favoring him because of that connection. Moreover by unnecessarily awaiting his return allegedly to afford him due process before filing the case, the Ombudsman may be giving Bolante the ground to invoke the Tatad ruling and ask for the dismissal of the charges subsequently filed against him because of denial of his right to speedy disposition of the case by the inexcusable delay in the preliminary investigation. The possibility of invoking this ground would have been enhanced had Bolante succeeded in further prolonging his indefinite return to the country without the Ombudsman acting on his case.

Actually, such possibility of dismissal remains up to now if the Ombudsman continues to take it own sweet time in filing the case. Upon Bolante’s return it has given Bolante 10 days to file his reply to the charges. Those 10 days and even another extension of 10 days had long lapsed but there seems to be no action yet on the part of the Ombudsman. Awaiting the results of the Senate investigation is not necessary because that is entirely a different proceeding with a different purpose. The criminal cases against Bolante in connection with the fertilizer fund scam can proceed independently of said inquiry. In fact it should have proceeded ahead of this inquiry so that his guilt can be judicially determined. After all only the court has the power to declare him guilty or not guilty.

In a judicial proceeding, Bolante could not display his kind of Senate antics. In court, the prosecution is the first to present and lay down its array of evidence both testimonial and documentary before Bolante is called to testify. Hence Bolante cannot just barely deny his culpability and wash his hands off by pointing fingers left and right like what he is doing now in the Senate.

As it is now turning out, Bolante just used the Senate to initially project the impression that there is really no fertilizer fund scam and if there is such a scam, he is not part of it. In other words the reversal of the court procedure in the Senate inquiry enabled the defense to get the ball at the tip off, score the first points and take the lead. In a propaganda war, this is already an advantage because it enabled Bolante to steal the thunder and create some impact that is being gradually removed in the Senate only now by piece meal gathering and disclosure of evidence exposing the bankruptcy and falsity of his initial claim.

To be sure the Ombudsman may already have all these testimonial and documentary evidences even before the Senate inquiry. Or at least it should have started gathering them when the case was first referred to it. Actually with the existence of such evidences and had the Ombudsman proceeded with the preliminary investigation without awaiting Bolante’s return, the case should have been with the Sandiganbayan by now.

For all intents therefore the ongoing Senate inquiry is practically a preliminary investigation that the Ombudsman should have conducted in the first place. Thus it is one legislative inquiry that can be considered useful and fruitful not necessarily in aid of legislation but as a deterrent to the white wash of the case by Ombudsman.

But the better and ultimate venue is still the court. In a judicial proceeding the current “he said-they said” situation will be subject to the rules of appreciation of evidence. Under said rule, bare denials like that of Bolante cannot prevail over clear, positive and direct evidence pointing to his guilt. His mere denials will have no evidentiary value especially because there are enough documentary and corroborated testimonial evidence disproving his statement and showing that he is not telling the truth.

So the Ombudsman should now act with more dispatch. Its role after all is not to determine the guilt or innocence of Bolante based on available evidence but only to find out whether there are reasonable grounds to hold him for trial. It is the trial court that ultimately decides on Bolante’s guilt or innocence.