Politics and selective justice

The results of the preliminary investigation by the Office of the Ombudsman (OMB) in the P10 billion pork barrel scam have long been awaited and highly expected. No one, or maybe just a few, anticipated a different outcome especially because of the excessive media coverage given to the anomaly after it was exposed.

Even the probe and the gathering of the evidence conducted by the National Bureau of Investigation (NBI), usually done discreetly and quietly, were unduly publicized. The publicity was further intensified when the Senate Blue Ribbon Committee also joined the picture by conducting its own inquiry which was not really that necessary, and obviously done only for purposes of hugging the limelight.

The undue publicity has undoubtedly given the defense some sort of ammunitions. Indeed they have been repeatedly complaining that they have already been “condemned without trial” in the proper court of justice. Thus they are persistently dwelling on their alleged right to due process of law which, they claim, has been violated so soon. And to a certain extent this claim has some basis.

But even if there are some taints of politics and selective justice here, the overall findings of the OMB are well founded. Apparently, there is probable cause to charge Senators Juan Ponce Enrile, Ramon Revilla Jr., Jinggoy Estrada, their respective chiefs of staff “Gigi” Reyes, Richard Cambe and Pauline Labayen as well as the scam’s alleged mastermind, businesswoman Janet Lim Napoles, Ruby Tuason, the alleged bag lady of Estrada and Enrile, Technology Resource Center (TRC) director general Dennis Cunanan, and several other government officials and employees of non-government organizations (NGOs), with the crime of plunder or violation of anti-graft law.

“Probable cause” exists, for purposes of filing a criminal Information when there are sufficient sets of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged (or to be charged) in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence... He relies on common sense”… It “demands more than bare suspicion; it requires less evidence than would justify conviction” (Kalalo vs. Office of the Ombudsman, 619 SCRA 141; Okabe vs. Gutierrez etc. et.al , 429, SCRA 685; Advincula vs. Court of Appeals, 343 SCRA. 583).

The determination of the existence of probable cause for purposes of filing criminal charges lies within the discretion of the prosecuting officers after conducting the preliminary investigation like the one made by the OMB in this case. According to the SC it is not a “sound practice to depart from the policy of non-interference in the Ombudsman’s exercise of discretion to determine whether or not to file Information against an accused.” The SC said that it “cannot pass upon the sufficiency or insufficiency of evidence to determine the existence of probable cause,” because, “if it were otherwise, this Court (SC) will be clogged with an innumerable list of cases assailing investigatory proceedings conducted by the OMB with regard to complaint filed before it to determine if there is probable cause.” Furthermore the issue can be elevated to the SC only on a petition for certiorari which admits only questions of abuse of discretion amounting to lack or excess of jurisdiction and never questions of fact (Galario vs. Ombudsman 527 SCRA 190).

Based on the foregoing jurisprudence, there is indeed probable cause to charge Enrile et. al with the crimes of plunder and other violations of anti-graft law. Indeed Enrile, Revilla Jr. and Estrada have not denied that the pork barrel scam happened. They are just washing their hands of the anomaly and claiming in their defense that “it’s not their fault.” Such defense however is material only determining their guilt or innocence and not the existence of probable cause. The merits of this claim are to be decided already by the court itself or the Sandiganbayan which has the authority and competence to calibrate the evidence in accordance with the Rules of Court.

So based on the existing policy of the SC as established in the aforementioned cases, Enrile, Revilla, Estrada and the rest of the respondents should not file a motion for reconsideration anymore. If it’s not their fault but the fault of others as they claim, they should immediately go to trial and expedite the termination of the case to clear their names as soon as possible. Moving for reconsideration and elevating this issue to the Supreme if the OMB denies their motion is just a delaying tactic which is usually employed by those with a weak defense, or have no defense at all.

But to really show that our legal system works in this case and that we are really governed by the rule of law, and that no man is above the law, as Senate President Franklin Drilon claims, the OMB should on its own initiative conduct preliminary investigations of other officials who may have committed plunder using the PDAF and the DAP including and especially those belonging to this administration. It can rely on the COA findings where they can find enough leads for this purpose. This will erase any taint of politics and selective justice in their work.

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