EN BANC
G.R. No. 218232, July 24, 2018
RAMON "BONG" B. REVILLA, JR., Petitioner, v. SANDIGANBAYAN (FIRST DIVISION) AND PEOPLE OF THE PHILIPPINES, Respondents.
G.R. No. 218235
RICHARD A. CAMBE, Petitioner, v. SANDIGANBAYAN (FIRST DIVISION), PEOPLE OF THE PHILIPPINES, AND OFFICE OF THE OMBUDSMAN, Respondents.
G.R. No. 218266
JANET LIM NAPOLES, Petitioner, v. SANDIGANBAYAN (FIRST DIVISION), CONCHITA CARPIO MORALES, IN HER CAPACITY AS OMBUDSMAN, AND PEOPLE OF THE PHILIPPINES, Respondents.
G.R. No. 218903
PEOPLE OF THE PHILIPPINES, Petitioner, v. SANDIGANBAYAN (FIRST DIVISION), RAMON "BONG" B. REVILLA, JR., AND RICHARD A. CAMBE, Respondents.
G.R. No. 219162
RAMON "BONG" B. REVILLA, JR., Petitioner, v. SANDIGANBAYAN (FIRST DIVISION) AND PEOPLE OF THE PHILIPPINES, Respondents.
D E C I S I O N
CARPIO, J.:
In 2006 to 2010, or thereabout, in the Philippines, and within this Honorable Court's jurisdiction, above-named accused RAMON "BONG" BAUTISTA REVILLA, JR., then a Philippine Senator and RICHARD ABDON CAMBE, then DIRECTOR III at the Office of Senator Revilla, Jr., both public officers, committing the offense in relation to their respective offices, conspiring with one another and with JANET LIM NAPOLES, RONALD JOHN B. LIM, and JOHN RAYMUND S. DE ASIS, did then and there willfully, unlawfully, and criminally amass, accumulate and/or acquire ill-gotten wealth amounting to at least TWO HUNDRED TWENTY FOUR MILLION FIVE HUNDRED TWELVE THOUSAND FIVE HUNDRED PESOS (Php224,512,500.00), through a combination or series of overt criminal acts, as follows:Upon arraignment, Napoles and Cambe pleaded not guilty to the charge against them, while petitioner Revilla refused to enter any plea; thus, the Sandiganbayan entered a plea of not guilty in his behalf pursuant to Section 1(c), Rule 116 of the Rules of Court.10a) by repeatedly receiving from NAPOLES and/or her representatives LIM, DE ASIS, and others, kickbacks or commissions under the following circumstances: before, during and/or after the project identification, NAPOLES gave, and REVILLA, JR. and/or CAMBE received, a percentage of the cost of a project to be funded from REVILLA, JR.'s Priority Development Assistance Fund (PDAF), in consideration of REVILLA, JR.'s endorsement, directly or through CAMBE, to the appropriate government agencies, of NAPOLES' non-government organizations which became the recipients and/or target implementors of REVILLA, JR.'s PDAF projects, which duly-funded projects turned out to be ghosts or fictitious, thus enabling NAPOLES to misappropriate the PDAF proceeds for her personal gain;CONTRARY TO LAW.9
b) by taking undue advantage, on several occasions, of their official positions, authority, relationships, connections, and influence to unjustly enrich themselves at the expense and to the damage and prejudice, of the Filipino people and the Republic of the Philippines.
From 2007 to 2009, accused Revilla was allocated and utilized [Priority Development Assistance Fund (PDAF)] in the total amount of P517,000,000.00, covered by twelve (12) [Special Allotment Release Orders (SAROs)], for livelihood and agricultural projects. He named the [Technology Livelihood Resource Center (TLRC), National Agri-Business Corporation (NABCOR), and National Livelihood Development Corporation (NLDC)] to be the [implementing agencies (IAs)], and endorsed five (5) of Napoles' [non-governmental organization (NGOs)], i.e., [Agri & Economic Program for Farmers Foundation, Inc. (AEPFFI), Philippine Social Development Foundation, Inc. (PSDFI), Masaganang Ani Para sa Magsasaka Foundation, Inc. (MAMFI), Social Development Program for Farmers Foundation, Inc. (SDPFFI), and Agricultura Para Sa Magbubukid Foundation, Inc. (APMFI),] as project partners. Of the 12 SAROs, Luy identified six (6) SAROs in his Summary of Rebates, showing how he came up with the supposed P224,512,500.00 rebates/commissions/kickbacks mentioned in the Information. The six (6) SAROs with their corresponding amounts, beneficiary NGOs, IAs, and the amount of commissions received by Revilla, through Cambe, mentioned in Luy's Summary are shown in the table below:On the other hand, the defense presented Atty. Desiderio A. Pagui (Pagui), a lawyer and retired document examiner of the NBI, as expert witness. In his Report No. 09-10-2013, attached to his Judicial Affidavit dated 12 November 2014 and adopted as his direct testimony, Pagui stated that upon comparison of Revilla's purported signatures on the photocopies of the PDAF documents and the standard documents bearing Revilla's authentic signature, the purported signatures are not authentic and affixed by Revilla. Pagui examined the originals and photocopies of the PDAF documents in open court using a magnifying glass, and he maintained that the purported signatures are not authentic and affixed by Revilla. Pagui likewise testified that he also examined the photocopies of documents with signatures of Cambe and his findings were embodied in Report No. 10-11-2013.TABLE A
SAROAmount
(Php)IANGORebates Received
(Php)Date Received1. ROCS-07-0548625 millionTLRCAEPFFI7.5 millionMarch 27, 20072. ROCS-08-0525465 millionNABCORMAMFI/ SDPFFI10 million
17,250,000.00June 24, 20083. ROCS-08-05660
July 3, 200815 millionNABCORMAMFI7,750,000.00July 23, 20084. D-08-955840 millionTLRCSDPFFI17 millionDec. 5, 20085. ROCS-08-0978940 millionTLRCSDPFFI2 million
18 millionDec. 12, 20086. G-09-07065
Dec. 15, 200880 millionNLDCAEPFFI
and
APMFI9 million
9 million
2 million
12 million
8 millionOct. 6, 2009TOTAL
Oct. 6, 2009
Oct. 6, 2009
Oct. 22, 2009
Oct. 22, 2009Php 265 millionPhp119,500,000.00
Other commissions without corresponding SARO numbers lifted from Luy's Summary are shown hereunder.TABLE B Date ReceivedIA/ParticularsRebates ReceivedApril 6, 2006 PDAF-DA 2006 5 million June 6, 2006 DA - 2006 5 million April 12, 2007 DA - 50 M 9.5 million April 19, 2007 PDAF-DA 50 M and TLRC 50 M 2007 3 million August 2, 2007 2 million August 10, 2007 3 million October 16, 2007 PDAF 82 M 5 million October 25, 2007 PDAF 82 M 2 million November 15, 2007 PDAF DA and TLRC 82 M 2007 project 5 million November 23, 2007 PDAF 82 M project 3.5 million December 21, 2007 PDAF 82 M project 10 million December 26, 2007 PDAF 82 M project 10.5 million May 9, 2008 PDAF 80 M 5 million October 24, 2008 PDAF 50 M 3 million March 17, 2010 28,512,500.00 April 28, 2010 5 million TOTAL Php105,012,500.00 Total Rebates ReceivedTable A + Table BPhp224,512,500.00
(Php)
Accused Revilla's commissions represented 50% of the project cost, 25% percent of which was released by accused Napoles upon showing that the DBM already received accused Revilla's endorsement letter with project listings. The other 25% was released upon issuance of the SARO. On the other hand, accused Cambe's share was 5% of the project cost.
But there were instances that, prior to the issuance of the SARO and preempting its release, accused Revilla advanced money from accused Napoles. There were also times that his share was given to him in tranches until the full amount was paid. Thus, there appear entries in Luy's Summary of Rebates without corresponding SARO numbers, and in amounts less than 25% or 50% of the amount of the SARO. Accused Cambe got his commission either together with that of accused Revilla or separately. To acknowledge receipt of the rebates for himself or that for accused Revilla, accused Napoles' office had accused Cambe sign JLN vouchers which, however, were already shredded upon the instruction of accused Napoles.
Upon release of the SARO, documents like letters signed by accused Revilla indorsing accused Napoles' NGO, MOAs signed by accused Cambe, project proposal, and foundation profile, were submitted to the IA.
Subsequently, the IA, after deducting a 3% management fee, released a check in the name of the NGO endorsed by accused Revilla. Accused Napoles had either the president of the payee NGO or anybody from his trusted employees receive the check. Accused Napoles' representative signed the IA voucher and, in return, issued a receipt to the IA in the name of the foundation.
The check was then deposited to the account of the payee foundation. After it was cleared, accused Napoles had her trusted employees withdraw the proceeds of the check. The money was brought to accused Napoles, usually to her office at 2502 Discovery Center, and was disposed of at her will or upon her instruction. Part of the proceeds was used to pay the commissions of accused Revilla and Cambe. Some were kept at the office vault or was brought to her condo unit at 18D Pacific Plaza. Accused Napoles' share was pegged at 32% and 40%, depending on the IA, and she used it to buy dollars and to acquire properties in the Philippines and abroad. She also made deposits in a foreign account to support her daughter Jean and accused Napoles' brother Reynald Lim in the US.
To make it appear that there were implementations of the projects for which accused Revilla's PDAFs were intended, the NGOs submitted liquidation documents such as official receipts, delivery receipts, accomplishment reports, which were all fake, and lists of beneficiaries which were just fabricated having only signed by Napoles' employees, children, household helpers, drivers, and security guards. The receipts were issued by bogus suppliers which were likewise owned or controlled by accused Napoles.17
The Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying petitioner's application for admission to bail despite the fact that the evidence on record do not show a clear and strong evidence of his guilt [for] the crime of plunder.38In G.R. No. 218235, Cambe argues that the Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions:
A. The denial of petitioner's application for bail was based on Criminal Procedure 1900 (General Order No. 58), which requires a much lower quantum of proof to deny bail (i.e., proof of guilt is evident or presumption of guilt is strong), and not on Section 13, Article III of the 1987 Philippine Constitution, which requires proof that "evidence of guilt is strong."In G.R. No. 218266, Napoles alleged that the Sandiganbayan committed grave abuse of discretion in ruling:
B. The denial of petitioner's motion for reconsideration was based on the concept of "totality of evidence" which is applicable in Writ of Arnparo cases only.
C. Even assuming that "proof evident," "presumption great," or proof that "the presumption of guilt is strong" are the tests to determine whether petitioner may be granted or denied bail, the assailed resolutions were based on mere presumptions and inferences.39
A. that the prosecution was able to prove with strong evidence that [Revilla] and [Cambe] conspired with [Napoles], in amassing, accumulating, and acquiring ill-gotten wealth. Thus, their petition for bail should be denied.In G.R. No. 218903, the Office of the Ombudsman, through the Office of the Special Prosecutor, alleged that the Sandiganbayan committed grave abuse of discretion amounting to lack and/or excess of jurisdiction:
B. that the hard disk, disbursement ledger and the summary of rebates are reliable and with integrity.
C. [that] the testimonies of the witnesses and the documents they [submitted are credible].
D. [that] x x x that the evidence of the prosecution prove[s] plunder.40
A. when it substituted its own judgment and refused to apply the clear mandate of [RA 6975].In G.R. No. 219162, Revilla alleged that the Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in granting the State's Ex-Parte Motion for the issuance of a writ of preliminary attachment considering that:
B. when it denied the transfer of private respondents to a BJMP-operated facility despite the absence of cogent reasons to justify their detention in a facility other than that prescribed by law.
C. when it refused to recognize that the continued detention of private respondents at Camp Crame affords them special treatment and subjects them to different rules and procedures.41
A. the issuance of the assailed writ is erroneous and premature. The plunder law does not allow the issuance of a writ of preliminary attachment, as it amounts to a prejudgment and violates petitioner's constitutional rights to presumption of innocence and due process; and
B. there is neither legal nor factual basis for the issuance of the writ of preliminary attachment or garnishment.42
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (Emphasis supplied)Rule 114 of the Rules of Court emphasizes that offenses punishable by death, reclusion perpetua or life imprisonment are non-bailable when the evidence of guilt is strong:
Sec. 7. Capital offense or an offinse punishable by reclusion perpetua or life imprisonment, not bailable. - No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. (Emphasis supplied)The grant or denial of bail in an offense punishable by reclusion perpetua, such as plunder, hinges on the issue of whether or not the evidence of guilt of the accused is strong. This requires the conduct of bail hearings where the prosecution has the burden of showing that the evidence of guilt is strong,47 subject to the right of the defense to cross-examine witnesses and introduce evidence in its own rebuttal.48 The court is to conduct only a summary hearing, or such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail.49
THE FIRST ELEMENT. Accused Revilla and Cambe were public officers at the time material to this case, accused Revilla being a member of the Senate of the Philippines, and accused Cambe being Revilla's Chief of Staff/Political Officer/Director III as appearing on the face of the documents on record. Accused Napoles is a private individual charged in conspiracy with accused Revilla and Cambe. As provided in Section 2 of RA 7080, "[a]ny person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense."Thus, the Sandiganbayan exercised its judicial discretion within the bounds of the Constitution, law, rules, and jurisprudence after appreciating and evaluating the evidence submitted by the parties.
THE SECOND ELEMENT. x x x.
x x x x
The separate and individual acts of accused Revilla, Cambe and Napoles convincingly appear to have facilitated the amassing, accumulation, and acquisition of ill-gotten wealth by accused Revilla. It is immaterial whether or not the prosecution has presented evidence that accused Cambe and Napoles by themselves have likewise amassed, accumulated, or acquired ill-gotten wealth in the amount of at least P50 Million each. It is sufficient that the prosecution has established that accused Revilla and accused Cambe have conspired with one another, and with accused Napoles in the accumulation or acquisition of ill-gotten wealth of at least P50 million.
The Court is persuaded that the prosecution has presented compelling evidence that accused Revilla amassed, accumulated or acquired ill-gotten wealth by repeatedly receiving from accused Napoles or her representatives or agents, money, through accused Cambe, and in those several occasions, accused Revilla and/or Cambe made use of his or their official position, authority, connections, and influence. This was established by the testimonies of the witnesses and the documents they testified to which, at this stage of the proceedings, [have] remained unrebutted, and thus, given full faith and credence by the Court.
From 2006 to 2009, accused Revilla was earmarked PDAF from the national budget. He had no physical and direct possession of the fund. However, as the fund was allocated to his office, he alone could trigger its release, after accomplishment of the necessary documentary requirements. All he had to do, and which he actually did, was to request its release from then President Gloria Macapagal-Arroyo (PGMA) or from the DBM accompanied by a list of projects and endorsement naming a certain implementing agency on the DBM's menu as project implementor. Finding everything to be in order, the DBM processed accused Revilla's request, approved it, and eventually released the SARO. Accused Revilla was informed of this release. After the SARO, the DBM issued the NCA to cover the cash requirements of the IA authorized under the SARO. The DBM issued Notice of Cash Allocation Issued (NCAI) to the Bureau of Treasury. In tranches, the IA issued checks to the NGOs. The NGOs were paid in full of the project cost upon submission of liquidation reports with supporting documents, such as delivery receipts, purchase orders and list of beneficiaries, with corresponding signatures.
x x x x
It is well to note that accused Revilla's endorsement consisted of two phases. The first phase consisted of letters addressed to PGMA or the DBM requesting for the release of the PDAF, with attached list of priority projects. Itemized in the list were the location, name and amount of the project as well as the IA he desired to implement the project. The second phase consisted of letters to the IAs subsequent to the issuance of the SARO, this time, endorsing Napoles' NGOs to the IAs as the latter's project partners.
The endorsement letters and other documents submitted to the IAs show that accused Revilla's participation did not just stop at initiating the release of his PDAF, but extended to the implementation stage of his identified projects. He sent communications to the IAs appointing and authorizing accused Cambe to monitor, follow up, or assist in the implementation of the projects, and "to sign in his behalf all other documents needed to smooth the process." Accused Cambe, for accused Revilla, conformed to the project activities and project profiles prepared by the NGOs. He likewise signed on the tripartite MOAs with the representatives of the IA and the NGO concerned. Also, accused Cambe, by himself or for accused Revilla, signed liquidation documents such as accomplishment/terminal reports, reports of disbursement (fund utilization), inspection and acceptance reports.
x x x x
Accused Revilla could not have possibly drawn money from his PDAF allocation directly to himself. He had to do it through channels or conduits to camouflage the flow with a semblance of legitimacy. Here lies the indispensable participation of accused Napoles. Like accused Revilla, accused Napoles stayed at the background, using other people as her tentacles to fulfill her part of the conspiracy. Although accused Napoles' signature does not appear in any of these documents, evidence abounds to support that she was the brains behind the vital link of the conspiracy. Luy, Suñas, Sula and Baltazar, who once worked for accused Napoles, consistently declared that they moved and acted upon the instruction of Napoles, from the creation of fake NGOs to the diversion of the proceeds of the PDAF. Accused Napoles engineered the creation of the NGOs through which the proceeds of accused Revilla's PDAF were funneled.
Evidence discloses that the NGOs were illicitly established for some dishonest purpose. Their presidents and incorporators either have working or personal relations to accused Napoles, or unknown to her, or fictitious. The addresses of the NGOs were either the location of her property or that of her employees whom she made presidents, or otherwise inexistent. The lists of beneficiaries were bogus, and this was confirmed by the COA during its own investigation where it was found that either there were no projects implemented or there were no such names of beneficiaries that existed.
Accused Napoles' connection to and control of the NGOs are made evident by the bank transactions of the NGOs. Records of bank transactions of these NGOs reveal, as testified to by witness Santos from the AMLC, that the accounts of these NGOs with the Land bank and Metrobank were only temporary repository of funds and that the withdrawal from the accounts of the NGOs had to be confirmed first with accused Napoles nothwithstanding that the accounts were not under her name. It is well to note that the bank accounts of these NGOs were opened by the named presidents using JLN Corp. identification cards. These circumstances are consistent to the testimonies of accused Luy, Sula, Suñas and Baltazar that as soon as the check of the PDAF proceeds were encashed, accused Napoles directed them or any of her trusted employees to withdraw the same. At this stage, the Court sees no basis to doubt the strong evidence against accused Napoles.
Accused Revilla managed to remain incognito in reaping benefits from the illegal scheme with the help and cooperation of accused Cambe. Concededly, there are no direct proofs that accused Revilla received commissions/rebates out of the proceeds of his PDAF routed to accused Napoles, but the circumstances persuasively attest that accused Revilla on several occasions, received money from the illegitimate deals involving his PDAF, through accused Cambe. Also, accused Cambe profited from the same transactions so far computed at P13,935,000.00.
There are solid reasons to infer that accused Cambe acted on behalf of accused Revilla and with the latter's imprimatur, and that accused Revilla effectively clothed accused Cambe with full authority. Consider these: (1) accused Cambe worked for Revilla in the Senate; (2) accused Revilla designated accused Cambe to follow up, supervise and act on his behalf for the implementation of the projects, and to sign necessary documents; (3) accused Cambe, representing accused Revilla or Revilla's office, signed the MOAs and other documents used to support the issuance of the checks from the IA to accused Napoles' NGOs to supposedly finance the projects out of accused Revilla's PDAF. Accused Cambe likewise signed liquidation documents such as accomplishment reports; (4) Luy, Suñas, and Sula forthrightly and positively identified Cambe to have received from them or from accused Napoles the commissions/rebates of accused Revilla; (5) the said witnesses likewise candidly testified that accused Cambe also personally got his own commission either from them or from accused Napoles; (6) Luy had recorded the commissions/rebates per his testimony, and as shown by his disbursement ledgers and Summary of Rebates. These points may rest heavily on the credibility of the witnesses. But, as discussed, the Court, in the meantime, saw no cogent justification to invalidate their testimonies.
x x x x
THE THIRD ELEMENT. Of the Php224,512,500.00 alleged in the Information to have been plundered by accused Revilla and/or Cambe, the prosecution has so far strongly proven the amount of P103,000,000.00 broken down below. This is the total amount received by accused Cambe for Revilla, to which Luy, Sula and Suñas have testified to their personal knowledge. In other words, Luy, Sula or Suñas either directly handed the money to accused Cambe, or they saw accused Napoles, or any one of them, give the money to accused Cambe. Thus:(Emphasis supplied)DateAmountApril 6, 2006Php 5,000,000.00June 6, 20065,000,000.00March 27, 20077,500,000.00April 12, 20079,500,000.00April 19, 20073,000,000.00August 10, 20073,000,000.00200810,000,000.005,000,000.00October 6, 20099,000,000.00October 6, 20099,000,000.00October 6, 20092,000.000.00October 22, 200912,000,000.00October 22, 20098,000,000.00March 201015,000,000.00TotalPhp103,000,000.0059
SECTION 63. Establishment of District, City or Municipal Jail. There shall be established and maintained in every district, city and municipality a secured, clean, adequately equipped and sanitary jail for the custody and safekeeping of city and municipal prisoners, any fugitive from justice, or person detained awaiting investigation or trial and/or transfer to the national penitentiary, and/or violent mentally ill person who endangers himself or the safety of others, duly certified as such by the proper medical or health officer, pending the transfer to a medical institution.However, both Section 3 of Rule 113 and Section 63 of RA 6975 are inapplicable in the present case. It must be noted that Revilla and Cambe voluntarily surrendered to the Sandiganbayan, and there is no opportunity for the arresting officer to execute the warrants of arrest against them. Moreover, the said rule merely refers to the duty of the arresting officer to deliver the arrested person to the nearest police station or jail. The rule did not state about the duty "to detain" the arrested person to the nearest police station or jail. There is nothing in the rule referring to the place of detention of the arrested person.
The municipal or city jail service shall preferably be headed by a graduate of a four (4) year course in psychology, psychiatry, sociology, nursing, social work or criminology who shall assist in the immediate rehabilitation of individuals or detention of prisoners. Great care must be exercised so that the human rights of [these] prisoners are respected and protected, and their spiritual and physical well-being are properly and promptly attended to.
The prosecution failed to advance compelling and reasonable grounds to justify the transfer of accused Revilla and Cambe from the PNP Custodial Center, Camp Crame, to a BJMP controlled jail. Since their detention at the PNP Custodial Center on June 20, 2014, the conditions of their confinement have not been altered by circumstances that would frustrate the very purpose of their detention. Both accused have submitted themselves to the Court when required. No concrete incidents have been cited by the prosecution to establish that their continued detention in Camp Crame is no longer viable, and that the better part of discretion is to transfer them to a BJMP controlled jail. The prosecution does not articulate what is in a BJMP facility that the PNP Custodial Center lacks, or vice versa, which will make a difference in the administration of justice.In its Resolution dated 20 May 2015, the Sandiganbayan stated that it so took into account, considering the circumstances of the accused, the security conditions of the place, and its proximity to the court.90 With these factors, the Sandiganbayan viewed that the PNP Custodial Center would be able to secure the accused and ensure their attendance at trial, at a reasonable cost to the government. Absent any showing of grave abuse of discretion, the factual findings of the Sandiganbayan are binding upon the Court. We affirm the order of the Sandiganbayan directing the PNP-CIDG "to keep the accused in its custody at the aforesaid barracks (PNP Custodial Center Barracks) and not allow the accused to be moved, removed, or relocated until further orders from the court."91
Before the Court is simply a general proposition that the accused should be confined in a BJMP controlled detention facility based on some rules, which the Court have previously discussed to be unacceptable, backed up by an unsubstantiated generic declaration that the PNP Custodial Center affords them special treatment not extended to all other detention prisoners under BJMP control. To the prosecution, this is a violation of the constitutional right to equal protection of the other detention prisoners, like Atty. Reyes, who is now detained in a BJMP facility.
But, the Court is not convinced. To agree with the prosecution on the matter of special treatment is to accept a general notion that the public officers in a BJMP facility are more circumspect in the handling of detention prisoners than in a non-BJMP facility, like the PNP Custodial Center. Verily, the "special treatment," e.g., wedding anniversary celebration of Senator Jinggoy Estrada claimed by the prosecution, does not go with the place. It has even nothing to do with accused Revilla and Cambe. "Special treatment" is a judgment call by the people concerned in the place. For no matter which detention place will accused Revilla and Cambe be confined if the people controlling that place would extend them privileges not usually given to other detention prisoners, there would always be that dreaded "special treatment." Thus, special treatment can be addressed by ensuring that the people around the accused in their present detention facility will deter from giving them exceptional benefits, through a firm implementation of policies and measures, and the imposition of sanctions for non-compliance. The "special treatment" cannot be remedied by transferring the accused to another detention facility. The transfer must be reasonably justified.
The Court solicitously agrees that it is the fact of detention and not the place of detention that is important. x x x.89
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;Clearly, the crime of plunder is based on a claim for public funds or property misappropriated, converted, misused, or malversed by the accused who is a public officer, in the course of his employment as such. The filing of the criminal action for plunder, which is within the jurisdiction of the Sandiganbayan,105 is deemed to necessarily carry with it the filing of the civil action. Accordingly, the writ of preliminary attachment is an available provisional remedy in the criminal action for plunder.
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.104 (Emphasis supplied)
Taking together all of the above-stated pieces of evidence, the COA and FIO reports tend to prima facie establish that irregularities had indeed attended the disbursement of Sen. Revilla's PDAF and that he had a hand in such anomalous releases, being the head of Office which unquestionably exercised operational control thereof. As the Ombudsman correctly observed, "[t]he PDAF was allocated to him by virtue of his position as a Senator, and therefore he exercise[d] control in the selection of his priority projects and programs. He indorsed [Napoles'] NGOs in consideration for the remittance of kickbacks and commissions from Napoles. Compounded by the fact that the PDAF-funded projects turned out to be 'ghost projects', and that the rest of the PDAF allocation went into the pockets of Napoles and her cohorts, [there is probable cause to show that] Revilla thus unjustly enriched himself at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines." Hence, he should stand trial for violation of Section 3(e) of RA 3019. For the same reasons, it is apparent that ill-gotten wealth in the amount of at least P50,000,000.00 (i.e., P224,512,500.00) were amassed, accumulated or acquired through a combination or series of overt acts stated in Section 1 of the Plunder Law. Therefore, Sen. Revilla should likewise stand trial for Plunder.108 (Emphasis supplied)Thus, contrary to Revilla's insinuations, there exists a prima facie factual foundation for the attachment of his monies and properties.
Very truly yours, |
Endnotes:
1 Pertain to the following petitions: (a) petition in G.R. No. 218232 filed by Revilla; (b) petition in G.R. No. 218235 filed by Cambe; and (c) petition in G.R. No. 218266 filed by Napoles.
2Rollo (G.R. No. 218232), Vol. I, pp. 53-123.
3 Id. at 124-148.
4Rollo (G.R. No. 218903), Vol. I, pp. 29-40.
5 Id. at 41-49.
6Rollo (G.R. No. 219162), Vol. I, pp. 36-43.
7 Id. at 44-51.
8Rollo (G.R. No. 218235), Vol. I, pp. 166-167. In an Order dated 26 June 2014, the Sandiganbayan "resolved to PARTIALLY DENY the prosecution's motion to admit the amended information in that the proposed substantial amendments were not allowed but, with the conformity of the defense counsels, the Court authorized the prosecution to effect the formal amendments to the said Information."
9 Id. at 19-20.
10 This provision reads: "(c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him."
11Rollo (G.R. No. 218903), Vol. I, pp. 52-55.
12 Id. at 56-58.
13 Id. at 59-61.
14 Id. at 62-64.
15Rollo (G.R. No. 218235), Vol. I, pp. 115-120.
16 Sandiganbayan Resolution dated 1 December 2014, footnote no. 2 states "The Court in its Order dated July 3, 2014, denied the petition for bail filed by accused Lim and De Asis (jointly with accused Napoles), as they had remained at-large."
17Rollo, (G.R. No. 218232), Vol. I, pp. 100-103.
18 Supra note 2.
19 Supra note 3.
20Rollo (G.R. No. 218232), Vol. VII, pp. 3622-3626.
21 Id. at 3622.
22Rollo (G.R. No. 218903), Vol. I, pp. 65-70.
23 Id. at 89-102.
24 Id. at 72-76.
25 Supra note 4.
26Rollo (G.R. No. 218903), Vol. I, pp. 184-191.
27 Id. at 195-201.
28 Supra note 5.
29Rollo (G.R. No. 219162), Vol. I, pp. 188-199.
30 Id. at 191.
31 Id. at 200-209.
32 Id. at 210-218.
33 Supra note 6.
34Rollo (G.R. No. 219162), Vol. II, pp. 566-567.
35 Supra note 7.
36Rollo (G.R. No. 219162), Vol. I, pp. 464-A-464-B.
37Rollo (G.R. No. 218232), Vol. VII, pp. 3634-3635.
38 Id., Vol. I, p. 15.
39Rollo (G.R. No. 218235), Vol. I, p. 6.
40Rollo (G.R. No. 218266), Vol. I, p. 6.
41Rollo (G.R. No. 218903), Vol. I, pp. 12-13.
42Rollo (G.R. No. 219162), Vol. I, p. 11.
43 Supra note 21.
44People v. Cabral, 362 Phil. 697 (1999).
45 Id.; Carpio v. Maglalang, 273 Phil. 240 (1991).
46San Miguel Corp. v. Sandiganbayan, 394 Phil. 608 (2000), citing Big Country Ranch Corp. v. Court of Appeals, 297 Phil. 1105 (1993).
47 Rules of Court, Rule 114, Section 8 provides: "At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify."
48Comia v. Judge Antona, 392 Phil. 433 (2000), citing Cortes v. Judge Catral, 344 Phil. 415 (1997); Ocampo v. Bernabe, 77 Phil. 55 (1946).
49Serapio v. Sandiganbayan, 444 Phil. 499 (2003), citing Ocampo v. Bernabe, 77 Phil. 55 (1946); Basco v. Judge Rapatalo, 336 Phil. 214 (1997).
50Basco v. Judge Rapatalo, 336 Phil. 214 (1997); Carpio v. Maglalang, 273 Phil. 240 (1991), citing People v. San Diego, 135 Phil. 515 (1968).
51People v. Cabral, supra note 44.
52People v. Cabral, supra note 44.
53People v. Cabral, supra note 44.
54Aleria, Jr. v. Velez, 359 Phil. 141 (1998).
55People v. Antona, 426 Phil. 151 (2002); Borinaga v. Judge Tamin, 297 Phil. 223 (1993).
56 Id.
57 Sec. 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty mill ion pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (Emphasis supplied)
58 Section 1(d) states:d) "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes.59Rollo (G.R. No. 218232), Vol. I, pp. 106-121.1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
60People v. Cabral, supra note 44.
61 Supra note 44, at 709. Boldfacing and underscoring supplied.
62 621 Phil. 536 (2009).
63 Supra note 62, at 554.
64People v. Cabral, supra note 44, at 709-710.
65Alvizo v. Sandiganbayan, 454 Phil. 34 (2003).
66 Id. at 82.
67Rollo (G.R. No. 218235), p. 117. Emphasis supplied.
68 427 Phil. 820 (2002).
69 Id. at 902.
70Guy v. People of the Philippines, 601 Phil. 105 (2005).
71 Id.
72 Id.
73People of the Philippines v. Combate, 653 Phil. 487 (2010).
74 Id.
75 Id.
76 Id.
77Gomez v. Gomez-Samson, 543 Phil. 436, 457 (2007).
78Serapio v. Sandiganbayan, 444 Phil. 499 (2003).
79People of the Philippines v. Judge Gako, 401 Phil. 514 (2000); Basco v. Rapatalo, 336 Phil. 214 (1997).
80Cambe v. Office of the Ombudsman, G.R. Nos. 212014-15, 6 December 2016, 812 SCRA 537.
81 Id.
82 Rule 113, Section 1.
83 Rule 113, Section 2.
84 Section 20.2a(1) of the Revised PNP Police Operational Procedures Manual. http://www.pnp.gov.ph/images/transparency_seal/2016/manuals/PNPOperationsManual.pdf (accessed 24 October 2017).
85 Id.
86 Rule 114, Section 25.
87 Rule 135, Section 6.
88 Section 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act.
89Rollo (G.R. No. 218903), Vol. I, pp. 38-39.
90 Id. at 46.
91 Id. at 62-64.
92 Presidential Decree No. 1606, as amended by Republic Act No. 10660, Section 4 provides: "Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned."
93 Presidential Decree No. 1606, Section 9.
94 Rules of Court, Rule 127, Section 1.
95 Rules of Court, Rule 127, Section 2 provides: "When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases:
x x x x
(b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and
x x x x"
96 Rules of Court, Rule 57, Section 1. Emphasis supplied.
97Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good Government, 234 Phil. 180 (1987).
98Jardine-Manila Finance, Inc. v. Court of Appeals, 253 Phil. 626 (1989).
99Watercraft Venture Corp. v. Wolfe, 769 Phil. 394 (2015).
100 Id.
101 Id.
102 Id.
103Republic of the Philippines v. Garcia, 554 Phil. 371 (2007).
104 RA 7080, Section 1(d).
105 RA 7080, Section 3 provides: "Until otherwise provided by law, all prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan."
106Rollo (G.R. No. 219162), Vol. I, p. 190.
107 Supra note 80.
108 Supra note 80, at 599-600.
109 281 Phil. 386 (1991).
110 Id. at 396, citing Toledo v. Judge Burgos, 250 Phil. 514 (1998).
111 Id., citing Filinvest Credit Corporation v. Judge Relova, 202 Phil. 741, 750 (1982).
112Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good Government, supra note 97.
113Lim, Jr. v. Spouses Lazaro, 713 Phil. 356 (2013).
114 Id.
115Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good Government, supra note 97.
116Republic of the Philippines v. Garcia, supra note 103.
117Republic of the Philippines v. Garcia, supra note 103.
118Republic of the Philippines v. Garcia, supra note 103.
VELASCO, JR., J.:
It is elementary that the existence of waiver must be positively demonstrated since a waiver by implication cannot be presumed. The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." There must thus be persuasive evidence of an actual intention to relinquish the right. Mere silence of the holder of the right should not be easily construed as surrender thereof; the courts must indulge every reasonable presumption against the existence and validity of such waiver. Necessarily, where there is a reservation as to the nature of any manifestation or proposed action affecting the right of the accused to be heard before he is condemned, certainly, the doubt must be resolved in his favor to be allowed to proffer evidence in his behalf.Here, while Revilla withdrew his petition in G.R. No. 218232, he made the following reservation:
Considering, however, that the presentation of prosecution evidence in the Plunder Case below will already commence on 12 January 2017, and that trial will be conducted every Thursday thereafter, petitioner will avail of the remedies available to him in said proceedings once the insufficiency of the evidence against him is established.5The absence of the intent to relinquish his right to bail is clear from Revilla's foregoing statement. In fact, nothing therein shows his awareness that by withdrawing his Petition, he was thereby abandoning his right to bail. On the contrary, Revilla clarified his intent to avail of the remedies available to him. This necessarily includes the remedy of applying for bail.
CambeWithout the satisfaction of the lower standard of probable cause, there cannot be a strong evidence of guilt that could warrant Cambe's continuous detention. Therefore, I submit that, at the very least, he should be released on bail.
As to Cambe, the March 28, 2014 Joint Resolution of the respondent OOMB briefly outlines his alleged participation in the conspiracy, thus:
x x x x
In fine, the Ombudsman, in its Joint Resolution, attempted to establish Cambe's liability by presenting an elaborate, complicated scheme wherein he purportedly conspired with Revilla, et al. and the whistleblowers to allegedly enable Revilla to illegally acquire and amass portions of the PDAF through kickbacks.
Cambe's participation in the alleged conspiracy scheme to amass wealth, therefore, hinges on his participation as staff member of Sen. Revilla, and his purported signatures on the PDAF documents. On this point, Cambe argued that all his signatures in the PDAF documents were forged, and, thus, his participation in the conspiracy scheme has not been adequately established.
To underscore his point, he presented the examination report dated December 5, 2013 of Atty. Pagui, the forensic document examiner who examined the purported signatures of Cambe appearing on the PDAF documents, and compared them with various standard signatures presented by Cambe. In his report, Atty. Pagui concluded:
x x x x
Interestingly, the March 28, 2014 Joint Resolution of the respondent Ombudsman did not once mention the examination report of Atty. Pagui, nor did it squarely address the allegation of forgery. It immediately dismissed the argument by saying:
Forgery is not presumed, it must be proved by clear, positive, and convincing evidence and the burden of proof lies on the party alleging forgery.
Further, as gathered from the March 28, 2014 Joint Resolution, the fact of Cambe, acting on his own as a public officer, amassing or acquiring ill-gotten wealth amounting to at least Fifty Million Pesos (P50,000,000.00) through any of the means provided under the plunder law or acting in violation of RA 3019 has not been demonstrated.
The Ombudsman simply relied heavily on the statements of Luy, Sula, and Suñas, who confessed to having conspired with Napoles in executing this scheme. From their statements, the Ombudsman pieced together the participation of Revilla, Cambe, and the other petitioners. Thus, Cambe asserts that the whistleblowers' statements cannot be used against him under the res inter alios acta rule.
Respondents, through the OSG, claim that the case against Cambe fall under the exception to such rule.
I am unable to agree. The exception to the res inter alios acta rule, as earlier indicated, in Section 30 of Rule 130 provides:Section 30. Admission by conspirator. - The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.x x x x
The requisites to bring a given set of facts under the exception to the res inter alios acta rule were not met in the present case. Consider:
First, the alleged conspiracy has yet to be established by competent evidence. Except for the whistleblowers' admissions/statements, no other evidence was adduced to show that Cambe agreed to commit plunder or any crime. In fact, these statements heavily relied upon do not even establish Cambe's participation in the scheme or imply any wrongdoing on his part. The PDAF documents made much of by respondents are tainted with falsehood, as the whistleblowers themselves admitted, and can hardly be viewed to be independent and credible evidence to establish said conspiracy.
The fact that some of the PDAF Documents Cambe purportedly signed were notarized is of no moment in light of the admissions made by the "whistle-blowers" that they themselves did the "notarization." In his Karagdagang Sinumpaang Salaysay dated September 12, 2013, Luy admitted that Napoles' employees kept the dry seals and notarial registers of several notary publics and used them to "notarize" the PDAF Documents:
x x x x
Hence, the PDAF Documents by themselves are not reliable evidence of Cambe's complicity in the conspiracy to funnel funds out of the PDAF.
Second, Luy, Sula, and Suñas' admissions pertain to their own acts in perpetrating the scheme Napoles designed. This includes the forging and falsification of official documents to make it appear their issuance was authorized by legislators and their staff Any alleged participation of Cambe as related to by the whistleblowers is hearsay considering that their supposed knowledge as to Cambe's role has Napoles, as source.
Moreover, Cambe's alleged receipt of P224,512,500.00 for Revilla and 5% for himself from the years 2006 to 2010, which purportedly represent their commissions, "rebates," or "kickbacks" for endorsing Napoles' NGOs was never corroborated by any independent evidence aside from the whistleblowers' testimonies. The business ledgers Luy submitted cannot be considered as such independent evidence since they are still based on Luy's statement. The allegation made by Cunanan of the TRC in his counter-affidavit pertaining to his phone conversation with Cambe and Revilla, has not been corroborated and does not establish any wrongdoing on the part of Cambe or Revilla.
Finally, public respondents never refuted the fact that these statements were made after the purported conspiracy had ceased. Luy, Sula, and Suñas only executed their respective admissions/statements sometime in September 2013, long after they have completed the alleged scheme.
What may be taken as independent evidence gathered during the FIO and the NBI's investigations consisted of endorsement letters, MOAs, and other documentation. They are of little evidentiary value, however, as they have been shown to have been falsified and forged by Luy, Sula, and Suñas upon Napoles' instructions. The COA report which found PDAF projects to be inexistent or have never been implemented is also insufficient as to Cambe, as his alleged participation is predicated on the forged indorsement letters, MOAs, and other documents. Even the MOAs allegedly executed by the NGOs, the implementing agencies, and Cambe as representative of Revilla, were admitted to have been "notarized" by Napoles' cohorts, not by legitimate notaries. Owing to this aberration, the MOAs do not enjoy the presumption of regularity and cannot be considered to be credible evidence to establish probable cause against Cambe.
Aside from the whistleblowers' own admission of forgery, handwriting experts Azores and Pagui had evaluated the authenticity of the PDAF documents and had determined that the signatures on the PDAF documents were not made by one and the same person. The testimonies of these experts cannot simply be swept aside by mere resort to legal arguments, but must be addressed and refuted by superior contrary evidence. Until then, the shifted burden to establish the authenticity of the documents rests with public respondents. The evaluation by the Special Panel of Investigators as to such authenticity would not, in context, suffice to overturn the expert testimonies of Azores and Pagui since the Special Panel is not experts in the field of handwriting analysis.
The Ombudsman's selective appreciation of certain critical testimonial evidence is a badge of grave abuse of discretion. She, for instance, accepted as gospel truth the accusatory statements of Luy, Sula, and Suñas insofar as the alleged participation of Revilla and Cambe in the scam is concerned, but in the same breath disregarded their admission of forgery and fabrication of the PDAF documents. In fine, the Ombudsman viewed as true those portions of the whistleblowers' statements which would support the prosecution's version despite contrary evidence presented by petitioners.
Considering the apparent whimsical and capricious approach thus taken by the Ombudsman, I submit that this Court should have exercised its power of judicial review. Tolerating the practice of establishing probable cause based on forged or questionable documents would expose the criminal justice system to malicious prosecution. It will create a dangerous precedent. It will encourage unscrupulous individuals to file trumped up charges based on fictitious, spurious, or manipulated documents. Malicious lawsuits designed to harass the innocent will proliferate, in clear violation of their rights enshrined by no less than the Constitution. This, I cannot allow.
In the evaluation of the evidence the probability of flight is one other important factor to be taken into account. The sole purpose of confining accused in jail before conviction, it has been observed, is to secure his presence at the trial. In other words, if denial of bail is authorized in capital cases, it is only on the theory that the proofbeing strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the jury. Hence, the exception to the fundamental right to be bailed should be applied in direct ratio to the extent of the probability of evasion of prosecution.Thus, in this Court's July 12, 2016 Resolution in Enrile,13 the Court stated that the right to bail "should be curtailed only if the risks of flight from this jurisdiction were too high," taking into consideration circumstances such as the accused's past and present disposition of respect for the legal processes, the length of his public service, and his individual public and private reputation, thus:
The possibility of escape in this case, bearing in mind the defendant's official and social standing and his other personal circumstances, seem remote if not nil.
Secondly, the imputation of "preferential treatment" in "undue favor" of the petitioner is absolutely bereft of basis. A reading of the decision of August 18, 2015 indicates that the Court did not grant his provisional liberty because he was a sitting Senator of the Republic. It did so because there were proper bases - legal as well as factual - for the favorable consideration and treatment of his plea for provisional liberty on bail. By its decision, the Court has recognized his right to bail by emphasizing that such right should be curtailed only if the risks of flight from this jurisdiction were too high. In our view, however, the records demonstrated that the risks of flight were low, or even nil. The Court has taken into consideration other circumstances, such as his advanced age and poor health, his past and present disposition of respect for the legal processes, the length of his public service, and his individual public and private reputation.Given these precedents, this case should raise questions about whether the Cambe is a flight risk who will jump bail should they be provisionally released. I maintain that Cambe is not. To recall, Cambe surrendered within hours after the Sandiganbayan issued a warrant for his arrest. Four (4) years have passed since trial in the plunder case ensued, without any report of any misdeed or attempts to escape on his part. Clearly, Cambe cannot be categorized as being the same as those who usually jump bail, shadowy characters mindless of their reputation in the eyes of the people for as long as they can flee from the retribution of justice. Thus, Isubmit that his application for bail should have been considered and granted by the Sandiganbayan.
The majority sustained the Ombudsman's finding of probable cause to indict Revilla for Plunder and violation of Sec. 3 (e) of RA 3019, for supposedly amassing ill-gotten wealth by allegedly misappropriating, or supposedly receiving commission for allowing the misappropriation of, the PDAF in conspiracy with and/or by giving unwarranted benefit to Napoles and her cohorts. As I have previously stated, I cannot concur with the majority opinion.Accordingly, I vote that the Court resolve to GRANT the petitions in G.R. Nos. 218235 and 219162 and ORDER the Sandiganbayan to provisionally release Richard Cambe upon his posting of a cash bond in an amount to be set by the Sandiganbayan and RECALL the writ of preliminary attachment issued against Senator Ramon "Bong" Revilla in Criminal Case No. SB-14-CRM-0240. Revilla is not barred from availing his right to bail.
A look at the evidence that the complainants had presented demonstrates that there is nary any competent and relevant evidence that can constitute as basis for the finding of probable cause against Revilla.
Ruling in favor of the complainants, the Ombudsman sweepingly concluded that Revilla conspired with Napoles and her cohorts to amass ill-gotten wealth at the expense of the State, specifying Revilla's role in the alleged conspiracy as follows:
x x x x
To support such conclusion, the Ombudsman cited the counter-affidavits of Revilla's co-respondents and the whistleblowers' bare testimonies, viz.:
x x x x
Notably, the pieces of evidence relied upon by the Ombudsman do not provide sufficient basis for even a prima facie finding of probable cause to believe that Revilla negotiated and agreed with Napoles on: (i) the list of projects to be chosen by the lawmaker; (ii) the corresponding IA that would implement the project; (iii) the project cost; (iv) the Napolescontrolled NGO that would implement the project; and (v) the amount of commission or kickback which the lawmaker would receive in exchange for endorsing the NGO. Indeed, the Ombudsman's affirmation of these allegations stands on mere inferences and presumptions.
What is certain is that the Ombudsman surmised Revilla's involvement with the PDAF scam from the following: (1) his purported signatures appearing in several documents endorsing the NGOs affiliated with Napoles; (2) the testimonies of the so-called "whistleblowers"; and (3) the Counter-Affidavits of some of Revilla's co-respondents. As will be discussed, these are neither relevant nor competent, and do not constitute sufficient bases to sustain the finding of probable cause to subject Revilla to continuous prosecution.
The PDAF Documents
By the PDAF documents, Revilla supposedly coerced the IAs to choose the Napoles NGOs to implement the projects identified by Revilla. The Ombudsman should have been more than wary in accepting such allegations since Revilla, as a member of Congress, was without authority to compel officials or agencies of the executive branch to act at his bidding. The IAs, in fine, simply do not come under the jurisdiction of the Senate, let alone senators. In fact, free from the legislature's control, the IAs are mandated by law to conduct a public bidding in selecting the NGOs that would implement the projects chosen by the legislator.
x x x x
In a word, any endorsement made by Revilla does not bear any value that could have compelled the endorsee IA to benefit a Napoles controlled NGO. The choice of the NGO made by the IA, without complying with RA 9184 and similar laws, falls on the IA alone. This is apparent from the very words of the NBI Complaint x x x.
x x x x
As Revilla maintained all along, his involvement/participation in the release of his PDAF was limited only to the identification and selection of projects or programs listed in the GAA and communicating such selection to the Chair of the Senate Committee on Finance and the Senate President. Any endorsement made by him does not and cannot sway these IAs to act per his will and contrary to legal requirements. It is, therefore, perplexing that Revilla's involvement in the PDAF scam is hinged on apparently worthless "endorsements" of Napoles-controlled NGOs.
Further, the Ombudsman ought to have exercised caution especially since the "whistleblowers" no less admitted to foaing the lawmakers' endorsements of Napoles' NGOs to the IAs along with all other PDAF Documents. Suñas testified that they prepared these endorsement letters, upon which Revilla is now being indicted. x x x x
x x x x
The fact of having falsified or forged the signatures on the PDAF Documents was again mentioned by Suñas in her own Sinumpaang Salaysay dated November 5, 2013, thus:
x x x x
During the September 12, 2013 Senate Blue Ribbon Committee, Luy also admitted forging the signatures of lawmakers:
x x x x
Luy restated his testimony in his Karagdagang Sinumpaang Salaysay dated September 12, 2013, where he admitted falsifying documents and forging signatures of legislators and their chiefs of staff, viz.:
x x x x
Not to be overlooked are the findings of handwriting experts, Rogelio G. Azores and Atty. Desiderio A. Pagui. The two were one in saying that the signatures appearing above Revilla's name on the PDAF Documents were not his. Mr. Azores, in particular, concluded:
The questioned signatures above the printed name Hon. Ramon Revilla, Jr., Ramon "Bong" Revilla, Jr., Ramon Revilla, Jr., on one hand and the standard signatures above the printed name Ramon "Bong" Revilla, Jr., on the other hand, were not written by one and the same person.
Atty. Pagui similarly found the signatures above Revilla's name on the PDAF Documents as not belonging to the latter. Atty. Pagui's conclusion after examining the signatures on the PDAF documents and comparing them with Revilla's standard signatures categorically declared that the signatures on the questioned documents were not affixed by Revilla, viz.:
x x x x
In fact, even a cursory glance at some of the PDAF Documents questioned by Revilla reveals a forgery so obvious as to be remarkably noticeable to the naked eye of an ordinary person. A prime example is the "endorsement" letter addressed to Gondelina Amata of the NLDC dated October 23, 2009, supposedly signed by Revilla. Compared to the standard signatures submitted by Revilla, the signature contained therein lacks the cursive flourishes of his true signatures and instead contains sharp and blunt strokes. Similarly noticeable is the variance of the letterheads used in these various endorsement letters, with some containing supposed bar codes of Revilla's office, others simply a number.
Respondent Ombudsman, however, makes much of the letter dated July 20, 2011 Letter addressed to COA Assistant Commissioner Cuenco, Jr., wherein Revilla supposedly confirmed the authenticity of his and Cambe's signatures on the PDAF documents. Upon closer examination of the said letter, however, Mr. Azores found that even the said letter is spurious. He noted, thus:
x x x x
The same finding was made by Atty. Pagui with respect to the same July 20, 2011 Letter. He observed:
x x x x
At the very least, the Azores and Pagui findings should have impelled the Ombudsman to consider the veracity of the signatures on the PDAF documents given that these experts' findings uniformly detail discrepancies between the signatures in the PDAF documents and Revilla's admitted genuine specimens of writing. That the Ombudsman failed to even require NBI handwriting experts to study the questioned signatures renders the immediate dismissal of the two handwriting expert's certifications highly suspect. Where the genuineness of the documents is crucial to the respondents' defense, it is more prudent, as stressed in People v. Agresor, to allow the opinion of handwriting experts:
The task of determining the genuineness of the handwriting would have been made easier had an expert witness been employed to aid the court in carrying out this responsibility. The records show that counsel for the accused did ask the court for time to file a motion so that the handwriting may be submitted to the National Bureau of Investigation (NBI) to ascertain its authenticity. Such motion was, however, denied by the court, ruling that The Court itself can determine whether or not that handwriting is the handwriting of the private complainant.
x x x x
It is true that the opinion of handwriting experts are not necessarily binding upon the courts, the expert's function being to place before the court data upon which the court can form its own opinion. Ultimately, the value of the expert testimony would still have to be weighed by the judge, upon whom the duty of determining the genuineness of the handwriting devolves. Nevertheless, the handwriting expert may afford assistance in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. There is no doubt that superior skills along these lines will often serve to direct the attention of the courts to facts, assent to which is yielded not because of persuasion or argument on the part of the expert, but by their own intrinsic merit and reasonableness.
As there was a dispute regarding the genuineness of the handwriting, it would have been more prudent if the trial court allowed the presentation of a handwriting expert by the defense. The denial of the request for time to file a motion to have the handwriting examined in effect rendered the right of the accused to have compulsory process to secure the production of evidence in his behalf nugatory.
Being uncontroverted and, in fact, confirmed by the complainants' witnesses, I submit that this forgery of Revilla's signatures and the falsification of the PDAF Documents should have dissuaded the Ombudsman from filing the Informations against Revilla.
Certainly, the finding of probable cause to indict a person for plunder cannot be based on admittedly falsified documents. While probable cause falls below proof beyond reasonable doubt in the hierarchy of quanta of evidence, it must nonetheless be supported by sufficient, credible and competent evidence, i.e., there should be facts and circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the crime with which he is charged. x x x
Testimonies of the Co-Respondents
Absent any credible proof of Revilla's actual link or participation in the alleged scheme to divert his PDAF to Napoles' NGOs, the Ombudsman should likewise not have accepted hook, line, and sinker any testimony of a participant in the supposed conspiracy.
It is basic that an extrajudicial confession binds only the confessant or declarant and is inadmissible against his or her co-accused. This basic postulate, an extension of the res inter alios acta rule, is embodied in Section 28, Rule 130 of the Rules of Court x x x.
Under the rule, the testimony made by the confessant is hearsay and inadmissible as against his co-accused even during the preliminary investigation stage. x x x
The exception to the above rule, the succeeding Section 30 of Rule 130, requires foremost, the existence of an independent and conclusive proof of the conspiracy and that the person concerned has performed an overt act in pursuance or furtherance of the complicity.
As discussed above, besides the admittedly falsified and forged PDAF documents, there is no concrete proof showing that Revilla pulled off any "overt act" in furtherance of the supposed conspiracy with Napoles. Other than saying that without Revilla, the scheme would have supposedly failed, the Ombudsman has been unable to point to concrete set of facts to support her conclusion as to the complicity of Revilla to the conspiracy in question. Thus, the conclusion reached by the Ombudsman falls short of the threshold requirement that conspiracy itself must be proved as positively as the commission of the felony itself. The quantum of evidence required is as should be, as conspiracy is a "facile device by which an accused may be ensnared and kept within the penal fold."
For this reason, I submit that the testimonies of Revilla's corespondents cannot be taken against him. Yet, the Ombudsman repeatedly and freely cited the previously withheld counter-affidavits of Revilla's corespondents in finding probable cause to indict him for Plunder and violation of Section 3 (e) of RA 3019.
The reliance on these previously suppressed testimonies of Revilla's co-respondents to conjure up probable cause against him is not only violative of the res inter alios acta rule, worse, it desecrates the basic rule of due process.
To recall, the counter-affidavits of Revilla's co-respondents, in which the foregoing statements were contained, were not furnished to Revilla before the Ombudsman rendered the March 28, 2014 Resolution despite Revilla's Motion to be Furnished. In denying the Motion, the Ombudsman held that it had no basis to grant the motion and cited Artillero v. Casimiro. But Artillero is not even applicable to the case. First, in Artillero, it was the complainant who claimed denial of due process when he was not furnished with a copy of the counter-affidavit of the accused. Here, it is the petitioner, as accused, requesting for the counter-affidavits of his co-respondents. Second, the complainant in Artillero requested a copy of the counter-affidavit of the accused not because he wanted to answer the counter-charges against him, such as what petitioner intended to do, but because he wanted to file a reply lest his complaint is dismissed for insufficiency of evidence.
After denying Revilla's Motion to be Furnished and his Motion for Reconsideration, the Ombudsman would suddenly turn around, find Revilla's request in order, and allow him to be furnished copies of the counter-affidavits of some his co-respondents.
In a bid to justify her initial refusal to provide Revilla with subject affidavits, the Ombudsman stated that Revilla was anyway eventually furnished the desired documents before the rendition of the assailed June 4, 2014 Joint Order (albeit after the March 28, 2014 Joint Resolution) and yet chose not to submit his comment within the time given him. Upon this premise, Revilla cannot, as the Ombudsman posited citing Ruivivar v. Office of the Ombudsman, be heard about being denied due process having, as it were, "been given ample opportunity to be heard but x x x did not take full advantage of the proffered chance."
I believe that that the Ombudsman has misread Ruivivar, which, at bottom, is not consistent with the essence of due process: to be heard before a decision is rendered. In Ruivivar, petitioner Ruivivar's motion for reconsideration that paved the way for his being furnished with copies of the affidavits of private respondent's witnesses came after the Ombudsman rendered a decision. In the present case, however, Revilla's request to be furnished with his co-respondents' counter-affidavits preceded the Ombudsman's issuance of her probable cause-finding resolution. Clearly, the accommodation accorded Revilla was belated, i.e., after the denial of his motion for reconsideration and way after the issuance of the resolution finding probable cause against him. There lies the crucial difference.
It appears that the Ombudsman issued the May 7, 2014 Joint Order only as an afterthought, as an attempt to address the defects of the preliminary investigation the OOMB conducted on petitioner. However, such Order is of little moment as any comment that Revilla would file would no longer have any bearing precisely because the Ombudsman already issued the Joint Resolution on March 28, 2014 finding probable cause against them.
Worse, the Court cannot see its way clear on why the Ombudsman limited the grant to few counter-affidavits when it could have allowed Revilla access to all counter-affidavits and other filings of his corespondents. The Ombudsman conveniently justified the selective liberality on the notion that only these counter-affidavits contain allegations that tend to incriminate Revilla to the scam. Yet, as pointed out by Revilla, due process does not only cover the right to know and respond to the inculpatory evidence, but also the concomitant right to secure exculpatory evidence. The mere fact of suppression of evidence, regardless of its nature, is enough to violate the due process rights of the respondent.
Indeed, Morfe v. Mutuc teaches that the due process requirement is met if official action is free from arbitrariness. But, the Ombudsman's denial and limitation of Revilla's Motion to be Furnished, were arbitrary and unreasonable for there was nothing improper or irregular in Revilla's request. And it cannot be overemphasized in this regard that the requesting petitioners offered to have the requested documents photocopied at his expense. Verily, these limitations coupled with her use of the counter-affidavits requested against Revilla, without giving him a prior opportunity to know each and every allegation against him, whether from the complainants and their witnesses or his co-respondents, are random, unreasonable, and taint the Ombudsman's actions with grave abuse of discretion for violating the sacred rule of due process. As such, the statements contained in the Counter-Affidavits of Revilla's co-respondents cannot be used to find probable cause to indict him.
In Duterte v. Sandiganbayan where the petitioners therein were not sufficiently apprised of the charges against them during preliminary investigation, this Court ordered the dismissal of the criminal case filed against them x x x.
In like manner, in the present case, Revilla was not sufficiently apprised of the entirety of the allegations against him before the probable cause finding Resolution of March 28, 2014 was rendered by the Ombudsman. Consequently, his right to due process was denied and I believe that this Court is duty-bound to reverse the Ombudsman's action that was tainted with grave abuse of discretion.
Even assuming arguendo that the counter-affidavits of Revilla's co-respondents are admissible, the testimonies contained therein are inadequate to engender the probability that Revilla was a knowing participant in the alleged scheme to divert the PDAF. Buenaventura simply testified in general terms that she confirmed the authenticity of the authorization given by Revilla without specifying how she made such confirmation or providing the details of the documents and transactions involved. In like manner, Sevidal broadly claimed that Revilla, through Cambe, was responsible for "identifying the projects costs and choosing the NGOs" but did not provide the factual details that justified her claim. Figura's declaration of having no power to "simply disregard the wishes of [Revilla]" is a clearly baseless assumption.
Meanwhile, a closer look of Cunanan's testimony, which was a critical part of the Ombudsman's Resolutions, bares the infirmity of his claim. While he could have easily asked for a written confirmation of the authorization given by Revilla to Cambe, Cunanan himself admitted that he, instead, supposedly sought verification over the telephone. Yet, an audio recording of the alleged telephone conversation was not presented or even mentioned. Not even a transcript of the alleged telephone conversation was attached to Cunanan's Counter-Affidavit.
Section 1, Rule 11 of the Rules on Electronic Evidence provides that an audio evidence, such as a telephone conversation, is admissible only if it is presented, explained, or authenticated. x x x x
Given that no audio evidence of the telephone conversation was presented, much less "identified, explained or authenticated," the occurrence of the alleged telephone conversation is rendered highly suspect, if not improbable, and any testimony thereon is inadmissible and of no probative value.
But granting, arguendo, that Cunanan did call Revilla's office, it still begs the question of how he could have recognized or confirmed the identity of the person he was speaking with over the phone and not faceto-face. There is no indication, and Cunanan never even hinted, that he was closely familiar with Revilla's voice that he can easily recognize it over the phone in a single conversation.
This Court had previously declared that the person with whom the witness was conversing on the telephone must first be reliably identified before the telephone conversation can be admitted in evidence and given probative value. x x x
x x x x
In this case where there is no authentication or identification of the person with whom Cunanan was conversing on the telephone, Cunanan's testimony is inadmissible and of no probative value.
In sum, the Ombudsman should have closely scrutinized the testimonies of the alleged participants in the supposed conspiracy. This holds especially true for testimonies that not only try to relieve the affiant from responsibility but also seek to pass the blame to others. The Ombudsman, however, utterly failed to do so and simply accepted the corespondents' declarations as the gospel truth, unmindful that a neglect to closely sift through the affidavits of the parties can still force the unnecessary prosecution of frivolous cases. By itself, this neglect constitutes a grave abuse of discretion, which should be reversed by this Court.
Whistleblowers' Testimonies
Anent the elements of the crimes charged, the gravamen of the crime of Plunder is the accumulation by the accused of ill-gotten wealth amounting to at least Fifty Million Pesos (P50,000,000.00). In a bid to satisfy this element against Revilla, the Ombudsman heavily relied on the testimonies of the whistleblowers, Luy, Sula, and Suñas. Yet, none of the witnesses stated that they deposited money representing the alleged commissions to any of Revilla's accounts. Not one of them testified that they personally handed money or saw anyone handing/delivering money to Revilla as commission/kickback.
The closest thing passed as proof by the complainants is the private and personal records of Luy. But, even Luy himself admitted his lack of personal knowledge of Revilla's involvement in the PDAF scam, much less of the former senator receiving money from it. x x x
x x x x
The foregoing at once betrays the hearsay nature of Luy's testimony against Revilla. The hearsay nature of Luy's testimony regarding Revilla's receipt of money from his PDAF is again highlighted in Luy's Sworn Statement of November 8, 2013, viz.: x x x
Similarly, the testimony given by Suñas on September 12, 2013 regarding the supposed receipt by Revilla of a part of his PDAF is not based on her own personal knowledge. x x x
Given the hearsay character of the whistleblowers' testimonies, these are devoid of any intrinsic merit, dismissible as without any probative value.
At most, the whistleblowers claimed that money was handed to Cambe. Yet, there is nothing to prove that Revilla received the said money from Cambe or that Cambe's alleged receipt of the said money was under his authority or instruction.
For this and for the fact that there is absolutely nothing competent and relevant that can sway a reasonable man to believe that Revilla had participated in the PDAF scheme, I vote for the reversal of the Ombudsman's finding of probable cause to indict Revilla for plunder and violation of Section 3 (e) of RA 3019 on account of grave abuse of discretion.
It must not be forgotten that the crimes involved in these cases are Plunder and violation of Section 3 (e), RA 3019-two grave charges that can strip a man of his good name and liberty, as in this case. The Ombudsman should not have found probable cause to indict Revilla given that there is nothing but falsified documents, hearsay testimonies and declarations barred by the res inter alios acta that support the complaints. Worse, the Ombudsman violated the due process protection of the Constitution in citing affidavits and testimonies not previously furnished Revilla. Without a doubt, the Assailed Resolutions, insofar as it found probable cause against Revilla, were tainted with grave abuse of discretion.
Endnotes:
1 G.R. Nos. 212014-15, 212427-28, 212694-95, 212794-95, 213477-78, 213532-33, 213536-37 & 218744-59, December 6, 2016.
2People v. Bodoso, 446 Phil. 838 (2003).
3 See Spouses Valderama v. Macalde, 507 Phil. 174 (2005).
4 Supra note 2.
5Rollo (G.R. No. 218232), Vol. 7, p. 2622. Emphasis supplied.
6 275 Phil. 146 (1991).
7 Ibid.
8Pobre v. Court of Appeals, 501 Phil. 360 (2005).
9 Ibid.
10 G.R. No. 214300, July 26, 2017.
11 Supra.
12 G.R. No. L-6352, January 29, 1953, cited in People v. Hernandez, 99 Phil. 515 (1956).
13Enrile v. Sandiganbayan (Third Division), G.R. No. 213847 (Resolution), July 12, 2016.
14 G.R. Nos. 212014-15, 212427-28, 212694-95, 212794-95, 213477-78, 213532-33, 213536-37 & 218744-59, December 6, 2016.