WHAT is supposed to be a common aspiration– to end corruption in the Philippines and seek justice in the pork barrel scam — has now divided Filipinos all over the world.
At the center of the debate is the question of whether alleged mastermind of the P10-billion pork barrel scam should testify in the Senate Blue Ribbon Committee hearing.
After Department of Justice (DOJ) Sec. Leila de Lima failed to bring Napoles to the committee hearing as previously agreed upon, Committee Chairman Sen. Teofisto “TG” Guingona asked Senate President Franklin Drilon to issue a subpoena for Napoles to testify. However, Drilon chose to heed the advice of Ombudsman Conchita Morales-Carpio.
Drilon rationalized his decision, stating on his Facebook page: “While my decision appears unpopular to media, and a public eager to see Napoles grilled by the Blue Ribbon Committee, I have decided on the side of caution. I would rather err on the side of prudence.”
“What is at stake here is the ability of the Office of the Ombudsman to prosecute the PDAF misuse cases against the Napoles with dispatch and without delay. This is the principal goal of our justice system.”
Drilon pointed out, “This is not a question of which institution is ‘supreme:’ The Senate or the Office of the Ombudsman. What we must uphold is supremacy of the rule of law. There is no question that serving the ends of justice and making our justice system work is our primary objective.”
Sec. De Lima also argued that since plunder, graft and malversation charges have already been filed before the Office of the Ombudsman, “no publicity shall be made of the case, or unduly expose persons complained against to ridicule or public censure.”
In her statement, De Lima said: ‘My task is to ensure successful prosecution of these cases and to hold accountable those who have stolen the people’s money. It concerns me greatly that the public testimony of these witnesses before the Senate today may put them and their families—as well as the future of these cases—at greater risk.”
“The NBI’s case build-up is still continuing, a process that does not stop even during preliminary investigation”, she said, “Having the witnesses talk in further detail about what they know can reveal parts of our legal strategy, the identities of others who may be charged in the near future, and other matters regarded as privileged law enforcement information. “
De Lima said she is worried that this public deposition and interrogatories might compromise the integrity and effectiveness of the prosecution, when information known only to it is telegraphed in advance to those who will be charged before the courts.
She maintains that the exhaustive examination of witnesses in criminal cases is reserved for the courtroom for good reason.
“Finally, the same logic or reasoning the Ombudsman applied or invoked, when she advised the Senate against the summoning of Janet Lim-Napoles, applies and ought to apply as well to the witnesses present here today.”
Guingona counter-argued that De Lima has no power to invoke the powers of the Ombudsman, noting that what de Lima did was an attempt to undermine the power of the committee.
Guingona asked: “What is so confidential about Ms. Napoles’ possible testimony that it cannot be made under oath before the Senate Blue Ribbon Committee?”
Former Chief Justice Reynato Puno concurred with Guingona’s position.
“The Senate, thru its Blue Ribbon Committee, should uphold its right to investigate in aid of legislation. This right to investigate is a crucial component of the power to enact laws which the Constitution exclusively grants to Congress.”
Puno said this constitutional right to investigate in aid of legislation cannot be defeated nor diminished by any confidentiality rule, which is only found in the Rules of Procedure of the Office of the Ombudsman.
“An administrative rule can never negate a constitutional grant of power,” he said.
The Former Chief Justice warned that destroying this exclusive power is dangerous because “it can destroy the check and balance mechanism of governmental powers so delicately crafted in our Constitution.”
“Worse, any substantial erosion of the power of Congress to investigate in aid of legislation can lead to the impotence of Congress to enact laws.” Puno said the Senate is wrecking itself as an institution, and this, he said, “is the greatest tragedy of the [priority development assistance fund] scandal”
The United States Against PDAF or Pork Barrel System (USAP) Coalition on Wednesday asked for the resignation of Sen. Franklin Drilon as Senate President, following his decision to defer to the Ombudsman the Senate power to investigate its own peers.
They contend that Drilon’s “deference to the Ombudsman is a backward step against justice”.
In a press statement dated September 25, USAP said: “As Senate President, he should resign. He is blocking the Senate investigation under the guise of legal niceties of depending his decision on the advise of the Ombudsman. He should be ashamed of himself. He must serve the national interest of our people and our nation.”
USAP posted the question to Drilon: “Did you change your mind because plunder charges were filed against you? You and those involved in the pork barrel national scandal were entrusted by our people with the power to govern. This trust was betrayed . You should encourage the investigation, not find a way to impede it, [and] hide under the cloak of the OMBUDSMAN.”
USAP WARNED: If Congress, the Ombudsman, Sandiganbayan will not do their job, then these corrupt officials must be removed by People Power. That is the highest form of democracy!”
Meantime, a former Ombudsman employee sent me his perspective via Twitter, and said “I concur with TG.”
Explaining the preliminary stage of the investigation, he tweeted: “At preliminary investigation stage, Ombudsman cannot act as persecutor, as it sits as judge whether evidence submitted fit for trial.”
“Because of considerations of due process, Ombudsman cannot assist either accuser or accused,” he added.
He warned, though, that “if there is a flaw or hole in the evidence or argument, Ombudsman will dismiss. It cannot fix flaws anymore. Flaws can range from missing evidence to missing arguments or allegations.”
“Recently, Ombudsman issued directive that if case dismissal is based on missing evidence, case must be remanded to investigative team. This is all well and good, except their record at building cases is dismal.”
This is why he said: “It should be a parallel investigation” [Ombudsman’s and Senate Blue Ribbon Committee].
He added that the Ombudsman is professional enough not to let public opinion sway decision, and that the media speeds up the process.
He also said he understands the hesitation on the part of the Ombudsman. “Witness turning has been a huge problem since Harry Stonehill.”
“If they want to protect whistleblower identity, they’d do that now pa lang.”
He also said that the DOJ can get depositions from whistleblowers. “This is as good as court testimony, could be used in ANY court. Could be used in Senate, in Sandiganbayan. Free to government, not free to defense. No idea why it hasn’t been used.”
Fil-Am Independent International law and Human Rights Consultant Atty. Arnedo Valera, however warned against deposition for now, knowing how the knowledge and skills of lawyers can make them control the ball game.
He said the built-in process in the Blue Ribbon Committee is sufficient. “Let witnesses be subpoenaed and require them to execute affidavits under oath, and clarificatory questions asked in the open. The public and the media right now are important ingredients for people power momentum.”
Valera said these witnesses and whistleblowers can be compelled to appear but when they testify, they can claim right vs self-incrimination.
“This is where we need Sec. De Lima to cooperate with [the] Blue Ribbon [Committee], unless they are protecting somebody.”
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Gel Santos Relos is the anchor of TFC’s “Balitang America.” Views and opinions expressed by the author in this column are are solely those of the author and not of Asian Journal and ABS-CBN-TFC. For comments, go to www.TheFil-AmPerspective.com, https://www.facebook.com/Gel.Santos.Relos
