Disagreeing with the dismissal by the majority of the plunder case against former President Arroyo and co-accused, four justices are in agreement on the existence of conspiracy, saying that the Philippine Charity Sweepstakes Office fund releases diverted to the Office of the President would not have been possible without GMA’s approval. The dissenters include Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Associate Justices Marvic Leonen and Benjamin Caguioa with Associate Justice Estela Perlas-Bernabe concurring in part and dissenting in part.
Chief Justice Sereno, in her straightforward dissenting opinion, opines that there existed a conspiracy among GMA, PCSO Budget Officer Benigno Aguas, and PCSO general manager Rosario Uriarte. According to her, conspiracy was sufficiently established through repeated approvals of GMA on the additional confidential intelligence funds requests in the course of three years. Sereno believes that “the prosecution has successfully established the conspiracy scheme through the various irregularities in the CIF disbursement. These irregularities or red flags clearly spell a conspiracy to commit plunder when the amounts involved and the processes of requesting, approval, and liquidating the amounts are holistically considered.”
Sereno draws attention to the testimony of witness Aleta Tolentino who disclosed that there were several irregularities in the CIF requests and disbursements within three years of GMA’s term. Red flags were clearly apparent in the approval, disbursement and liquidation of the CIF funds, including, among others, missing funds and their apparent misuse. Moreover, the prosecution adduced enough evidence to show that the final destination of the amount was linked to GMA and her Office as admitted by a co-conspirator. In other words, GMA had an indispensable role in the scheme of things.
In disagreeing with the ponencia, Sereno further says that GMA had control, not only over the PCSO, but also over the intelligence funds, as clearly mandated by Letter of Instruction No. 1282 which sheds light on the role of the President when it comes to the expenditure of intelligence funds. She points out the existence of ample evidence to show that Uriarte gained material possession of the amounts through cash advances facilitated by the repeated and unqualified approval of the requests by GMA who through the Office of the President used a large portion of the amount received as cash advance.
Associate Justice Marvic Leonen, for his part, also agrees with Sereno on the existence of conspiracy. His dissent is anchored on the premise that GMA, as a highly intelligent and experienced President, was aware that “the power to increase the allocation and, therefore, disbursement of additional CIF of the PCSO) was hers alone.” She was aware that this power was discretionary on her part. She did not have to approve any request for increase if it was not properly supported by adequate funds and the enumeration of specific activities.”
Further, he states that GMA, as president, was also aware of her duty under the Constitution and our laws that all the financial controls supported by audit observations be complied with to ensure that all funds be disbursed in a regular manner and for legitimate purposes. She knew that it was her duty to scrutinize requests for increases in these funds. Besides, increases in the allocation of CIF of PCSO were made possible only with the approval of GMA as President. He also postulates, contrary to the majority opinion, that there is no need for a “main plunderer.” Based on his interpretation, Section 2 of the Plunder Law does not require plunder to be centralized, whether in terms of its planning and execution, or in terms of its benefits.
Citing the evidence presented by the prosecution, Leonen notes that the prosecution has adequately demonstrated – through former President Arroyo’s handwritten notations- that she personally approved PCSO General Manager Rosario C. Uriarte’s “requests for the allocation, release and use of additional [Confidential and Intelligence Fund.]” Moreover, the prosecution, he adds, was able to present evidence to show that Arroyo personally approved the release of additional CIF to the PCSO on several occasions from 2008 to 2010 by handwriting the notation “OK, GMA.” These releases, as the evidence would prove, were in excess of amounts initially allocated as such CIF and were facilitated despite PCSO’s having had to operate under a deficit. Furthermore, the prosecution has shown that Uriarte, despite not having been designated as a special disbursing officer, withdrew from the CIF solely on the strength of GMA’s approval. GMA’s culpability is further shown, according to Leonen, by the fact that officers from the Philippine National Police, the Armed Forces of the Philippines, and the National Bureau of Investigation gave testimonies to the effect that no intelligence activities were conducted by PCSO with their cooperation, contrary to Uriarte ‘s claims.
Even assuming, Leonen insists, the accused could not be convicted of plunder, there is still sufficient evidence to convict them with malversation of public funds, as penalized by Article 217 of the Revised Penal Code. Hence, trial on this score should still proceed for reception of evidence.
I am not in a position to replace the judgment of the Ombudsman in filing and prosecuting this case nor replace the judgment of the majority or dissenting Justices. I must say though that I am inclined to side with former President Arroyo on this case given that most of her co-accused have been acquitted earlier. It seems to me that the weakest evidence is against the Arroyo and it does not stand to reason for her to be convicted while the case of conspiracy against her colleagues in conspiracy with her is not proven. For this reason, in my view, the greater injustice here was committed against the former president who had to suffer years in hospital detention only to be cleared of wrong doing. This could have been prevented if she was granted bail, the denial of which added to the injustice.
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