There is a looming turf war between the Office of the Ombudsman and Department of Justice on which agency has the primary authority to determine the admissibility of suspected pork barrel scam architect Janet Lim Napoles into the government’s Witness Protection Program.
Justice Secretary Vitaliano Aguirre II on Tuesday insisted that it is the prerogative of the DoJ to decide on who should be admitted into the government’s WPP, reacting to the statement made by Ombudsman Conchita Carpio-Morales that she would block Napoles’ admission as government’s state witness.
“It is the right of anybody to do anything as long as it not against the law,” Aguirre said. “But since the DoJ has the exclusive right to put a witness under the Witness Protection Program, we will exercise it if need be.”
Morales declared that as far as the prosecution panel handling the plunder, graft and malversation charges against Napoles before the Sandiganbayan is concerned, they do not find her qualified to become a state witness considering that she is one of the principal accused in the multi-billion peso scam.
“It’s up to them if they wish to reinvestigate. But as I said we are not bound by any findings over cases over which the Ombudsman has the final authority to determine whether or not there is probable cause. As the prosecution is concerned she is one of the principal alleged benefactors. Certainly the Office of Special Prosecutors [OSP] will block any attempt to make her state witness,” Morales told reporters.
Morales argued that as a principal accused and benefactor in the Priority Development Assistance Fund scam, Napoles is not the least guilty among the other respondents charged for plunder, graft and other offenses before the Sandiganbayan.
“As far as the prosecution is concerned, she [Napoles] is one of the principal alleged benefactors,” she said.
“We don’t find her to be a candidate for being a state witness,” she added.
The Makati City Regional Trial Court convicted Napoles and ordered her imprisonment at the Correctional Institute for Women in Mandaluyong City, but the appellate court recently junked the lower court’s decision.
Morales, however, insisted the Ombudsman shall have the last say if it would recommend Napoles could qualify to turn into a state witness or not.
She invoked Rule 119 of the Revised Rules of Criminal Procedures that only the court that could decide who gets qualified as state witness “upon the motion of the prosecution before resting its case.”
Aguirre, however, argued that the DoJ has the authority to make Napoles a state witness.
“All I can say is that everybody is entitled to his or her own opinion, we have the right to do things that we believe is right. But I believe that in the event that the DoJ considers making Janet Napoles a state witness, it is our prerogative under the Witness Protection Program of the DoJ,” Aguirre said.
Nonetheless, Aguirre admitted that there is no jurisprudence defining which agency has primary authority to decide on who should be admitted in the WPP involving graft related cases resolved by the DOJ and eventually turn over to the Ombudsman for prosecution.
“As far as I know since there is no jurisprudence yet on this, if you file a case before the DOJ for preliminary investigation, we have the right to determine if one of the respondents will be put under the Witness Protection Program of the DOJ. In the event that they are objecting, then let the court decide,” Aguirre said.
The Justice Secretary pointed out that during the preliminary investigation of the case, there is concurrent jurisdiction between the DOJ and the Ombudsman, but if one of the parties is willing to be put under the WPP, then that is under the exclusive jurisdiction of the DOJ since the Ombudsman has no WPP program to speak of.
However, Aguirre clarified that placing Napoles under the WPP does not automatically make her a state witness.
He said the DOJ can extend provisional protection to Napoles, while her application, if there is one, and her affidavit is being evaluated and assessed to determine on whether she is qualified or not to become a state witness.
“For us to consider a certain person to be out under the WPP, once you go to the DOJ and execute an affidavit detailing the events and that he or she want to file a case against these people, and requested that he or she be put under our protection because his or her life is in danger, then we are going to do it,” Aguirre stressed.
Admitting that his position differed with that of Morales, the DOJ chief did not discount the possibility of the controversy being brought before the Court of Appeals or Supreme Court for resolution.
“Well, it’s possible (clash). As a matter of fact, ang opinyon namin ni Ombudsman ay halos magkaiba nga,” Aguirre said, adding that in such case, then the courts can come in to clarify the issue.
Aguirre said the Ombudsman’s prerogative on the drafting of state witnesses only comes when the DOJ after conducting a preliminary investigation on the case submitted it to the Ombudsman.
Prosecutors from the Ombudsman are handling the cases of Napoles before the anti-graft court though during the time of former Justice Secretary Leila de Lima, then Justice Undersecretary Jose Justiniano was tapped by the Ombudsman to join the prosecution team in prosecuting the pork barrel related cases before the anti-graft court.
Earlier, Aguirre said that Napoles will remain in detention even if she becomes a state witness on the reinvestigation of the Priority Development Assistance Fund (PDAF) cases.
Aguirre said that this will not affect her pending plunder cases, which are non-bailable, before the Sandiganbayan.
Asked if Napoles could qualify as state witness in the possible cases that could emanate from the reinvestigation, Aguirre said that it would depend on what she has to say.
Aguirre said Napoles could be a credible government witness if she substantiate her testimonies with evidence.
“It will depend on what she says. If coupled with documents then there is no reason why she should not be credible,” he said.
Aguirre said that while several camps are pushing for Napoles to be state witness, she would have to meet the qualifications set by law – that she should not be the most guilty of the crime and that her testimony must be indispensable for the cases to stand.
He said he could only make an assessment of her eligibility once he reads her sworn statement.
“As far I know wala pang gingawang affidavit ang amin lang po dito function sa DOJ tatanggapin lang naming kung may bagong complaint siya imbestigahan under Preliminary investigation,” he said.
Aguirre explained that in cases of plunder or corruption involving a government official and a private individual, the former is considered the most guilty as per the ruling of the Supreme Court.
Meanwhile, detained Sen. Leila De Lima has branded as “misleading assertions” Aguirre’s claim that Napoles has more information to reveal in the multi-billion peso anomaly.
She assailed Aguirre for making it appear that the PDAF investigation conducted under her term as justice secretary in the previous administration was not exhaustive, and that only three (3) senators have been prosecuted.
She said Aguirre, together with Solicitor General Jose Calida who was instrumental in the acquittal of Napoles in fhe serious illegal detention charge, is merely banking on Napoles as his single source of information for his so-called new PDAF (Priority Development Assistance Fund) investigation.
Any new investigation, De Lima said, cannot rely only on the testimony of Napoles, whom she called a “polluted source,” a convicted criminal and the mastermind of the PDAF Scam.
“Any new charges should be based on documentary evidence. I doubt if Napoles will be able to produce such evidence, considering that she had no evidence to produce herself when she approached me as the DOJ Secretary with a supposedly extended list of legislators—clients,” said De Lima.
While anyone can make a list, De Lima said backing up this list with documentary evidence is another thing.
“I am highly doubtful and suspicious of this kind of investigative and prosecutorial approach of the DOJ,” said De Lima.
“All of the actions of the government in causing the acquittal of Napoles and making her a state witness bear the hallmarks of an upcoming government witch hunt,” said De Lima.
She said It is regrettable when the real criminal mastermind is exonerated and the innocent persecuted, merely in order for ‘already despotic regime’ to achieve absolute political dominance by silencing any remaining opposition with threats of persecution.
She said that the PDAF investigation conducted by the NBI during her term resulted in three (3) batches of complaints filed with the Ombudsman.
Among those recommended for prosecution are several senators and congressmen. The first batch of PDAF complaints involved Senators Jinggoy Estrada, Bong Revilla and Juan Ponce Enrile. The second batch included seven Congressmen: Salacnib Baterina, Rozzano Rufino B. Biazon, Douglas Cagas, Marc Douglas Cagas IV, Ariel Olano, Arthur Pingoy, Jr. and Rodolfo Valencia.
The third batch was filed against nine (9) legislators: Senator Gregorio B. Honasan II, and Congressmen Amado Bagatsing, Conrado Estrella III, Raymund Estrella, Manuel Ortega, Victor Francisco Ortega, Isidro Real, Jr., Rufus Rodriguez and Emmanuel Joel Villanueva (now Senator).
She said the Ombudsman has already filed cases with the Sandiganbayan against several of these legislators. These cases are progressing at this very moment.
Since Napoles is a polluted source, she said the past investigation relied on the testimonies with supporting documentary proof of whistleblower Benhur Luy and other whistleblowers who were former employees of Napoles.
“It was then apparent that Napoles was willing to implicate anyone in exchange for being discharged as a state witness and save her own skin. She was then willing to lie to avoid imprisonment,” said De Lima.
With Napoles acquittal in the serious illegal detention case under the current administration, De Lima said it appears that she has finally succeeded in closing the deal that the past administration of
Meanwhile, the 1st and 3rd divisions of the anti-graft court Sandiganbayan rejected the request of Napoles to be transferred to the detention facility of the National Bureau of Investigation (NBI), and instead ordered her moved to the regular Camp Bagong Diwa jail in Taguig. Aguirre II supported Napoles’ plea for a transfer to the NBI.