PROSECUTORS for the Ombudsman withdrew amendments to the charge sheet for plunder against Senator Jinggoy Estrada after the Sandiganbayan Fifth Division warned that the changes would prompt it to recall the warrant for his arrest.
In a hearing Friday, the anti-graft court warned Prosecutor Danilo Lopez that amending the charge sheet would cause it to recall its finding of probable cause against Estrada, and leave it no choice but to order his release from detention.
Lopez had earlier explained to the court that the amendments would emphasize that Estrada rather than Janet Lim Napoles, was the mastermind of the pork barrel scam.
It was the second time that prosecutors backtracked in the plunder cases against the three opposition senators, Estrada, Ramon Revilla Jr., and Juan Ponce Enrile. On Thursday, the prosecutors withdrew a similar amendment in the charge sheet against Revilla.
At Friday’s hearing, Associate Justice Roland Jurado, chairman of the Fifth Division, cautioned the prosecutors against proceeding with the changes.
“If I were you, I would no longer amend the information. We are just warning you of its effect. The accused could be released,” Jurado told Lopez.
Jurado said the justices issued the arrest warrant based on the original information filed.
“[T]he amendment... means you are withdrawing the original information. If you withdraw that, the accused Estrada will be released,” Jurado said.
In the amendments, prosecutors sought to change the word “conspiracy” in the original information to “collaboration.”
But Sandiganbayan Associate Justice Alexander Gesmundo took the prosecutors to task for seeking to change the word.
“Those are two distinct legal concepts. Conspiracy is the ‘act of one is the act of all.’ Connivance is different from conspiracy,” Gesmundo said.
“Why change the word ‘conspiracy’ in the original information to ‘collaboration. Every word in the information should be precise,” he said.
While Lopez argued that the amendment was “just a matter of form that does not change the substance of the information,” he later heeded the court’s warning and withdrew the manifestation to amend the charge sheet.
The Ombudsman’s withdrawal emboldened the defense to push for the granting of the senator’s motion for bail.
“The Ombudsman’s blunder gave the Estrada camp a better chance for the Sandiganbayan Fifth Division to grant Estrada’s petition for bail,” said the senator’s lawyer, Alexis Abastillas-Suarez.
“This bolstered our position all along that the evidence against Senator Estrada is weak. We are hopeful for the granting of our petition for bail,” Suarez said.
Suarez said the original information was defective because it had no evidence of Estrada’s direct participation in the pork barrel scam.
Napoles’ lawyer Stephen David expressed even more confidence and said he expects the plunder case against his client would be dismissed by Monday, when she is scheduled for arraignment, along with Estrada and others.
“On Monday when she is arraigned and we contest the defective and vague information, her case will be dismissed because I believe she committed no plunder,” David said.
David added that there is “no element of plunder if it was the private individual that amassed ill-gotten wealth as stated in the original information.”
“The prosecutors should be ashamed for filing a defective information,” he said.
The court submitted for resolution the petitions for bail filed by Estrada, Napoles, and Raymund De Asis, Napoles’ driver.
During the hearing, newly-appointed Associate Justice Ma. Theresa Dolores Gomez Estoesta sat quietly listening to the exchange of her co-justices and the lawyers from all sides.
Estrada filed his motion for bail hours after he surrendered to authorities Monday.
Estrada is facing plunder and graft charges in connection with the alleged pork barrel scam where he accused of pocketing P183.7 million in public funds.
A similar amendment to the charge sheet against Enrile was also submitted to the Sandiganbayan Third Division.
The Third Division, presided by Associate Justice Amparo Cabotaje-Tang, has yet to find probable cause to merit issuing a warrant for Enrile’s arrest.
Based on the amended information, Estrada “(exerted) undue pressure on the implementing agencies to favorably act on his endorsements to the NGOs (non-government organizations) of Napoles.”
This was done by Estrada purportedly to “ensure that his PDAF (Priority Development Assistance Funds) be in the possession and control of Napoles and her cohorts which undue pressure and endorsements were made in exchange for kickbacks, percentage or commissions, thereby enriching himself…”
Dennis Cunanan, the director general on-leave of the Technology Resource Center (TRC), had testified before the Senate Blue Ribbon Committee that Estrada and Revilla called him up personally to make sure that their pork barrel was funneled to Napoles’ bogus foundations.
The Ombudsman tagged TRC and other implementing agencies as conduits between Napoles and the lawmakers.
The amended charge sheet also said Estrada is a “public officer” who “by himself or in connivance with” his co-accused public officers and private individuals amassed ill-gotten wealth.
It also added that Estrada “collected directly or indirectly” not only kickbacks but even “percentages.”
The Ombudsman motion also sought to amend the information to say Napoles and her cohorts were “private individuals” who collaborated with the senators in amassing ill-gotten wealth.
The prosecutors also sought to delete the phrase in the original information that read “enabling Napoles to misappropriate the Priority Development Assistance Funds (PDAF) proceeds for her personal gain.”
Despite the apparent setbacks, the prosecution panel said the original information could stand.
David, Napoles’ lawyer, had earlier asked the anti-graft court to quash the information and to recall the warrant of arrest against his client, saying that under the law, only government officials can be charged with plunder.
Despite what appeared to be a rough start for the prosecution, Justice Secretary Leila de Lima said she was confident that the case filed against Revilla was strong.
Nonetheless, De Lima said she was stunned by the decision of the anti-graft court to junk the bid of the Ombudsman to amend the charge sheet against Revilla.
De Lima said that under the rules of court, the prosecution has the right to amend the information against an accused before his arraignment. She added that such an amendment was not a sign of a weak case.
“I think the Ombudsman has not changed the theory of the case, the essence, (and) purpose of the Ombudsman. The Ombudsman wants to amend the information because it wants to clarify any ambiguity that may raise questions from counsels of the accused,” she said.
“As to whether or not it affects strength of the case, I don’t think so,” she said.
De Lima also denied the claims of ousted President and now Manila Mayor Joseph Estrada that she had prejudged the case of his son, Senator Estrada.
“I respect people and their impressions of me. I can’t force them to change. I don’t know what President Erap meant by that. What exactly did I say? With due respect, Mayor Erap, I don’t think I’ve said anything recently that prejudges the case. What I say everytime I’m asked about the cases is if I’m confident, and my consistent answer is yes, we are confident. We would have not transmitted that to the Ombudsman if we were not convinced of the strength of evidence,” she said. – With Joel E. Zurbano