Plunder 101: Why pork scam case may take years to resolve

By Ira Pedrasa,

Posted at Jun 22 2014 07:48 PM | Updated as of Jun 23 2014 03:48 AM

MANILA -- Former Justice Undersecretary and seasoned lawyer Ramon Esguerra believes the litigation of the pork barrel scam case will take years – maybe even a decade – to resolve.

Former Chief Justice Artemio Panganiban’s theory is even more discouraging. In his column on the Philippine Daily Inquirer Sunday, he wrote: “The point is: unless innovative and creative solutions are used, the pork cases will drag on for decades to the prejudice of the innocent and the public interest.”

Esguerra explained that the case will drag on not only because of the number of accused, but also because of the volume of documents that have to be threshed out.

Add to the formula the dilatory tactics of lawyers, several instances may even trigger parties to run to the Supreme Court, he added.

The burden of proof, on the other hand, will prove real burdensome to prosecutors in the years to come. “There are predicate offenses to plunder. The prosecution needs to prove graft before plunder is given weight,” Esguerra told dzMM’s Joey Lina.

What are the issues that need to be addressed before the Sandiganbayan comes up with a verdict? Esguerra breaks down the process:

Once the prosecutors file a case, the anti-graft court needs to determine if there is probable cause or enough basis to proceed with the case.

There are three scenarios in the determination of probable cause: 1) If there is basis in the information or charge sheet, the justice can issue a warrant of arrest (like in the case of Senator Ramon “Bong” Revilla Jr.); 2) If there is no basis, the justice can dismiss outright the case; and 3) the justice may also return the information to the prosecutor if he or she feels the evidence is not enough.

Here, the justice handling the case will have to determine the probable cause even without a motion from the defense, who can, however, push to defer the determination of the probable cause. If the defense decides the court erred, the accused can already proceed to the SC even early in the case.

Revilla tried to seek the SC’s intervention to no avail. Thus, he decided on Friday to surrender even before the warrant of arrest can be served against him.

The arraignment of Revilla has been set on June 26.

Dilatory tactics

Esguerra said several strategies may already be introduced before the arraignment.

“There are preliminary motions that can be filed by the defense, such as the motion requesting for the bill of particulars. This could postpone the arraignment schedule,” he said.

The motion is filed when the accusations against a person are vague or if there is a defect seen in the complaint.

“Hearings are required when this motion is filed. The hearings will eat up time,” he noted.

Another possibility prior to the arraignment of the accused is that the defense can also file a “motion to quash.”

Several scenarios that would merit the filing of the motion include: two offenses in only one information (charge sheet), the acts being linked to the accused do not constitute the offense, and double-jeopardy.

“If these motions are denied, the defense can again to the SC,” he said.

Esguerra said the defense can also file a “motion for the production of documents,” but which may not be necessarily a dilatory move.

Motion for bail

The biggest chink sets in if the defense files a motion for bail.
As a rule, bail is not a matter of right in plunder cases. This could stall the proper trial, however.

“This can happen anytime for as long as there’s a threat of being detained… In the application for bail, the burden will be on the prosecutors who need to prove that the accused’s guilt is so strong,” Esguerra said.

After all motions have been filed, the arraignment can now be set. Here, a plea of guilty or not guilty can be entered.

“If the accused does not enter a plea (for reasons such as a pending case at the SC), the Sandiganbayan can enter a ‘not guilty’ plea for him,” he said.

A pre-trial is next, where both parties discuss or limit issues that need to be resolved or the witnesses who will be presented.

“The date of the trial will be set, depending on the number of witnesses. Of course, the trial run will also be sidelined due to developments such as when the witness is absent,” he said.

During this time, a plea bargaining agreement can be discussed.

Finally, the trial can already proceed when all cracks have been covered. The prosecution begins to present its case.

Thereafter, the defense may also file a demurrer to evidence. This means that the court will be asked to dismiss the case on the ground of insufficiency of evidence.

“Usually, it is with a motion for leave of court, otherwise his right to present evidence may be waived,” Esguerra said.

Finally, the verdict can be seen on the horizon.

“These are the reasons why five years may not be enough in the pork scam case. It may be a minimum of a decade… The management is already with the Sandiganbayan,” he said.

While the trial proper has yet to commence, it is important to note the Constitution’s provision on the presumption of innocence, he said.

Esguerra said the court will be the one to judge in the end whether an accused is guilty or not.