MANILA — “Pork barrel queen” Janet Lim Napoles has moved to dismiss the plunder case against her over the alleged misuse of P172 million in Priority Development Assistance Funds (PDAF) of former senator and now chief presidential legal counsel Juan Ponce Enrile.
Napoles, on November 3, filed a 158-page demurrer to evidence — essentially a motion to dismiss due to insufficiency of prosecution evidence — before the Sandiganbayan Third Division, citing a defective criminal charge and the lack of evidence.
The anti-graft court, in its minutes of the proceedings dated November 6, noted Napoles’ filing of a demurrer “without leave of court,” which it said it will resolve “simultaneously or jointly with the main decision after the presentation of evidence for accused Jessica Lucila Reyes.”
Napoles, Reyes and Enrile are accused of conspiring to amass P172.83 million worth of kickbacks between 2004 and 2010 from Enrile’s PDAF funneled through ghost NGOs created by Napoles.
While Enrile was allowed to move to dismiss the plunder charge through a demurrer to evidence, his former chief of staff Reyes was not.
Reyes started testifying on Tuesday, November 14, and is expected to continue her testimony on November 21.
Napoles meanwhile, risks foregoing the presentation of her defense evidence if her demurrer to evidence, filed without permission of the court, is denied.
Section 23, Rule 119 of the Rules of Court states that “When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.”
NAPOLES: NO MAIN PLUNDERER IDENTIFIED
Invoking a 2016 Supreme Court ruling which acquitted former President Gloria Macapagal-Arroyo of plunder, Napoles argued in her demurrer that the information or criminal charge against her before the anti-graft court is void or defective because it failed to identify a “main plunderer.”
In 2012, Arroyo was accused of misusing P366 million worth of intelligence funds of the Philippine Charity Sweepstakes Office from 2008 to 2010.
But the Supreme Court, on July 19, 2016, junked the plunder case for failure of the prosecution to allege in the information who is the main plunderer.
“Surely, the law requires in the criminal charge for plunder against several individuals that there must be a main plunderer and her co-conspirators, who may be members of her family, relatives by affinity or consanguinity, business associates, subordinates or other persons,” the Supreme Court said in the Arroyo case.
Napoles said that applying the main plunderer doctrine to her case, it is not clear who between Enrile and Reyes is the alleged main plunderer.
“If two of more public officers are charged of the crime of Plunder, one of them must be clearly identified in the Information as the main plunderer because it is an element of the crime of Plunder that the public officer who amassed, acquired or accumulated ill-gotten wealth be identified in the Information as the mastermind or the main plunderer,” she said.
“The failure of the information to identify the main plunderer is a fatal defect,” she added, saying that this goes to the right of the accused to be informed of the nature and cause of the accusations against him/her.
The plunder charge against Napoles, Enrile and Reyes was filed in 2014 or before the 2016 Arroyo ruling.
Napoles acknowledged this in her demurrer but only to stress that because the Ombudsman was unaware of the requirement in 2014, the Information against her could not have complied with the requirement of identifying the mastermind or main plunderer.
NAPOLES: INSUFFICIENT EVIDENCE
Napoles raised the issue of insufficiency of evidence presented by the prosecution against her.
She noted that whistleblower Ruby Tuason, who claimed to have acted as conduit between Napoles and Enrile through Reyes, did not present documentary evidence to prove the claim that Napoles received money from Enrile’s PDAF, or that Tuason received money from Napoles, which she later supposedly delivered to Enrile.
Napoles also questioned the testimony of her former personal assistant, Benhur Luy, a key witness who explained how the scheme worked.
Luy claimed that Napoles or her staff would draw from the vault of Napoles’ JLN Corporation millions of cash to be given to lawmakers as commissions and kickbacks through Tuason. The lawmakers would then endorse Napoles’ NGOs to the appropriate government agencies as recipients of PDAF to implement ghost or fictitious projects, with Napoles supposedly misappropriating the funds for her personal gain.
As proof, Luy presented printouts showing a breakdown of incoming funds and releases called “JLN Cash/Check Daily Disbursement Reports” (DDRs) and a summary of rebates (SOR), which would supposedly show how much went to each lawmaker.
But Napoles said Luy’s statements and the documents he presented are inadmissible as evidence.
“[T]he prosecution cannot use the testimony of witness Luy as well as his DDRs and SOR to prove that the alleged kickbacks, commissions, or rebates were sourced from the PDAF of accused Enrile because as admitted by Luy himself, those are cash advances that were allegedly sourced from the co-mingled funds in the vault of JLN Corporation,” the demurrer said.
She explained, there was no logbook or recording of ins and outs of money from the vault of JLN Corporation. There was no evidence, she said, that anyone delivered alleged cash withdrawn from NGO bank accounts or that anyone deposited cash from NGO bank accounts to her personal bank account or that of JLN Corporation or any corporation or entity allegedly owned by her.
Napoles also said that Luy admitted during cross-examination that he prepared the SOR only in 2013 while under NBI custody and while the cases against her were being prepared by the government.
She argued the prosecution should have presented another set of evidence, not the DDRs and SOR, to prove that the alleged kickbacks, commissions or rebates came from the NGOs, from special allotment release orders (SAROs) issued by the Department of Budget and Management (DBM) and the checks issued by the implementing agencies in relation to Enrile’s PDAF.
She pointed out, the alleged JLN vouchers indicated in the DDRs which Luy claimed to have been signed by the public officials “were never presented in court nor offered in evidence by the prosecution” but were instead supposedly already “shredded.”
“Worse, the DDRs of witness Luy were not even introduced as evidence in court in accordance with the Rules on Electronic Evidence, which means that they were not properly authenticated, hence, they cannot be considered as functional equivalent of the original documents,” she claimed.
Napoles also sought to distance herself from the NGOs, arguing she was “neither an incorporator, a trustee, a member, an officer or even an employee or representative of the said NGOs.”
She questioned Luy’s supposed employment under her corporation as well as the credibility of the other witnesses presented against her and the authenticity of the documents presented by the prosecution.
Some documents from the DBM, Commission on Audit, Department of Agriculture and the Securities and Exchange Commission did not originate from these agencies and do not even mention her name, Napoles said.
“[N]ot a single centavo of the total amount of Php172,834,500.00 of alleged ill-gotten wealth supposedly shown as rebates in the SOR of witness Luy in the prosecution’s Compliance to the Bill of Particulars ordered by Supreme Court in the Enrile Bill of Particulars case was proven by the prosecution to have been diverted to accused Napoles enabling her to misappropriate the same for her personal gain,” she claimed.
The 9-year-old plunder case is nearing its end with Reyes set to present her last witness in January 2024.
Enrile was released on bail in August 2015 upon order of the Supreme Court, citing his poor health and the unlikely possibility that he will escape.
Reyes, on the other hand, walked free in January 2023 after the SC granted her petition for habeas corpus on the ground that her detention since July 2014 has become oppressive and infringed her right to liberty.
Napoles remains detained after having been convicted in several charges, among them, plunder, graft and malversation.