Enrile lawyer: No direct link to scam

'There is no command responsibility in criminal law,' says the lawyer of Sen Juan Ponce Enrile

'NO LINK.' Enrile lawyer Enrique dela Cruz (right) says there is no direct link between his client and the alleged kickbacks in the pork barrel scam. File photo from Dela Cruz's Facebook page

MANILA, Philippines – Senate Minority Leader Juan Ponce Enrile challenged the Department of Justice (DOJ) to directly link him to the multi-billion peso pork barrel scam.

Of the 3 senators named in the complaint, only Enrile has been away from the public eye as he was rushed to the hospital over the weekend due to high blood pressure. He was discharged from the Makati Medical Center on Wednesday, September 18. Senators Bong Revilla and Jinggoy Estrada are also respondents.

READ: Plunder complaints vs Estrada, JPE, Revilla

READ: Revilla, Estrada: Don’t judge us

Yet through his lawyer, Enrique dela Cruz, the former Senate President denied conniving with alleged mastermind Janet Napoles to endorse her fake non-governmental organizations in exchange for P172,834,500 in kickbacks.

The amount was listed in the executive summary that the justice department prepared as it filed the complaint before the Ombudsman on Monday, September 16.

In past interviews, Dela Cruz said Enrile never authorized his staff to sign endorsement letters naming NGOs as the recipient of his Priority Development Assistance Fund (PDAF).

Enrile’s former chief of staff, lawyer Gigi Reyes, is also a respondent in the complaint. The DOJ said she left the country and has yet to return. Reyes was Enrile’s long-time chief of staff who resigned at the height of the Senate fund controversy.

READ: Gigi Reyes says sorry

Former ZNAC Rubber Estate Corp (ZREC) head Salvador Salacup also told the Senate that Jose Antonio Evangelista, Enrile’s deputy chief of staff for political affairs, signed letters on the senator’s behalf to endorse Napoles-linked NGOs. Enrile’s staff said Evangelista still reports to work

READ: ‘Revilla, Enrile, Estrada signed pork liquidation’

Rappler talked to Dela Cruz to see how the 89-year-old senator and legal expert is preparing to face a possible plunder case in court. Dela Cruz is a partner and head of legal staff in the Ponce Enrile Reyes and Manalastas Law Offices (PECABAR), Enrile’s law firm.  

ALSO CHARGED. Enrile's deputy chief of staff Jose Antonio Evangelista (L) was named by witnesses as signing endorsement letters on the senator's behalf. Enrile's former chief of staff Gigi Reyes (center) was among those charged before the Ombudsman on Monday. Photo from Senate library

Have you gone through the plunder complaint? What is your assessment?

Not yet, we have not officially received a copy. Unfair nga, ‘di kami nabigyan. Ang problema namin, ‘di ganoon ang proseso. ‘Pag nakita ng Ombudsman na may basis, the Ombudsman will write the respondent, give a copy and ask for a response. After he responds, the Ombudsman can now make the case public. How do you expect the senators to defend themselves if you did not give them a copy [of the complaint]?

We were compelled to address what the media is reporting because the DOJ deliberately made it a trial by publicity, complete from the Mass to the filing to the press con and executive summary. Saan ka nakakita ng reklamong may executive summary for the media? ‘Di ba dapat media nagsa-summarize para you can get your own evaluation? Kulang na lang may press kit at giveaway. Gobyerno ito di ba? So ‘yun lang ang nakakalungkot.

Napipilitan kami sumagot because he is being pilloried in the media. Ang sinasagot lang namin, ang ume-ere sa media, and the magical and marvelous executive summary. Sa fertilizer scam ba may executive summary, kay GMA (former President Gloria Macapagal-Arroyo) meron ba?

You previously said there is no element of plunder in this case. Why?

Plunder is amassing ill-gotten wealth as a result of bribery, kickback or commission. The first element is there must be amassing money. Where is it? In Erap’s (former President now Manila Mayor Joseph Estrada) case, there was a bank deposit. You can see it. The jueteng whistleblowers said they deposited money to that account. That’s clearly plunder. Here, where’s the money?

(Editor’s Note: Estrada was accused of receiving kickbacks from the illegal numbers game jueteng. He was convicted of plunder in 2007 but was soon pardoned by then President Arroyo.) 

Sabi nila (DOJ and whistleblowers) it was given to the staff, there’s a commission. They computed it 50% so he might have received P172 million. Hindi pwede ang ganyan. It’s speculation.

In short, ang kaso ng government is “malamang nagkaroon siya.” Hindi pwede ang ganoon. You show me the money. How did he receive it? Is there any testimony showing he received it? A cash deposit? To what account? Who gave it to who?

Is there any link between JPE and this kickback? Did he ask for this kickback? Did anyone say “I gave a kickback to JPE?” Sinasabi nila JPE “influenced” the implementing agencies to allot his PDAF to unscrupulous or bogus NGOs. Ito ang hina-harp nila which is not really an element of plunder.

May pinirmahan ba si JPE na inuutos ang implementing agency na i-allot ang PDAF niya sa NGO? We have the documents. He allotted the PDAF to local government units, addressed to the implementing agency.

How the implementing agency will implement this, there are 3 ways. One it can do this itself: magpagawa ng classroom, kalsada like the DPWH (Department of Public Works and Highways), the DepEd (Department of Education). Two, enter into a memorandum of agreement (MOA) with the NGO. Who will enter into a MOA? The implementing agency and the NGO, not the legislator. Three, kukuha ng contractor, sila ang gagawa ng bidding.

Wala namang documents showing he said to give it to this NGO. Kaya ang sinasabi nila ay hilaw at hindi patas. It’s really partial and I’m wondering why.

(For background, see INFOGRAPHIC: Pork barrel trail – how gov’t funds end with Napoles)

Whistleblowers and former heads of implementing agencies said Atty Gigi Reyes and Jose Antonio Evangelista signed documents on Sen Enrile’s behalf.

It’s a standard practice of legislators to have an authority for the staff to sign on mundane matters, a standard which the DOJ is making a big thing. Under criminal law, this won’t apply. Walang inutos si JPE sa sinong tauhan na lumabag ng batas. He never authorized anyone to enter into an illegal transaction. If they did, it’s outside their authority and they should be held responsible.

There is no command responsibility in criminal law. Administrative liability puwede, negligence, puwede kasuhan administratively but not in a crime. Can you rape someone by negligence? Nagahasa dahil ‘di ko nabantayan, ako ba ang may kasalanan?

Ang instruction niya, at ito ang kanyang endorsements to the implementing agencies, is to release his PDAF to identified LGUs. There is a standard authority for the chief of staff or the deputy chief of staff to sign [documents] on his behalf but if they entered into an illegal transaction, ‘di alam ni JPE yun.

Wala siyang inauthorize na i-allot ang pera to any specific Napoles NGO. ‘Di namin alam saan ang attribution.

The COA said Sen Enrile confirmed that the signatures were his.

He was asked by COA to explain. Yes, pirma niya sa [letters to the] implementing agencies, yes. These are standard, and his signature in the endorsement of his PDAF is not a crime. It’s an instruction to give it to the LGU.

How will this be implemented, how will the money be released, that’s something between the implementing agency and the conduit. Sinasabi ng DOJ na may participation ang office ni Sen Enrile by one of the staff endorsing a particular NGO. Don’t attribute that to JPE directly. There’s a link you have to prove. That’s jumping to conclusions. 

There is no written authorization for every transaction signed. It’s a standard, blanket authority for day-to-day operations of the office. But if you’re entering a MOA with a bogus NGO, there’s no written instruction, no such thing. If she (Reyes) used her authority for something illegal, by no stretch of the imagination, can you link JPE do that. He didn’t know anything.

Is he saying his signatures were forged like what the other senators are claiming?

We cannot say it’s forged unless we see the documents. From the documents shown to us by COA, JPE acknowledged those were his. There was no document endorsing a Napoles NGO. There were documents where JPE mentioned the PDAF and some letters addressed to I think an existing government corporation but nothing to the sort of “Put my money to an NGO.” 

He had no transaction or contract with an NGO. His endorsement was for the implementing agency to give his PDAF to specific LGUs. He might have written some NGOs in response to their request but not endorsing his funds or PDAF to the NGO. Rather, his endorsement is to the LGUs and the records will bear us out. 

Does Sen Enrile know Napoles or principal whistleblower Benhur Luy?

No. Napoles, Benhur Luy or any of the so-called whistblowers, [he doesn’t know them]. None said they met him, none said they gave him money or they asked for any bribes, at least for money. He knows them by face because Napoles has been around, parties and all but no transactions directly with him. He hasn’t talked to her in any way especially not with the PDAF. It’s possible they met in a party but you can’t attribute criminal liability by photography or association.

Why did Sen Enrile call the investigation incomplete, hasty and partial?

It’s really hasty. Monday last week (September 9) the President announced they had a case to be filed against the alleged perpetrators and the evidence is solid. Tuesday (September 10), the Justice Secretary [Leila de Lima] made the statement that they were ready to file the case. In the hearing in the Senate last Thursday (September 12), she said and I quote, “We are under extreme pressure to file already a case or cases ASAP.”

Friday (September 13), [the whistleblowers’ lawyer] Atty [Levito] Baligod delivered 17 boxes of evidence to the NBI. My question is with whatever superpowers you have, would you be able to read the boxes over the weekend to file a case on Monday? Bakit nauna ang anunsyo kaysa ebidensya? Kung ‘di minadali, bakit sinasabi may 2nd batch at 3rd batch? 

If it’s a conspiracy, the act of one is the act of all. Ibig sabihin kung nagnakaw ang isa at ang isa nagbantay sa pinto, lahat sila sabit pero para masampa mo kailangan ma-determine ang specific participation ng bawat isa para magkaroon ng conspiracy, otherwise there is no conspiracy. You have to identify all the conspirators muna. Meron ba namang conspiracy by batch? Saka pa pag-aaralan?

My question is what’s the criteria, why did you choose these people? The Commission on Audit report named at least 12 senators and 62 congressmen. What criteria was used for filing the complaint, opposition lang ba? Akala ko the goal of the DOJ is to ferret out the truth, it should be the whole truth.

Ang basis ng complaint is conspiracy, nagkuntsabahan ang legislators, implementing agencies at ang Napoles NGOs pero may nakalimutang isang importanteng element sa conspiracy. Saan nanggagaling ang pera? Who is the custodian of the money? It’s the DBM (Department of Budget and Management). Ano ang first document, SARO (special allotment release order). They’re supposed to determine who should get the SARO. Why did they give the SARO to an undeserving entity?

The implementing agency does not have the money. The NGO still has to go back to the DBM and get a notice of cash allocation, so twice the DBM could have stopped this. They could have screened the recipient of the SARO or refused to issue checks to bogus NGOs. Maniniwala ka bang lalabas ang pera na ‘di nagpaparticipate ang DBM? No one is asking why the DBM is not included. 

Who else is handling Sen Enrile’s case?

The team is headed by litigation lawyer Joseph Sagandoy, but the whole firm of PECABAR is handling the defense of JPE.

 

 

Here is the English translation of the interview:

Have you gone through the plunder complaint? What is your assessment?

Not yet, we have not officially received a copy. It’s unfair that we were not given a copy of the complaint. The problem is that’s not how the process works. The process is when the Ombudsman sees there is basis, the Ombudsman will write the respondent, give a copy and ask for a response. After he responds, the Ombudsman can now make the case public. How do you expect the senators to defend themselves if you did not give them a copy [of the complaint]?

We were compelled to address what the media is reporting because the DOJ deliberately made it a trial by publicity, complete from the Mass to the filing to the press con and executive summary. Where do you see a complaint with an executive summary for the media? Shouldn’t the media summarize on its own so you can get your own evaluation? They were a step away from giving press kits and giveaways. Isn’t this the government? That is saddening.

We were forced to respond because he is being pilloried in the media. The only thing we are responding to are the allegations that come out in media, and the magical and marvelous executive summary. In the fertilizer fund scam, was there an executive summary? In the case of GMA (former President Gloria Macapagal-Arroyo), was there one?

You previously said there is no element of plunder in this case. Why?

Plunder is amassing ill-gotten wealth as a result of bribery, kickback or commission. The first element is there must be amassing money. Where is it? In Erap’s (former President now Manila Mayor Joseph Estrada) case, there was a bank deposit. You can see it. The jueteng whistleblowers said they deposited money to that account. That’s clearly plunder. Here, where’s the money?

They said (DOJ and whistleblowers) it was given to the staff, there’s a commission. They computed it 50% so he might have received P172 million. That cannot be. It’s speculation.

In short, the case of the government is “he might have had kickbacks.” It does not work that way. You show me the money. How did he receive it? Is there any testimony showing he received it? A cash deposit? To what account? Who gave it to who? 

Is there any link between JPE and this kickback? Did he ask for this kickback? Did anyone say I gave a kickback to JPE? They are saying JPE “influenced” the implementing agencies to allot his PDAF to unscrupulous or bogus NGOs. This is what they keep harping on, which is not really an element of plunder.

Did JPE sign any order for the implementing agency to allot his PDAF to an NGO? We have the documents. He allotted the PDAF to local government units, addressed to the implementing agency. 

How the implementing agency will implement this, there are 3 ways. One it can do this itself: build classrooms and roads like how the DPWH (Department of Public Works and Highways) and the DepEd (Department of Education) do it. Two, enter into a memorandum of agreement (MOA) with the NGO. Who will enter into a MOA? The implementing agency and the NGO, not the legislator. Three, get a contractor and do a bidding.

There are no documents showing he said to give it to this NGO. That’s why their allegations are raw and unfair. It’s really partial and I’m wondering why.

Whistleblowers and former heads of implementing agencies said Atty Gigi Reyes and Jose Antonio Evangelista signed documents on Sen Enrile’s behalf.

It’s a standard practice of legislators to have an authority for the staff to sign on mundane matters, a standard which the DOJ is making a big thing. Under criminal law, this won’t apply. JPE did not order them to violate the law. He never authorized anyone to enter into an illegal transaction. If they did, it’s outside their authority and they should be held responsible.

There is no command responsibility in criminal law. Administrative liability, yes you may hold a person to that and file an administrative case but not in a crime. Can you rape someone by negligence? The person was raped because I did not guard him or her? Is that my fault?

His instruction and endorsements to the implementing agencies were to release his PDAF to identified LGUs. There is a standard authority for the chief of staff or the deputy chief of staff to sign [documents] on his behalf but if they entered into an illegal transaction, JPE did not know that.  

He did not authorize them to allot the money to any specific Napoles NGO. We do not know where the attribution is coming from.

The COA said Sen Enrile confirmed that the signatures were his.

He was asked by COA to explain. Yes, his signatures [in letters to the] implementing agencies, yes. These are standard, and his signature in the endorsement of his PDAF is not a crime. It’s an instruction to give it to the LGU.

How will this be implemented, how will the money be released, that’s something between the implementing agency and the conduit. The DOJ is saying there was participation of the office of Sen Enrile by one of the staff endorsing a particular NGO. Don’t attribute that to JPE directly. There’s a link you have to prove. That’s jumping to conclusions. 

There is no written authorization for every transaction signed. It’s a standard, blanket authority for day-to-day operations of the office. But if you’re entering a MOA with a bogus NGO, there’s no written instruction, no such thing. If she (Reyes) used her authority for something illegal, by no stretch of the imagination, can you link JPE do that. He didn’t know anything. 

Is he saying his signatures were forged like the other senators are claiming?

We cannot say it’s forged unless we see the documents. From the documents shown to us by COA, JPE acknowledged those were his. There was no document endorsing a Napoles NGO. There were documents where JPE mentioned the PDAF and some letters addressed to I think an existing government corporation but nothing to the sort of “Put my money to an NGO.”

He had no transaction or contract with an NGO. His endorsement was for the implementing agency to give his PDAF to specific LGUs. He might have written some NGOs in response to their request but not endorsing his funds or PDAF to the NGO. Rather, his endorsement is to the LGUs and the records will bear us out.

Does Sen Enrile know Napoles or Benhur Luy?

No. Napoles, Benhur Luy or any of the so-called whistblowers, [he doesn’t know them]. None said they met him, none said they gave him money or they asked for any bribes, at least for money. He knows them by face because Napoles has been around, parties and all but no transactions directly with him. He hasn’t talked to her in any way especially not with the PDAF. It’s possible they met in a party but you can’t attribute criminal liability by photography or association.

Why did he call the investigation incomplete, hasty and partial?

It’s really hasty. Monday last week (September 9) the President announced they had a case to be filed against the alleged perpetrators and the evidence is solid. Tuesday (September 10), the Justice Secretary made the statement that they were ready to file the case. In the hearing in the Senate last Thursday (September 12), she said and I quote, “We are under extreme pressure to file already a case or cases ASAP.” 

Friday (September 13), [the whistleblowers’ lawyer] Atty [Levito] Baligod delivered 17 boxes of evidence to the NBI. My question is with whatever superpowers you have, would you be able to read the boxes over the weekend to file a case on Monday? Why did the announcement come before the evidence? If they didn’t rush that, why is there a 2nd batch and 3rd batch?  

If it’s a conspiracy, the act of one is the act of all. It means when one steals, the one guarding the door is also liable and when you file a case, you have to determine the specific participation of each person to establish conspiracy, otherwise there is no conspiracy. You have to identify all the conspirators first. Could there be conspiracy by batch? You accuse first before studying the case? 

My question is what’s the criteria, why did you choose these people? What criteria was used, just opposition lawmakers? I thought the goal of the DOJ is to ferret out the truth, it should be the whole truth. The basis of the complaint is conspiracy, that the lawmakers conspired with the implementing agencies and Napoles NGOs but there is an important element in conspiracy that is missing. Where did the money come from? Who is the custodian of the money? It’s the DBM (Department of Budget and Management).  What is the first document, SARO (special allotment release order). They’re supposed to determine who should get the SARO. Why did they give the SARO to an undeserving entity? 

The implementing agency does not have the money. The NGO still has to go back to the DBM and get a notice of cash allocation so twice the DBM could have stopped this. They could have screened the recipient of the SARO or refused to issue checks to bogus NGOs. Can you believe that the money was released without anyone from DBM participating in the scam? No one is asking why the DBM is not included.

Who else is handling Sen Enrile’s case?

The team is headed by litigation lawyer Joseph Sagandoy, but the whole firm of PECABAR (Enrile law firm) is handling the defense of JPE. – Rappler.com

 

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