Q and A: Jose Manuel Diokno on plunder and the judiciary

MANILA, Philippines –  Lawyer Jose Manuel Diokno, the dean of the De La Salle University College of Law, sat down on Thursday, July 3, with Rappler’s Chay Hofileña to talk about the plunder cases filed with the anti-graft court Sandiganbayan.

Among others, he pointed out the need to beef up the prosecution in what is believed to be the country’s biggest corruption case in recent history. (READ: Prosecutors in plunder cases at ‘tremendous disadvantage’ – Diokno)

He also spoke about the double standard that plagues the judicial system as seen in the places of detention of high-profile personalities accused of plunder, as well as the need for accountability among those who prosecute cases, as well as those who decide them.

Here are highlights and excerpts from that interview. 

Q: Given the recent developments in the case and the moves to make amendments in the information that had been filed – what do you think would be the implication of this?

Well, the Ombudsman has to consider as well, not just the court battle itself but even the battle for public opinion. Their recent actions have not exactly enhanced their credibility to the public and have raised a lot of questions about how effectively they can prosecute the case. But I think what has happened recently is an offshoot of the structural problems within the Office of the Ombudsman. For a long time, and up to now, the unit within the Ombudsman that prepares the information and conducts the preliminary is a different unit from the prosecutors who actually handle the trial, who present the evidence. So the prosecutors who are tasked with conducting the trial, basically they receive the information and from what I understand, they don’t have any input how it was prepared.

Q: So there’s a disconnect between those who prosecute and those who prepare the information?

I don’t know what happened in this particular case but I suspect that when the trial prosecutors received the original information and looked at it…they weren’t happy with the contents, the allegations. So they said we have to amend this information. And this is not the first time that this happened. I’ve had a number of other cases where the same thing has taken place.

Q: This has been going on for several years now?

Yes. I’ve been conducting training of Ombudsman lawyers since around 2005 and I’ve been hearing the same complaint ever since.

Q: But why is that? This is such a big case and yet they did not confer with each other before they actually filed the information? Isn’t that problematic?

I’m not sure what was done or how the team was organized. It would have been ideal if the team was a cross-section from different units within the Office of the Ombudsman to make sure they covered all the bases. But as I understand it…it’s very territorial.

Q: What would you say about the quality of prosecutors? Do you think they are ready to do battle with veteran lawyers like [Jose] Flaminiano and Estelito Mendoza?

Let’s just say that they’re at a tremendous disadvantage both in terms of skills and in terms of resources. Unfortunately the best of our litigators never end up in government. The best of our litigators, most of them end up in private firms. Especially the bigger firms. Nowadays you don’t find that many public prosecutors who are really effective trial lawyers.

Q: In the Erap impeachment case, I think there were private prosecutors who were brought in. Is that something that the Ombudsman should think about?

Perhaps the Ombudsman should think of that very carefully. As I recall in the Erap plunder case, there were also lawyers who were in the government but not within the Office of the Ombudsman who were deputized to assist. Because there are a lot of good prosecutors, for example, in the Department of Justice. Yung talagang marunong mag-hawak ng kaso. I would say there are more seasoned litigators in the DOJ than there are in the Office of the Ombudsman at present.

Q: So what are the things that we should be watching out for?

Well one is…cases are not won inside the courtroom as much as in preparation, I am hoping that the Ombudsman’s Office is preparing its witnesses carefully and the exhibits that they will be presenting. It’s very technical but if they fail for example, to authenticate all those records of Benhur Luy, that case will crumble just on the fact that they were unable to authenticate the evidence…And if the testimonies of the witnesses…vary greatly from what they say at the Senate, again that will be exploited by the defense.

Q: We’ve seen some of the files of Benhur and we noticed that some of them had deletions and some sheets had figures, names that were probably there and were eventually taken out. Would this weaken the prosecution?

I expect the defense will attack that but the biggest obstacle really for the prosecution is the fact that Luy and the rest of the whistleblowers can only testify to what they know. But were they there for example, when transactions were made between the principal accused with the senators? If all that Luy can testify are the records but not the meetings or money changing hands, or the plan being made, what evidence will the prosecution use to implicate the senators?

Q: Everything would be hearsay on his part?

Technically, that would be hearsay.

Q: If that is the case, then wouldn’t the prosecution then need Janet Napoles?

Maybe her or somebody like her who has the personal knowledge that yes, this senator so and so did this or did that. I don’t know if Luy and the others can say that. (I don’t think they were involved directly.) If that’s the case then that should have been obvious from the start. Then the job of the prosecution would be in addition to having these witnesses, finding other witnesses who could now supply that. The one of course who would come to mind naturally would be Janet Napoles but of course…the government has issues with making her a state witness.

Q: There have also been concerns about double standards now because the senators – at least the two who have been issued warrants of arrest – are in a custodial center. And the facilities are much better compared to the ordinary facilities that ordinary folks would be put in.

We have a tremendous problem with our jails. I’ve been to a lot of jails in our country and I’ve never seen a jail that meets the minimum standards of the United Nations. So I understand why some judges are sometimes lenient when it comes to prominent people charged in their court…There are really two related issues there. One is the hospital arrest, or the proposed hospital arrest for Senator Enrile. Second is the fact that the other two senators are kept in a custodial center. That stockade in Camp Crame, among us lawyers who have had a lot of cases, para sa amin parang 3-star hotel yan. Yeah, because when you go there, it’s really intended for so-called big-time personalities…And whenever you have issues like that, the public will always have that perception that people who are big in society get treated differently.

Q: How do you insulate the court, the Sandiganbayan justices from politicians?

Unfortunately, the most difficult thing really is the fact that all justices want advancement in their career. So if I’m a justice of the Sandiganbayan, I would probably want to be promoted or appointed to the Court of Appeals or the Supreme Court. And historically, justices who handle big cases, prominent cases do get appointed to the higher courts. And that poses a problem in terms of finding justices in a particular case. Then they may be tempted to overlook the evidence perhaps and do something…do what they think would be favorable to them…just so they’ll get appointed to a higher position. That’s always a factor that we take. That we look into when we handle cases. On the other hand, what’s the best way to counteract that? I think the public has to be very much involved in the case…As long as they know…everyone is monitoring then…I think they’ll keep in line.

Q: One specific case comes to mind. The case of Nani Perez, former justice secretary. It was long-running and then, it was dismissed on technical grounds because of failure on the part of the prosecution. Can the justice involved just get away with it? Can it be very whimsical?

Well the question is where was the problem there? Was it the lack of evidence submitted by the prosecution? Because even if the Court wants to do justice, but if there’s not enough evidence, they have no case…It’s much easier actually to evaluate the work of a judge because you just look at what evidence was presented then you can tell if the ruling was right or not. But with the prosecution, you may not know what evidence was not presented.

Q: And if that is the case, who runs after them?

That’s the problem. I don’t think there is a system for holding them accountable. Either within the Ombudsman or even outside.

Q: So there’s no accountability on the part of the public prosecutors?

Ironically, they’re from the Office of the Ombudsman so they should be the most accountable…for example, the case of Nani Perez, I haven’t heard of any of them, the prosecutors…of any evaluation being done. If the problem was with them or not. The cases that I know where the prosecution bungled as far as I know, none of them were ever charged or held accountable.

Q: And how long do you think this case will drag on?

It will take years. In the first place, plunder is one of the hardest cases to prosecute because of the elements, the evidence, and the requirements. It’s very hard to prosecute. And then you have so many number of accused involved. They all have their own lawyers. Each of those lawyers will probably elevate this to the Supreme Court at some point in time.

Q: Do you have any specific ideas about how to improve the processing of cases or the decisions being reached in cases?

I have a number of them. In the Office of the Ombudsman, they have an additional layer of investigation. Before the preliminary investigation, they have a fact-finding office. And they conduct…supposedly they conduct fact-finding before the preliminary investigation…It has proven to be a cause of some delay in the Ombudsman that goes through the fact-finding…There are also reports about corruption…Generally in our legal system, the more layers you have, then the more possibilities for corruption.

Q: It’s possible for prosecutors to be corrupt because of various temptations. Who prosecutes the prosecutors?

I’m not sure. The Ombudsman of course, because constitutionally, the Ombudsman is the head of office. It’s the one who should take action. Anyone who has evidence of them committing bribery and stuff should come forward and file cases.

Q: File cases with? 

Well it will have to be with the Office of the Ombudsman. The problem of accountability is one shared both by the judiciary and the prosecution service. In the judiciary, there’s a real legal obstacle. The Ombudsman cannot investigate the judges…The fact that they belong to the Ombudsman’s Office and the fact that you have to file a complaint against them before the same Office, of course makes it difficult to hold them accountable.

Q: There is also concern about judicial independence because of the budget of the judiciary. It’s still the executive and legislative branches of government that ultimately decide on how much they get. Is there a way out of this or is this something they have to live with it? 

To a certain extent, it’s something they have to live with but I think there’s still al lot of things the judiciary can do to make…You know the biggest problem that we have in the judiciary, one-third of our courts are vacant. We have no judges. 27% of our trial courts have no judges. So how can you expect us to have speedy cases…if you have a hospital which is operating like that, has only 70 doctors, but it needs a hundred and everyday you have patients, that hospital will end up collapsing on its own weight. And that is what is happening to our judiciary. – Rappler.com

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See related stories:

• Plunder in the Philippines
• What’s the difference: Plunder, graft in PDAF issue?
• Ombudsman ‘blunder’ may cost the plunder charges?
• No closure yet on Erap Estrada’s plunder case
• How Jinggoy got away in his first plunder charge

Read other stories on plunder here.