Aguirre: Existing Sandiganbayan charges vs Napoles have ‘defects’

MANILA, Philippines – Justice Secretary Vitaliano Aguirre II said on Tuesday, March 20, that he sees a "defect" in the plunder charges against alleged pork barrel scam mastermind Janet Lim Napoles who's already on trial at the anti-graft court Sandiganbayan.

Aguirre said this even as he insisted that his move to turn Napoles into a witness in possible new cases will not affect already existing cases at the Sandiganbayan.

Speaking in a press briefing inside Malacañang on Tuesday, March 20, Aguirre explained that Napoles is qualified to be a government witness because as a private person, she is not the most guilty,.

Who is more guilty? The public officer or a private person who has just finished high school? So if I put – dito lang ha, parang may depekto na natin na nadiskubre ngayon ang charges sa Sandiganbayan sa kanya eh, kasi ang charges dito is plunder. And plunder is a charge against a government official,” Aguirre said.

(So if I put – just on this point, it seems that we have discovered defects in the charges in the Sandiganbayan against her. The charges here are plunder, and plunder is a charge against a government official.)

Why does this matter? The Office of the Ombudsman prosecuted the 5 counts of plunder and dozen counts of graft against Napoles that are now being tried at the Sandiganbayan.

What alarms sectors in the latest DOJ move to put Napoles under the Witness Protection Program (WPP) is that it will undo years' worth of work in the already existing cases.

But Aguirre allayed that fear: “We will not mind anymore whatever pending cases [are] pending against  her. Doon lang kami sa pa-file-an namin na bago (We’ll focus on the new cases we will file). But as I told you, it will not, in any way affect the current cases or pending cases against her.”

However, later in the press conference, Aguirre said that the theory of Napoles not being the most guilty would show "defects" in the already existing cases.

Ombudsman Conchita Carpio Morales also said these already existing cases will not be affected, and that she will block any attempt  to make Napoles a state witness in those cases.

What happens when Morales retires? Morales retires in July.

Whoever will replace Morales has the power under revised rules of criminal procedure to declare Napoles a state witness in present cases.

Asked for his opinion on whether a new Ombudsman can change Morales’ theory, Aguirre said: “Well, hindi naman kinakailangang i-change na because sa ngayon, the cases she’s facing are plunder cases. Kapag plunder, sino ba ang dapat idemanda diyan, hindi ba government officials?”

(Well, you don't need to change it because as of now, the cases she's facing are plunder cases. In plunder, who should you sue, government officials, right?) (READ: No need for Janet Napoles: Cases vs LP lawmakers pending at Ombudsman)

Aguirre added: “So, kung government officials ang idedemanda diyan, then si Janet would be just a co-conspirator. And being a co-conspirator, she is not the most guilty. Kaya, since she is not the most guilty, then she is qualified to be put under the WPP.”

(So, if government officials are charged then Janet would just be a co-conspirator. Being a co-conspirator, she is not the most guilty. So since she is not the most guilty, then she is qualified to be put under the WPP.)

Aguirre even goes on to say that their assessment of Napoles' credibility as a witness will possibly clash with Benhur Luy, and his standing as a state witness.

"Basta ang mangyayari dito, ipagpalagay nang credible or incredible iyong si Benhur Luy, magdedepende lang kami dito kay Janet. Siyempre before we admit her, dapat ma-explain niyang lahat, “O, papaano itong kay Benhur Luy na sinasabi?” Iyan ay hindi ko masasagot iyan, premature pa iyan," he said.

(What will happen here is that let's say that Benhur Luy is credible or incredible, we will depend on Janet. So before we admit her, she should be able to explain everything. "How about Benhur's statements?" But I can't answer that yet, that's still premature.) (READ: Do not forget the sins of Napoles)

Napoles’ lawyer Stephen David also mentioned that apart from Napoles being a state witness, they are also looking at the option of striking a plea bargain agreement.

A plea bargain agreement is pleading guilty to a lesser offense. Instead of issuing denial after denial, the accused admits to wrongdoing, thus giving prosecutors some headway to pursue the case.

What’s the track record? The plea bargain agreement of former military comptroller retired Major General Carlos F. Garcia in 2011 rocked the Office of the Ombudsman. In that plea bargain, he pleaded guilty to direct bribery and facilitating money laundering to be cleared of plunder.

It led to former Ombudsman Merceditas Gutierrez resigning just before the Senate could start her impeachment trial.

Amid the public uproar, the anti-graft court Sandiganbayan upheld the deal.

Interestingly, one of the characters there was former presiding justice Edilberto Sandoval. As chair of the second division in 2010, he voted to grant bail to Garcia. He was outvoted, and the majority rejected the bail request.

Garcia then went for a plea bargain deal.

Sandoval is now the Chief Special Prosecutor of the Office of the Ombudsman. He is the first recommending authority for plea bargain deals and for admitting someone as a state witness. –

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.