MANILA, Philippines (2nd UPDATE) – Senate President Franklin Drilon deferred to the judgment of the Ombudsman instead of joining his colleagues in pushing for the Senate testimony of alleged pork barrel queen Janet Napoles.
In a press conference on Tuesday afternoon, September 24, Drilon said the Senate will abide by the advice of Ombudsman Conchita Carpio Morales not to summon Napoles to the investigation of the Senate Blue Ribbon Committee.
Committee Chairman Teofisto “TG” Guingona III had asked Drilon to sign a subpoena for Napoles. Instead of immediately signing this, Drilon asked for Morales’ comment on Monday. This prompted Guingona to lament what he called efforts to “gag and bar” witnesses from appearing in the probe.
Drilon said, “I appreciate the passion of Sen Guingona to investigate pork barrel scam but my attention was called about the rule of the Ombudsman against the public disclosure of cases.”
“The Ombudsman is not an ordinary government functionary. She is an independent constitutional official. Out of prudence and respect, we must defer to the Ombudsman as she has acquired primary jurisdiction of the case.”
Morales replied to Drilon on Tuesday, saying, “It would not be advisable at this time for Ms Napoles to testify before the said Committee.”
Yet Guingona and Sen Francis Escudero questioned Drilon's decision, saying the Ombudsman's advice is not binding.
“The Ombudsman, in her letter, did not prohibit the Senate from calling Janet Lim-Napoles. While we respect the Ombudsman’s advise, we cannot follow it. The Senate is independent from the Ombudsman. The Senate is not bound by the advice of the Ombudsman," Guingona said in a statement immediately issued after Drilon's press briefing.
Drilon though signed the subpoena that Guingona issued for Justice Secretary Leila de Lima and the whistleblowers to appear in the Senate hearing on Thursday, September 26.
Guingona said Drilon's actions defy "logical and legal sense."
“If the Senate President can allow the whistleblowers to come before the Senate, I see no logical reason why he should prevent the Blue Ribbon Committee from summoning Janet Lim-Napoles: the very reason why this investigation is being conducted in the first place. Allowing the whistleblowers but disallowing Napoles from appearing before the Senate makes no logical sense.”
He added, "If the Senate President refuses to defend the power of the Senate, I must continue to defend it myself. The Senate cannot surrender its powers without a clear legal justification."
Besides Guingona, Escudero also wanted the committee to summon Napoles and disagreed with Drilon and the Ombudsman.
“I read the letter of the Ombudsman. It is not for her to determine what is in aid of legislation and what is not. It is also not in her place to say what Napoles can say or cannot say because that is up to Napoles and her lawyer if she will invoke her right to remain silent,” Escudero said.
Escudero said the senators will discuss the issue in a caucus to try to come up with a consensus. He said a vote of all senators in plenary may override the Senate President's decision.
Last week, the justice department filed before the Ombudsman a plunder case against 3 senators, congressmen and other individuals for the multi-billion peso scam.
The lawmakers are accused of siphoning off their Priority Development Assistance Fund (PDAF) to fake NGOs of Napoles in exchange for commissions as big as 50% of the project. Guingona's committee is conducting a parallel probe into the controversy.
Chiz: Napoles not under Ombudsman power
Earlier Tuesday, Guingona issued strong words against Drilon and de Lima for invoking the confidentiality rule of the Ombudsman.
Guingona said it was wrong for Drilon to seek the Ombudsman’s advice.
“When witnesses are gagged and barred from appearing before the Senate Blue Ribbon Committee and a subpoena for a vital resource person remains unsigned, I, as chairperson of the Blue Ribbon Committee, am duty-bound to defend the rules of the Senate and most importantly, to defend the Senate’s power pursuant to the Constitution,” Guingona said.
In the letter to Drilon, the Ombudsman explained that because there are other batches of cases to be filed, summoning Napoles will not “produce at this stage complete, nay reliable information that legislation intends to affect or change.”
She added, “Even if Ms Napoles appears before the Senate …. given that she has publicly, consistently professed that she is not involved in any PDAF-related transaction, the objective of the Senate in summoning her to testify would be an exercise in futility.”
Citing the Ombudsman Act and its Rules of Procedure, the Ombudsman said the publicity from Napoles’ testimony will “adversely affect public interest, prejudice the safety of witnesses or the disposition of cases against her and or/her correspondents pending before this Office, or unduly expose them to ridicule or public censure.”
“I hope that the distinguished Senate will understand the concerns of this Office …. so it can effectively discharge its mandate,” Morales wrote.
Escudero disagreed with Morales, and said the Senate should act independently.
“In the history of the Senate, a case pending even before the Sandiganbayan never stopped us from summoning a witness, what more if it is just before the Ombudsman.”
He added, “The prohibition of disclosure applies to the Ombudsman, that the office cannot disclose [information]. We are not summoning the Ombudsman here.”
Escudero also said that Napoles is not under the jurisdiction of the Ombudsman but the Makati Regional Trial Court, which is handling her serious illegal detention case.
Photo by Franz Lopez/Rappler
Drilon: We are gov’t of laws
Drilon signed the subpoena for De Lima and the whistleblowers in front of reporters and held up the paper afterwards.
“The subpoena is addressed to Secretary de Lima. It is up to her judgment now, if she will defer to Ombudsman on [the appearance of the] whistleblowers,” said Drilon.
Drilon added, “I cannot help but recall that during time of [former President Arroyo], the Senate was prevented from requiring the presence of Cabinet members in investigation on corruption cases. President Arroyo issued EO 464. I was the one who fought it. I would be the last person to allow Senate to be in that same situation.”
De Lima said in the hearing Tuesday that she did not bring the witnesses with her because of the Ombudsman’s confidentiality rule. This angered Guingona, who abruptly ended the hearing.
Drilon said he tried to talk to Guingona but the chairman’s phone was turned off.
The Senate President defended his position. “Suppressing the truth is not consistent with the principles of transparency and accountability but we are a government of laws, not men.”
Asked why Drilon is abiding by the Ombudsman’s advice even when the Senate is not bound by the letter, he said, “The case is already under the jurisdiction of the Ombudsman. And under the Ombudsman Act, she has the power to ensure public disclosures [do] not prejudice the prosecution of the cases.”
Drilon invoked the same law when asked why the Senate was able to investigate the case of former military comptroller Carlos Garcia even if it was already pending in the Sandiganbayan, the anti-graft court.
Yet Guingona rebutted Drilon.
“If we accept the invocation of the Ombudsman's power to protect the confidentiality of matters before it, then the Senate President should not have signed the subpoena for the whistleblowers," the chairman said.
“The different but unreasonable treatment between the whistleblowers and Janet Lim-Napoles raises the obvious question: what is so confidential about Ms. Napoles' possible testimony that it cannot be made under oath before the Senate Blue Ribbon Committee? It just does not make logical and legal sense," Guingona added.
Guingona has pointed to the investigation led by former Sen Nene Pimentel on a case also pending before the Ombudsman. The Supreme Court upheld the Senate’s power then.
Drilon said, “I am sure the Ombudsman was aware of this case and she has given this advice and ruling [on Napoles] so I defer to the ruling.”
Asked about the perception that the Senate was reluctant to summon Napoles, Drilon said, “There is no reluctance. We sought the opinion of the Ombudsman.”
The Senate President refused to answer any more questions.