Ombudsman takes Bolante's plunder case to SC

MANILA, Philippines – The Office of the Ombudsman is not backing down in the plunder case against former Department of Agriculture (DA) undersecretary Jocelyn "Joc-joc" Bolante, who it accuses of being a key player in the P723-million fertilizer fund scam.

Cleared by anti-graft court Sandiganbayan, Bolante still cannot rest easy because the Ombudsman has taken his case to the Supreme Court (SC).

The Sandiganbayan dismissed the case against Bolante in December 2016 due to insufficient evidence. The Ombudsman filed a motion for reconsideration in January 2017; however, after a month, the Sandiganbayan issued a strongly-worded ruling against the Ombudsman affirming their decision. The Ombudsman filed their petition for certiorari before the High Court on March 27, 2017.

In the petition obtained by media, the Ombudsman said the Sandiganbayan committed "grave and reversible error by applying a higher quantum of proof during the stage of judicial determination."

Probable cause vs evidence

Bolante, who was charged for plunder in the fertilizer scam in 2011, was never issued with a warrant of arrest.

At the time of his case's dismissal, the Sandiganbayan was determining probable cause to arrest him. Instead, the anti-graft court dropped the case.

For the Ombudsman, it is not "accord with law" to dismiss a case at such an early stage.

"The Constitution and the rules of criminal procedure clearly require only probable cause, and that based on record, there is probable cause against the respondents," the Ombudsman said in their 31-page petition to the SC.

When the Sandiganbayan cleared Bolante, the court said there was not enough evidence to link the former DA executive to the scam. The court even called it only "musings" by the Ombudsman prosecutors to accuse Bolante of plundering more than P50 million in public funds.

For the Sandiganbayan, the evidence of ill-gotten wealth going to local officials and certain persons in the regional offices of the DA does not point to Bolante as being one of the masterminds, nor does it point to his participation at all.

The Sandiganbayan insists that several SC decisions allow them to dismiss a case before a warrant is issued. In their strongly-worded decision in February, the court "reminded prosecution to refrain from interfering with the court's judicial functions."

In their petition to the SC, the Ombudsman insists that the court cannot immediately dismiss a case when it does not find evidence sufficient, because for them, the weight of the evidence will be decided upon going to trial.

Fertilizer fund scam

The fertilizer fund scam came way before the pork barrel scam but the processes are very similar. In the scam, the DA funds are funnelled to suppliers and foundations. The funds, as in the pork scam, do not reach the farmers.

Aside from that, the supplies were also grossly overpriced. According to state witness Jose Barredo, local leaders and lawmakers colluded with Feshan Philippines Incorporated to sell them liquid fertilizer that is 7 times more expensive than another brand.

Barredo said he personally delivered the kickbacks to officials. He also pointed to active bank accounts which could prove the transaction. 

It was believed the funds were instead used to finance the political allies of former president and now Pampanga 2nd District Representative Gloria Macapagal-Arroyo for the May 2004 polls.

But for the court, even with Barredo's testimony, the evidence remains weak that Bolante amassed at least P50 million, the threshold amount for plunder.

"Sandiganbayan, with all due respect, has unreasonably defended its use of "at the very least, prima facie evidence" and not probable cause with these bold but erroneous pronouncements," the Ombudsman told the SC.

A prima facie evidence means a "first sight" evidence that is enough to raise a presumption and merits a court's action. For the Sandiganbayan, there was no prima facie evidence against Bolante. For the Ombudsman, prima facie is not yet required at that stage, only probable cause.

Bolante's role

The Ombudsman reiterated that it was Bolante who requested the funds from the Department of Budget and Management (DBM).

It was also Bolante who submitted the list of project proponents even if these organizations were not qualified to undertake the projects under the standards of the Agriculture and Fisheries Modernization Act (AFMA).

"Notable is Bolante's wanton disregard for accountability for public funds amounting to P723 million, when, he, intentionally and with evident bad faith, did not mointor the implementation, progress and completion of the project which resulted in the misappropriation, re-alignment and diversion of fertilizer fund to other purposes," the Ombudsman said.

The Ombudsman anchors its plunder ground on the P56 million DA funds still unaccounted for. These were funds allocated for the Farm Inputs and Farm Implements Project (FIFIP) of the DA, which Bolante funded through a request to the DBM.

The unliquidated funds, according to the Ombudsman, is a "clear and concrete proof of diversion, misappropriation, misuse or malversation of public funds."

The Ombudsman also challenges the dismissals of cases against Bolante's other co-accused: former DA secretary Luis Ramon "Cito" Lorenzo Jr, former DA assistant secretary Ibarra Poliquit, and private defendants Jaime Paule, Marilyn Araos, Joselito Flordeliza, Marites Aytona, and Leoncia Marco-Llanera.

In March 2017, the Sandiganbayan also cleared former DA officer-in-charge Regional Technical Director Rodolfo Guieb and DA Regional Executive Director Dennis Araullo due to inordinate delay.

Former Palawan governor Joel Reyes has also appealed Sandiganabayan for a dismissal of his case also using the grounds of inordinate delay.

The Bolante petition comes amid conflicts between Ombudsman and Sandiganbayan largely rooting from the court's dismissal of cases because of the 'delay' doctrine. The Ombudsman has also petitioned the High Court to strike down the doctrine. – Rappler.com

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 lian.buan@rappler.com or tweet @lianbuan.

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