Senator Ramon “Bong” Revilla Jr. has escaped criminal liability in the pork barrel scam in another narrowly decided vote, with the two dissenters saying it was a “stretch of logic” for their three colleagues to acquit the big boss, but fault his subordinates.

“It requires a stretch of logic to accept that accused Atty. Cambe without the knowledge, much less consent, of Revilla could have utilized the Office of the Senator in secret,” said Sandiganbayan Associate Justice Bayani Jacinto in his dissenting opinion to the 3-2 decision that acquitted Revilla of 16 counts of graft.

Janet Lim Napoles will continue to be tried for graft, while Cambe died earlier this year while serving his sentence at the New Bilibid Prison. Napoles and Cambe were convicted of plunder in the Revilla case in December 2018, with the Sandiganbayan also voting 3-2 at that time to acquit the senator.

This graft acquittal means the senator is off the hook, at least criminally. The question of whether Revilla must pay part of the P124.5 million civil liability in the plunder case still hangs in the air.

Jacinto is one of the two special members picked by raffle to help the Sandiganbayan First Division promulgate a ruling. The other special member, Associate Justice Rafael Lagos, concurred with Associate Justices Geraldine Faith Econg and Edgardo Caldona in acquitting Revilla. Lagos did not write a separate opinion.

The first division chairman, Associate Justice Efren dela Cruz, still dissented as he did in the plunder case.

“This was a master plan involving not just Senator Revilla and Cambe, but also several heads and employees of government agencies, implementing agencies, (non-government organizations) NGOs, and private entities,” said Dela Cruz in his dissenting opinion.

The earlier decision found that it was only Cambe who conspired with Napoles to earn from Revilla’s discretionary pork barrel funds by funneling them through bogus NGOs.

Endorsement letters

Jacinto and Dela Cruz would have wanted to continue trial for Revilla, citing enough evidence by the prosecution to show manifest partiality on the part of the senator in giving preference to Napoles-linked NGOs.

Revilla was acquitted on a granted demurrer to evidence, which means the senator no longer had to present evidence in court.

The majority of three still relied on the plunder acquittal, where another set of three justices found that Revilla’s signatures were forged on the letters endorsing Napoles NGOs to implementing agencies, as well as a confirmation letter to the Commission on Audit (COA) that, it was in fact him, endorsing the projects.

Ombudsman prosecutors presented nine endorsement letters addressed to implementing agencies – eight of them signed by Revilla, one of them signed by Cambe.

Even if the signatures were not forged, the majority of three said the letters were merely recommendatory. The majority of three said the language of the endorsement letters had caveats – using the phrases “as allowed by law,” “subject to government accounting and auditing rules,” etc.

“Even if the endorsement of the NGOs are patently for the benefit of the said privately owned NGOs, the same could not really be considered as a favor to them since Revilla and Cambe did not have the power to award the project or accredit them, this being within the power of the implementing agency only,” said the ruling.

But this was part of the modus, said Dela Cruz, as the senior justice pointed out that it was established during trial that Cambe had told Benhur Luy the signatures were purposely made to look different each time.

“This admission of Cambe to Benhur Luy was a clear indication that accused Revilla and Cambe, a lawyer, had every intention to escape prosecution by setting up forgery as a possible defense if and when it comes to a point that the aforementioned signatures would be brought to question,” said Dela Cruz.

“Logically, if a cautiously well thought-out plan was crafted beforehand and to be implemented later on, every single act of all the parties involved should now be taken as a whole and not independent of each other,” said Dela Cruz.

“Therefore, an endorsement letter from Senator Revilla, while couched in a recommendatory tenor, meant to signal to the next party (the implementing agencies) to execute the next step,” added Dela Cruz.

Why use obiter dictum?

Another ground for the graft acquittal was the majority’s belief that graft is a predicate act of plunder.

“Considering the charge of plunder against Revilla and Cambe is based on the predicate acts, which also constitutes violation of the graft law, the accused’s liability could no longer be determined in the cases as these offenses were already included in the plunder case for which they were already prosecuted for,” said the ruling.

Among the majority’s bases for this reasoning were the dissenting opinions of Supreme Court Associate Justice Marvic Leonen and former chief justice Diosdado Peralta in two separate cases.

In the Jinggoy Estrada plunder case, which the Supreme Court kept alive, and where Peralta was a dissenter, the former chief justice said: “To hold petitioner Estrada liable and indict him separately under a different law (the anti-graft law) for the same acts executed as a means of committing plunder would run afoul to the intent of the plunder law.”

Leonen, on the other hand, wrote in his dissenting opinion to the Gloria Macapagal–Arroyo plunder acquittal: “The Supreme Court’s statements in Estrada vs Sandiganbayan are an acknowledgment of how the predicate acts of bribery and malversation need not be charged under separate information when one has already been charged of plunder.”

Both Jacinto and Dela Cruz criticized the majority for using dissenting opinions as basis for their ruling. Both dissenters said the quoted opinions are what is called obiter dictum, or remarks made in an opinion or decision but which do not form part of precedent.

Econg’s ponencia argued: “The opinions of the Honorable Justices of the Supreme Court in the plunder cases cited above are not in reality obiter dictum. Yes, these opinions may be mere dissenting opinions, but nevertheless, express the learned views of the justices writing on the matter put before the court.”

Jacinto said the ruling even misapplied Leonen’s dissenting opinion.

Jacinto pointed out that in the Arroyo case where Leonen dissented, the crime was malversation, not graft. Jacinto added that Leonen was merely saying the Sandiganbayan did not commit an error in continuing the trial for Arroyo, because even if the former president should be acquitted for plunder, she can still be convicted for malversation.

“With all due respect, I do not see how the opinion [of the majority] is shared by Justice Leonen,” said Jacinto. 

Jacinto is a former assistant ombudsman who was appointed to the Sandiganbayan by President Rodrigo Duterte in 2017. Dela Cruz is a senior justice who had been bypassed by Duterte for both Supreme Court and Ombudsman appointments.

Lagos and Econg have been short-listed by the Judicial and Bar Council for a vacant post at the Supreme Court. – Rappler.com