Ombudsman drops malversation raps in ‘pork’ cases

MANILA, Philippines – While no one was looking, the Office of the Ombudsman dropped the charges of malversation against those dragged in the alleged misuse and abuse by lawmakers of their Priority Development Assistance Fund (PDAF) or pork barrel.

Apart from plunder and graft charges, the Department of Justice had lodged before the Ombudsman malversation charges too against alleged kickbacks financier Janet Lim Napoles and several others in the first batch of complaints filed before the Ombudsman. But when the cases were finally filed with the Sandiganbayan, only plunder and graft charges remained.

Lawyer Levito Baligod, who helped build the case of anomalous PDAF use in the Senate and the House of Representatives, questioned why the malversation charges were dropped when such a crime is easier to prove in court.

Malversation of funds can also be a predicate crime in plunder, in proving that one accumulated ill-gotten wealth.

Sought for comment, an Ombudsman official said the special panel of prosecutors that handled the plunder cases decided to exclude malversation among the charges, in light of the  Supreme Court ruling on the constitutionality of PDAF.

“There’s a question as regards to the accountability of funds. Who has actual custody of the funds?” the Ombudsman official said.

Baligod, however, suspects there is an unseen hand trying to manipulate the cases filed against the lawmakers and several individuals in the pork barrel scam.

What the law says

In several previous rulings, the SC has repeatedly written that the crime of malversation of public funds, under Article 217 of the Revised Penal Code, has 4 elements:

1. That the offender is a public officer
2. That he has custody and control of funds or property by reason of the duties of his office
3. That the funds or property are public funds or property for which he is accountable
4. That he appropriated, took, misappropriated, or consented to, or through abandonment or negligence, permitted another person to take them

The law prescribes the penalty of prision correccional, ranging from 6 months to maximum 6 years imprisonment “if the amount involved in the misappropriation or malversation does not exceed P200.”

The penalty of prision mayor, from 6 to 12 years imprisonment, is imposed “if the amount involved is more than P200 but does not exceed P6,000.”

If the amount involved is more than P22,000, life imprisonment is automatically imposed. Those found guilty, regardless of the penalty imposed, are also perpetually disqualified from public service. 

Based on the 4 elements comprising malversation, Baligod said Senators Juan Ponce-Enrile, Ramon “Bong” Revilla Jr and Jinggoy Estrada should have also been slapped with the crime, apart from plunder and graft charges.

“They are public officials, they have custody and control of the funds, it is public funds and they misappropriated the funds,” Baligod pointed out.

Granting that they they did steal their pork barrel, the lawmakers can still be held liable through negligence when they knowingly funneled their PDAF to bogus non-governmental organizations that were set up by Napoles for the scheme, Baligod said.

Include or exclude?

When the National Bureau of Investigation and the Department of Justice were discussing case build-up with private lawyers on the pork barrel scam, it was initially agreed that the common charges to be filed, with the threshold amount in consideration, would be graft and malversation of public funds.

“For those whose involvement exceeded the P50-million threshold like the senators, plunder would be included,” Baligod said. Thus, when the case was forwarded to the Ombudsman, plunder, graft and malversation of funds were among the complaints cited. (READ: 38 charged in pork barrel scam)

Enrile, Revilla and Estrada however, were indicted for plunder and graft.

In a separate interview, another lawyer for the whistleblowers who asked not to be named, justified the move, saying that in the scheme of things, “you go for the larger crime.” In the case of the senators, it was plunder, since the alleged misused public money amounted to more than P50 million.

In the case of the other respondents, graft charges were filed “to give the prosecution more elbow room” in pinning them down. “What is more important is not the charge per se, but the controlling acts narrated in the complaint…what can be proven in court.”

The lawyer said the court has discretion to impose another penalty for the accused, depending on the facts and the evidence presented. “For instance, if you were charged with murder but the facts and evidence only point to homicide, then one can still be convicted for homicide.”

But Baligod disagrees with the move, since the elements in plunder, graft and malversation are different from each other. “In plunder, the main element is the amassing of wealth through a series of acts. In malversation, there is deliberate misuse of the funds, or misuse resulting from negligence.”

He argued that the penalties for those accused in plunder and graft cannot be downgraded to malversation, if the facts and evidence point to malversation, since these are different crimes covered by different laws.

“Plunder is a special law while malversation is under the Revised Penal Code. In contrast, murder and homicide fall under the same law,” Baligod pointed out.

Baligod said malversation is easier to prove, since the prosecution only has to show that funds in the custody or control of a public official were misused. In the case of the senators, while they may argue that they do not have custody of the funds, the fact that they endorsed their pork barrel to the NGOs shows control where the money should go.

Moreover, if the evidence of guilt is strong and the amount involved is above P22,000, and thus already punishable by reclusion perpetua, malversation becomes a non-bailable offense.

PDAF ruling

But an official from the Office of the Special Prosecutor said there is valid reason for not including the malversation complaint in the first 3 cases filed before the Sandiganbayan. “It is easier to charge than proving it in court,” the OSP official said.

In a malversation case, “there must be actual showing that the public official received the funds and disbursed them. In the pork barrel case, did the lawmaker actually receive the funds and disburse them? That was the consideration.”

The Ombudsman official said the recent ruling on PDAF was also a factor in not pushing through with the malversation charges. “We were guided by the SC ruling. In that ruling, the lawmakers are not accountable for the funds.”

A careful review of the SC ruling on PDAF however does not support this reasoning. In fact, the Court said in several instancs that the pork barrel is under the “effective control” of legislators.

On page 55 of the ruling, for instance, the Court observed that the  pork barrel scheme did not serve as equalizer since lawmakers are allocated public funds without taking into consideration “the specific interests and peculiarities of the district the legislator represents.”

The Court further observed: “Ultimately, the PDAF and the CDF (or the Countrywide Development Fund) had become personal funds under the effective control of each legislator and given unto them on the sole account of their office.”

In resolving PDAF as unconstitutional, the justices precisely pointed out that the legislators’ active role in the identification of projects, fund release, and fund realignment concerning their pork barrel violates the principle of separation of powers. (READ: SC junks PDAF as unconstitutional)

Such post-enactment activity of lawmakers, after the approval of the General Appropriations Act, constitutes grave abuse of discretion, the SC added.

In its concluding statement, the SC reiterated that the pork barrel scheme violated the separation of powers “in so far as conferred unto legislators the power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they themselves determine.” – Rappler.com