File photo by Paterno Esmaquel II/Rappler
MANILA, Philippines – The lawyers of Janet Lim Napoles are busy people these days. They're filing petitions left and right in the hopes of slowly, but surely, overcoming the many hurdles that block her freedom.
The latest move is a petition of certiorari filed before the Supreme Court (SC) in April to trash her graft and malversation cases in connection with the pork barrel of Davao del Sur Governor Douglas Cagas. A copy of the document was released only recently.
A couple of weeks later, the Court of Appeals (CA) acquitted her of a serious illegal detention charge, triggering movement in the pork barrel scam case. It has raised the possibility of turning Napoles, the alleged mastermind, into a state witness possibly immune from suit. (READ: After CA acquittal: What's next for Janet Napoles?)
In her petition to the High Court, Napoles argued that Ombudsman Conchita Carpio Morales committed grave abuse of discretion amounting to lack of jurisdiction when she filed charges before a court with inadequate basis.
Citing the bill of rights which sets the standards of how detailed allegations should be, Napoles said "the complaints do not even provide the approximate time of the commission of the offense, the particular place where the offense was committed and more importantly, the specific acts of omissions constituting the offense."
Napoles was charged with two counts of graft and malversation for owning two non-governmental organizations (NGOs) that handled P16 million worth of projects sourced from the Priority Development Assistance Fund (PDAF) of Cagas when he was a congressman of Davao del Sur.
Napoles allegedly gave Cagas a total of P9.3 million in kickbacks through a middleman, former Energy Regulatory Commission chief Zenaida Ducut.
Other SC petitions
This is not the first time that Napoles ran to the High Court to nullify her PDAF cases. She had previously sought the SC's help to junk her plunder cases on one main contention: she is not a public officer.
But in 2016, the SC denied Napoles' 3 petitions because the High Court said it would not interfere with the prosecutor's or Ombudsman's determination of the existence of probable cause.
On the issue of being a private citizen, the SC said then that private individuals can still be charged if they acted in conspiracy with public officials.
In her latest petition in the Cagas case, she repeated the same argument. She also argued that the allegations fail to prove that she was in on the conspiracy among Cagas and the other government officials charged.
"Evidence of guilt must be premised upon a knowing, personal and deliberate participation of each individual who is charged with others as part of a conspiracy. Although the accused are tried jointly, their guilt should remain individual and personal," Napoles said.
Where does the Napoles case stand?
This is an overview of the Napoles cases in Philippine judicial bodies.
SERIOUS ILLEGAL DETENTION
Office of the Solicitor General: Supported her acquittal of serious illegal detention through a manifestation filed in January 2017
Court of Appeals: Acquitted of serious illegal detention in May 2017
Supreme Court: In 2014, before she was convicted by a Makati trial court, she filed before the CA a petition questioning her arrest and detention. The CA denied her appeals twice. She was forced to run to the SC to overturn the CA's denials but in July 2016, the SC also denied Napoles' petition saying that the trial court did not make a mistake in ordering her arrest.
To be clear, the SC decision in July 2016 only pertained to the issuance of the arrest warrant. It did not cover her conviction.
Office of the Ombudsman: The Ombudsman, the prosecutor in the PDAF cases, has already filed before a court corruption charges against Napoles, including her 5 plunder charges
Sandiganbayan: The anti-graft court is handling all her corruption charges. They have already granted Napoles the right to bail on two plunder charges, but denied her bail in 3 plunder charges connected with former senators Juan Ponce Enrile, Jinggoy Estrada, and Bong Revilla. To be able to gain temporary freedom, all her petitions for bail must be granted.
Enrile, having been denied at the Sandiganbayan level, went to the SC where he scored the victory that has allowed him to walk freely. Napoles' lawyer Stephen David has already expressed their intention to file a new petition for bail.
Meanwhile, she is set to go on trial for plunder in the cases connected with Revilla, Estrada, and former APEC party-list representative Edgar Valdez. Others are still on the pre-trial level.
Supreme Court: The High Court has already dismissed 3 earlier petitions filed by Napoles to junk her graft and plunder charges. They now have on their plate a fresh petition to junk her graft and malversation charges in connection with Cagas' PDAF.
Department of Justice (DOJ): They will reopen the PDAF investigation and will start from scratch, setting aside the earlier findings of the DOJ when Senator Leila de Lima was still justice secretary.
DOJ Secretary Vitaliano Aguirre II said that this time, there would not be selective justice. He has indicated they will target former budget secretary Florencio "Butch" Abad as the "most guilty instigator" of the scam.
Will she be state witness?
Aguirre continuously discusses with the media the possibility of turning Napoles into a state witness, and once claimed that it is he, as the justice secretary, who gets to say whether that will happen or not. (READ: FACT CHECK: What can Aguirre's DOJ do in the Napoles case?)
Under rules of criminal procedure, however, it will be the Ombudsman who gets to recommend before the Sandiganbayan who among witnesses, it wants to turn into a state witness. The Sandiganbayan justices will ultimately decide.
Aguirre, however, as head of the Witness Protection Program, can admit Napoles into the WPP. This is, however, not equivalent to turning her into a state witness.
Whatever the decision may be, it can always be elevated to the SC. As the highest court of the land, the SC has the power to declare with finality whether Napoles will remain a respondent or become a state witness.
Meanwhile, the top concern of the Napoles team for now is to have her transferred to the custodial center of the National Bureau of Investigation (NBI).
DOJ's Aguirre has already asked the NBI to check whether they can accommodate Napoles, but Ombudsman prosecutors are moving that she be returned to the regular jails of Camp Bagong Diwa. – Rappler.com