Press Release
September 26, 2013

The Pork Scam and the Principle of Conspiracy

I have made it my business to inform the Filipino public of the legal procedures and processes involved in the foul and nauseating soap opera known as the pork barrel scam. Recently, a former Senate president, who is a person of interest in plunder, said thru his lawyer that he never authorized his chief of staff, or COS, to sign or agree to any transaction with the alleged mastermind Janet Lim Napoles.

The COS, who is now in Macau, reacted thru her Facebook account by saying that she did not expect this kind of betrayal, or in Tagalag, "laglagan."

Whether or not the senator succeeds in transferring criminal liability to his COS, it appears that between the two of them there was a conspiracy. The Penal Code provides that: "A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony, and decide to commit it." The basic effect of conspiracy in criminal law is that the act of one is the act of all.

Assuming for the sake of argument that giving pork barrel funds to the phony Napoles NGOs was the criminal design of his COS, under jurisprudence, he merged his will into the common felonious intent. The senator can no longer repudiate the conspiracy, after it had already materialized. To free himself from criminal liability, the law requires an overt act on the part of the conspirator. To avail of his defense, the senator should show evidence that he tried to prevent commission of the other PDAF releases, or that he tried to abandon or dissociate himself from his COS during the initial release of funds.

According to the Supreme Court: "It is essential that there will be unity of purpose and unity in the execution of the unlawful objective." No COS will be able to act and behave authoritatively, unless she has the full support of her senator. Again, let me quote the Supreme Court: "What is required is assent to the perpetration of such misdeed. That must be their intent."

And in another case, the high court said: "Conspiracy is always predominantly mental in composition." A conspiracy consists of the meeting of the minds. Complicity may be inferred from circumstantial evidence, which means that there was a community of purpose and the unity of design which is so obvious in the case of a senator and his COS. There is no need to show that the senator received the money himself, because the action of the COS proved that there is sufficient circumstantial evidence. If the senator was absent during the pay-off, this does not constitute proof of innocence.

In another case, the Supreme Court said: "The material tendency of conspirators who had planned a crime is for the rest to be arranged somewhere other than the scene of the crime." There is no requirement of direct proof. What is required is assent to the perpetration of plunder.

Thus, the theory of conspiracy will serve to place the burden of criminal liability squarely on the senator, even if only his COS acted directly in arranging for, and the collection of, the kickbacks. If the senator was a co-principal by reason of conspiracy, it is sufficient that the senator performed an overt act in pursuance or furtherance of conspiracy to plunder. Such an overt act may consist of one of two things:

  • Either the senator actively participated in the actual commission of plunder, or

  • The senator provided moral assistance and asserted moral ascendancy over his COS by moving her to execute or implement the conspiracy.

As shown by now, the mere fact that the crime of plunder took place over a period consisting of many years, by itself shows what the law calls "implied conspiracy." Hence, it is not necessary that both the senator and the COS commit each and every act constitutive of plunder.

Even if the COS acted on her own, if the senator was the determining cause of the crime, he is equally if not more guilty. In the words of the Supreme Court: "The inducer must have such an overpowering moral ascendancy over the actor, as to make the utterance a command from a superior to a subordinate."

When the senator washed his hands by disclaiming any authorization to his COS, the senator does not necessarily escape criminal liability for plunder. Evidence of conspiracy does not have to be direct; circumstantial evidence is sufficient, if it shows a concerted plan to further the common objective of plunder. By its nature, conspiracy is planned in utmost secrecy; this is why it can rarely be proven by direct evidence.

Let me summarize for you the five-step process to obtain a conviction for plunder:

  • Fact-finding by the NBI, undertaken by getting the affidavits and other supporting documents from the whistleblowers.

  • Filing by the NBI of a complaint for plunder with the Ombudsman.

  • Preliminary investigation by the Ombudsman, during which affidavits and counteraffidavits are presented, without examining the witnesses.

  • Resolution by the Ombudsman to file the case in the anti-graft court known as the Sandiganbayan.

  • Trial by the Sandiganbayan.

Under the Anti-Plunder Act, as soon as the Ombudsman files her complaint for plunder with the Sandigan, two events will concur:

1. The Sandigan will automatically suspend from office the public officials who are accused, and

2. The Sandigan will hold a preliminary bail hearing, to determine if evidence of guilty is strong. If so, then bail will be denied and the accused, including the senators, will be detained while the trial is held.

In the case of the COS concerned, I humbly propose that since she herself is charged with plunder, she is eligible as a state witness, for the following reasons:

1. There is absolute necessity for her testimony with respect to the senator.

2. Without her testimony, no other direct evidence will be available for the prosecution to prove plunder against that particular senator.

3. Her testimony could be substantially corroborated in its material points.

4. She does not appear to be the most guilty.

5. There is no evidence that at any time, she has been convicted of any offense involving moral turpitude.

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