Assessing the would-be charges vs Marcos and just-filed charges vs Sara

FOLLOWING is the evaluation by lawyers consulted by former congressmen Matias and Michael Defensor on the allegations against President Ferdinand Marcos Jr: According to the testimonies of Public Works Undersecretary Roberto Bernardo and former congressman Zaldy Co, they allegedly delivered amounts totaling P25 billion and P52 billion in kickbacks to President Marcos Jr. and former speaker Martin Romualdez. The process allegedly begins with budget insertions, followed by approval and the awarding of projects to the Department of Public Works and Highways’ favored contractors. These contractors then extracted 25 percent of these projects’ cost and delivered the money to Marcos and Romualdez in their residences in suitcases containing sums amounting to billions of pesos.

The probative value of the evidence must be evaluated in light of existing statutes and established jurisprudence of the Supreme Court of the Philippines.

Under Philippine law, the Supreme Court accords significant probative value to the confession of an accused who implicates his co-conspirators, particularly when the accused is discharged and becomes a state witness, as in the following cases:

– People v. Cerilo de Leon (GR L-36443, March 8, 1984).

Crime: Kidnapping for ransom with murder.

The Supreme Court affirmed the conviction based on the testimony of an insider (Jose Arandia), which was corroborated by independent evidence.

– People v. Romeo Padica & Leon Marajas Jr. (GR 102645, April 7, 1993). Crime: Kidnapping for ransom with murder.

The court upheld the testimony of a discharged accused and relied on it to convict the co-conspirators.

– People of the Philippines v. Antonio L. Sanchez, et al. (GR 121039–45, Jan. 25, 1999). Crime: Seven counts of rape with homicide.

The testimonies of co-conspirators Aurelio Centeno and Vicencio Malabanan were admitted and relied upon to establish the guilt of the mayor and his accomplices.

Evidence such as the ledger reportedly held by Co — together with photographs and other documentary records — is of critical importance. A ledger, notebook, or any privately written record may constitute admissible and persuasive evidence when properly authenticated.

Ledgers

The following cases illustrate how ledgers and documentary records have been evaluated by the courts:

– People v. Fabro (GR 234496, June 17, 2019)

The Supreme Court upheld the admission into evidence of the accused’s notebook which contained lists of sales and buyers, as circumstantial evidence and as an admission of involvement in illegal activity.

– Napoles v. Sandiganbayan (GR 224162, Nov. 7, 2017) Crime: Plunder (violation of RA 7080).

The Court dismissed Napoles’ petition and ruled that files recovered from Benhur Luy’s hard drive — his digital ledger — supported by testimony explaining the syndicate’s internal operations, constituted strong and convincing evidence of guilt.

– People v. Sendaydiego (GR L-33252–54, Jan. 20, 1978) Crime: Malversation of public funds through falsification of public documents.

Although not a handwritten notebook, the thousands of pages of vouchers, logbooks and accounting records formed a documentary trail sufficient to overcome the accused’s denials.

Not yet included are potential testimonies from Co’s staff Mark Ticsay, Paul Estrada and approximately 90 members of Co’s security detail, who can attest to the collection, transport and delivery of the funds.

Taken together, the testimonial and documentary evidence point to a deliberate, organized and systematic scheme. The pattern is unmistakable justifying a conviction, based on our laws on jurisprudence of Marcos and Romualdez.

On Sara’s case

Following is an analysis posted on his Facebook page by veteran lawyer and former state prosecutor Anthony Ludalvi Vista, on the plunder case filed at the Ombudsman’s Office by eight people who, I’m convinced, are certified crackpots seeking media limelight or something else, not one of them a lawyer, obviously to distract the public from the cases against Marcos:

“When the complaint is examined carefully, step by step, it becomes clear that it cannot stand as a criminal case. It is built on a narrow factual basis, depends on evidence that is either unavailable or legally protected from disclosure, and fails to meet the requirements of probable cause — especially under the strict rules governing plunder. Even assuming the best intentions, the case is legally untenable.

A complaint for plunder and related offenses was filed before the Office of the Ombudsman against Vice President Sara Duterte and several other officials. The complaint invokes Republic Act 7080, the Plunder Law, and alleges that approximately P612.5 million in public funds were unlawfully handled during [Duterte’s] tenure.

At present, there is no criminal case pending in court. No information has been filed before the Sandiganbayan. The matter remains at the preliminary stage at the Ombudsman, whose task is to determine whether probable cause exists to justify further proceedings.

This stage is meant to filter out weak cases. It is not intended to legitimize accusations simply because they have been filed.

Misuse

Based on consistent news reports, the complaint rests entirely on the alleged misuse of confidential and intelligence funds released to the Office of the Vice President, and in some accounts, to the Department of Education.

There are no allegations of kickbacks from private contractors. There is no tracing of funds to personal bank accounts. There are no claims of properties, vehicles, or other assets acquired through public money. There is no allegation that identifiable wealth was accumulated by the vice president.

The theory of the complaint is therefore limited. Everything depends on whether confidential funds were illegally used. If that cannot be established, the complaint has no foundation.

This is the central weakness of the case.

To sustain a charge of plunder, there must be proof that public funds were unlawfully acquired or accumulated as private wealth. This is not a matter of inference or suspicion. It requires concrete facts showing that money intended for public purposes ended up as personal gain.

As matters stand, no such facts have been publicly established. What exists are assertions that confidential funds were spent and that the manner of spending raises questions. But criminal liability cannot rest on questions alone. Concern is not proof, and secrecy is not illegality.

Exclusive

The Constitution assigns the Commission on Audit exclusive authority to audit public funds. That authority extends to confidential and intelligence funds, which are audited under special rules because of their sensitive nature.

Confidential funds are not unlawful by default. They are appropriated by Congress and allowed by law. Their audit is restricted not to shield wrongdoing, but to protect legitimate state interests. This is a legal framework established by statute and long practice.

Only COA can determine whether confidential funds were used in violation of law. Without COA’s findings, no other body can lawfully conclude that misuse occurred.

The Ombudsman does have the authority to compel cooperation from government agencies, including COA, in the course of investigations. That authority, however, operates within the bounds of law.

When it comes to confidential and intelligence funds, disclosure is restricted by statute and audit rules. Even COA itself is bound by these confidentiality requirements. The Ombudsman cannot lawfully compel the disclosure of details that the law protects.

Ombudsman

If the Ombudsman’s Office had the power to override these restrictions, it would not be asserting that power only now. It would have done so in past controversies involving confidential funds. The fact that it has not reflects a legal boundary, not institutional reluctance.

COA may initiate action or disclose findings if it determines that the law has been violated. But absent such action, the ombudsman cannot force disclosure simply to support a complaint.

Probable cause requires a reasonable probability, based on evidence, that a crime has been committed and that the respondent is probably guilty. This standard cannot be met through speculation or assumption.

For plunder, the requirement is even stricter. This was made clear in the plunder case against former president Gloria Macapagal-Arroyo. In that case, the Supreme Court emphasized that plunder is a personal crime. The accumulation of ill-gotten wealth must be attributable to a single public officer. It is not enough to allege collective wrongdoing or institutional misuse. The law requires proof that one identifiable official personally amassed wealth amounting to at least P50 million through illegal acts.

This doctrine is critical. Plunder does not arise from the mere existence of questioned expenditures. It arises only when personal accumulation is shown. Without proof that the vice president had personally acquired wealth, the crime of plunder cannot exist.

Given the unavailability of evidence, and the legal restrictions on accessing confidential fund details, there is no basis to establish even a probability that such personal accumulation occurred. Without that probability, probable cause cannot be found.

Even if one were to assume, for argument’s sake, that probable cause could somehow be established, the complaint would still be constitutionally barred.

The vice president is an impeachable official. Under the Constitution, impeachment is the exclusive method of accountability for impeachable officials while they remain in office. This rule exists to prevent criminal prosecution from being used as a political weapon.

The ombudsman may investigate and preserve evidence, but it cannot file a criminal case in court against a sitting vice president for acts committed during incumbency. Any attempt to do so would violate the Constitution.

The complaint is based solely on confidential funds. Evidence necessary to establish illegality and personal enrichment is either unavailable or legally protected from disclosure. The strict requirements of plunder, including personal attribution, cannot be met. Probable cause therefore cannot exist. Under the law, this case goes no further.

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Assessing the would-be charges vs Marcos and just-filed charges vs Sara
Source: Breaking News PH