Sandigan pressed to recall arrest order vs couple in tax credit case

MANILA, Philippines - Two private respondents in a P73-million tax credit scam plunder case against former Finance Undersecretary Antonio Belicena and several other government officials pressed the Sandiganbayan First Division yesterday to recall the warrants of arrest issued against them.

Spouses Faustino and Gloria Chingkoe, who are being charged as owners of Filstar Textile Industrial Corp. to which tax credit certificates were allegedly illegally issued to in the 1990’s, said prosecutors of the Office of the Ombudsman have failed to establish probable cause.

Lawyer Estelito P. Mendoza, in a reply to the prosecution’s opposition to the defense’ motion seeking the recall of the arrest orders, said government lawyers themselves confirmed in their comment that “there is no evidence whatsoever in the record that accused public officers amassed, accumulated or acquired ill-gotten wealth.”

As legal counsel for the couple, he added that the prosecutors agree with the Chingkoes that “plunder is a crime committed by any public officer who amasses ill-gotten wealth through a combination or series of proscribed acts.”

During the hearing on the motion to recall arrest order held last Sept. 16, Mendoza said the prosecution failed to point out the evidence in the voluminous records of the case any piece of document that would prove that accused public officers acquired ill-gotten wealth.

In their comment, he stressed that “the prosecution continues to be unable to point (because there is none) to any particular piece of paper of evidence which shows that accused public officers – Antonio Belicena, Uldarico Andutan Jr., Asuncion Magdaet and Rowena Malonzo - amassed, accumulated or acquired ill-gotten wealth whether they be tax credit certificates or otherwise.”

“Plunder is not committed simply because a public officer fails to perform his official duties but only if he acquires, amasses or accumulates ill-gotten wealth,” he stressed.

Mendoza noted that instead of identifying evidence that would establish the elements of plunder, prosecutors “refers to the joint resolution of the Ombudsman dated Feb. 23, 2009... which is insufficient for the Sandiganbayan to establish probable cause for the issuance of a warrant of arrest.”

“Relying only on the report of the prosecutor constitutes grave abuse of discretion. No less than the Constitution requires that no warrant of arrest shall issue except upon probable cause to be determined personally by the judge; and the judge should not rely solely on the report of the prosecutors,” he said.

He argued that the voluminous records of the case could not show that the crime of plunder has been committed or that the accused public officers acquired ill-gotten wealth. “Absent such evidence, there is no justification for the issuance of a warrant of arrest,” he said.

Mendoza further stressed that “in this case where the crime charged is plunder, a non- bailable offense, the court should even be more circumspect in its personal determination of probable cause. The precipitate issuance of a warrant of arrest, or a warrant of arrest issued without considering the evidence other than the resolution of the investigation officer, is a gross transgression on the constitutional rights of the accused.”

“For purposes of issuing a warrant of arrest, the presumption of innocence may be overcome by evidence establishing probable cause as determined personally by the judge. There being no such evidence in this case, the issuance of the warrants of arrest is in violation of the fundamental rights of the accused and they are consequently void and must be recalled,” he said.