Miriam: Gigi should be state witness

MANILA, Philippines - The former long-time chief of staff of Senate Minority Leader Juan Ponce Enrile should be tapped as a state witness instead of being charged with plunder as she has enough “direct evidence” to pin him down, Sen. Miriam Defensor-Santiago said yesterday.

Santiago said Gigi Gonzales-Reyes should be tapped as a state witness because “without her testimony, no other direct evidence will be available for the prosecution to prove plunder” against Enrile.

Santiago, a former trial court judge, made the suggestion in her keynote speech at the postgraduate course of the University of the Philippines Department of Emergency Medicine at the Diamond Hotel in Manila.

Reyes was among the 38 individuals – including Enrile – charged with plunder and malversation of public funds before the Office of the Ombudsman. Also charged were Senators Jinggoy Estrada and Ramon Revilla Jr. Based on immigration records, Reyes left the country for Macau days before the filing of complaint by the National Bureau of Investigation (NBI) last Sept. 16.

The Chicago Tribune said in a Jan. 30, 1998 article that Reyes was the “other woman” named in an adultery case filed against Enrile by his socialite wife Cristina.

The story “Filipinos Riveted by Their Own News of High-level Trysts” alleged that Enrile’s “alleged tryst with a top aide prompted his wife of 40 years to leave him this week with the public quip that she no longer could tolerate his chasing after other women, including domestic helpers, cooks and assistants.”

Complaints against lawmakers and their staff stemmed from the alleged anomalous use of the Priority Development Assistance Fund (PDAF) or pork barrel funds by some lawmakers through their dealings with businesswoman Janet Lim-Napoles and her bogus non-government organizations (NGOs).

Whistle-blowers earlier said the chiefs of staff of some lawmakers would often collect for their bosses funds skimmed from PDAF.

Santiago said Reyes does not appear to be the most guilty among those charged and that her testimony “could be substantially corroborated in its material points.”

“There is no evidence that at any time, she has been convicted of any offense involving moral turpitude,” the senator said.

She stressed that whether or not Enrile succeeds in transferring criminal liability to his chief of staff, the conspiracy factor remains evident.

Citing the Penal Code, Santiago said “a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony, and decide to commit it.”

She also said that 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 our laws, he merged his will into the common felonious intent,” she said.

“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,” she said.

Enrile’s lawyer had earlier said his client did not authorize Reyes to sign any documents concerning transactions with Napoles or with any of her NGOs. Reyes had said she felt betrayed by Enrile’s denial.

Santiago explained that circumstantial evidence may be enough to prove conspiracy.

“By its nature, conspiracy is planned in utmost secrecy; this is why it can rarely be proven by direct evidence. 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,” Santiago said. “If the senator was absent during the payoff, this does not constitute proof of innocence.”

Santiago said the theory of conspiracy would serve to place the burden of criminal liability squarely on Enrile, even if only his chief of staff acted directly in arranging for the collection of kickbacks.

For Enrile to be named co-principal in a conspiracy, it is enough that he performed an “overt act in pursuance or furtherance of conspiracy to plunder,” she said.

An “overt act” may mean the senator actively participated in the actual commission of plunder, or provided moral assistance and asserted moral ascendancy over his chief of staff by moving her to execute or implement a conspiracy.

“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,’” Santiago said. “Hence, it is not necessary that both the senator and the COS commit each and every act constitutive of plunder.”

With the plunder complaints now with the Office of the Ombudsman, the anti-graft agency will have to conduct preliminary investigation and examine affidavits and counter-affidavits but not the witnesses, according to Santiago.

If the Ombudsman finds merit in the evidence presented, it will file the case with the Sandiganbayan, an anti-graft court.

Once it receives the case, the Sandiganbayan will automatically suspend public officials named in the case and hold preliminary bail hearing, Santiago said.

She added that “if evidence of guilt is strong,” bail is denied and the accused, including the senators, are detained while on trial.