JANET Lim-Napoles, the alleged mastermind of the pork barrel scam, has asked the Supreme Court to dismiss the graft and malversation charges filed against her and former Davao del Sur Rep. and now Governor Douglas Cagas and several others in connection with the Priority Development Assistance Fund (PDAF) scam, claiming the witnesses had peddled hearsay.
In a petition for review filed before the high tribunal, the defense challenged the Office of the Ombudsman’s issuance of a consolidated resolution that found basis to file the charges, and of the consolidated order that denied Napoles’ motion for reconsideration.
Her camp argued that the Ombudsman “committed grave abuse of discretion amounting to lack or excess of jurisdiction, when it issued the assailed Consolidated Resolution and Consolidated Order based on hearsay, self-serving and totally inadmissible evidence.”
“The allegations of the witnesses in their various sworn statements, aside from being contradictory, are inaccurate,” the defense said in the petition, a copy of which was furnished the Sandiganbayan.
Napoles’ camp asked the high tribunal to set aside the Ombudsman’s consolidated resolution dated June 2, 2016 and consolidated order dated November 17, 2016 “for being issued with grave abuse of discretion.”
The Ombudsman filed the cases before the Sandiganbayan in March, alleging that Cagas “unilaterally chose and indorsed” two supposedly “unaccredited and unqualified” non-government organizations (NGOs) as “project partner” in implementing a PDAF-funded livelihood project in Davao del Sur’s first district. The project turned out to be non-existent.
In a separate motion that sought the dismissal of the cases, Cagas’ camp said he could only make recommendations to the Technology and Livelihood Resource Center (TLRC) as to which NGO to give the money to, and that he never ordered the TLRC to choose the Countrywide Agri and Rural Economic and Development Foundation Inc. (Cared) nor the Philippine Social Development Foundation Inc. (PSDFI) to be the recipients.
Cared and PSDFI are NGOs that were allegedly ran by Napoles.
‘Napoles not a public officer’
The defense argued that Napoles “cannot give unwarranted benefits, advantage, or preference to any party having transactions with the government” because she is not a public officer, adding that “there is no iota of proof showing any overt act that could constitute her participation in any conspiracy to commit the same.”
Under Section 3(e) of Republic Act 3019 (Anti-Graft and Corrupt Practices Act), public officials are prohibited from causing undue injury to any party, or giving any private party any unwarranted benefits, advantage or preference in the discharge of their official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.
Napoles’ camp also said that “if the legislator with whom the petitioner (Napoles) is accused as an alleged conspirator is not legally liable for malversation, the petitioner as a consequence is also not legally liable for it.
As defined, the petitioner by herself alone cannot be made liable for malversation. She is a private individual and malversation can be committed only by a public officer.”
It also argued that lawmakers cannot be held liable for malversation because they do not have custody or control of the funds by reason of their office’s duties, alleging that “it is the implementing agency which has custody or control of public funds or property and has the power, responsibility and accountability to the government.”
Cagas’ camp added in its motion that the ex-lawmaker “had no hand” in the project implementation which “was solely between the TLRC and Cared and PSDFI.”
It also said that “[t]he releases of the funds to Cared and PSDFI were likewise beyond the authority of the accused (Cagas). Accused’s PDAF funds never passed through his hands.”