The prosecution is opposing businesswoman Janet Lim-Napoles’ plea for the Sandiganbayan to reverse its ruling denying her petition for bail over a plunder suit in connection with the Priority Development Assistance Fund (PDAF) or pork barrel scam.
Napoles earlier filed a motion for reconsideration before the anti-graft court’s Third Division, which is handling the P172-million plunder case against Sen. Juan Ponce Enrile wherein she is a respondent.
In a 14-page opposition filed before the court on December 21, the prosecution said, “Napoles’s arguments are omitted defenses in the bail hearing and can be considered as matters of defense best proffered during trial on the merits of the plunder case.”
“Significantly, the allegations in support of Napoles’ motion are matters which should have been appropriately presented during the bail hearing as her defense evidence. As such, no second look can be made on the assailed resolution,” it added.
The prosecution asked the court’s Third Division to deny Napoles’ motion for reconsideration for lack of merit.
Last October, the court denied the businesswoman’s bail petition, citing strong evidence, thus prompting Napoles’ camp to file the motion.
The motion argued that the court “seriously erred” in ruling that the prosecution was able to prove that evidence of her guilt for the crime of plunder was strong.
The defense countered that the alleged conspiracy was wanting because there was no overt criminal act that may be ascribed against Enrile or Napoles.
But the prosecution maintained that “[t]hrough the testimonies of the whistleblowers, the prosecution in certain terms proved the scheme or plan [in]which Napoles had actively participated.”
Without the non-government organizations (NGOs) allegedly run by Napoles, it said, Enrile and/or Reyes could not have allegedly siphoned off supposed kickbacks totaling P172 million.
Reyes is Jessica Lucila “Gigi” Reyes, chief of staff of Enrile.
“The prosecution, indisputably, has proven the cohesion and interconnection in the intent and purpose of the acts of Napoles, accused Enrile and Reyes in the scheme. Regardless of how much Napoles gained, there is no denying that her act of setting up fictitious NGOs used by accused Enrile to channel his PDAF was aimed toward aiding the latter and accused Reyes in amassing, accumulating, and/or acquiring ill-gotten wealth,” it said.
According to Napoles’ camp, the court erred in giving weight to the “inconsistent and self-serving” testimonies of the witnesses who blew the lid off the PDAF scam.
It said her employees-turned-witnesses have admitted that they “forged and falsified” documents related to the implementation of PDAF funded-projects and that the court correctly found that her signature does not appear in any of the documentary evidence shown by the prosecution.
But the prosecution said, “These allegations should have boomeranged on her. The testimonies of the whistleblowers as officially written in the Transcript of Stenographic Notes (TSN) are replete with statements that such acts of forgery, falsification and manufacturing of documents were done through the directive or instruction of Napoles being the owner of JLN Corporation and the one in control of the NGOs she created in which the whistleblowers were employed and earning a living from.”
It also took exception to allegation that the testimonies of the key witnesses were self-serving evidence, citing the Supreme Court (SC) case Tuason vs. Court of Appeals in 1995 where the tribunal said that self-serving evidence “is not to be literally taken as evidence that serves one’s selfish interest.”
According to the SC, self-serving evidence is one made by a party out of court and does not include a party’s testimony as a witness in court.
“Not only that Napoles was given opportunity to conduct cross-examination, she grabbed or availed of it with impunity that for Benhur Luy alone, it took her six and a half settings to do the same. The other whistleblowers were likewise lengthily cross-examined by her counsels including the veracity of their respective affidavits,” the prosecution said.
An employee and cousin of Napoles, Luy turned state witness against the businesswoman.
The defense has alleged that the whistleblowers “conveniently devised fictitious orders coming from accused Napoles” to avoid charges.
But the prosecution maintained that the whistleblowers’ testimonies merit full faith and credence.
“Napoles failed to present evidence to prove that the whistleblowers had an axe to grind against [her]. Mere allegation is not proof,” it said.
The prosecution maintained that the Daily Disbursement Reports (DDRs) and Summary of Rebates prepared by Luy were admissible pieces of evidence and that the court’s reliance thereon was made within the bounds of applicable facts and law.
The court “has already admitted the prosecution’s formal offer of documentary evidence including the Summary of Rebates and the DDRs whose authenticity are now being assailed by Napoles. As such the present attack on their authenticity is a rehash of the comments and objections made thereon in the Comment/Opposition (To the Prosecution’s Formal Offer of Exhibits for the Bail Hearing) dated August 24, 2015,” it said.
The prosecution added that it did not suppress evidence when it did not present JLN vouchers as well as Luy’s personal computer, iMac computer and external hard drive.
“The JLN vouchers and the i-Mac computer, as vividly testified to by Benhur Luy were in the control and possession of JLN Corporation or by Napoles. As such, they are at her great disposal. She could have presented the vouchers to disprove all the entries recorded by Luy in the DDRs and so with the i-Mac computer. She neither offered evidence as regards their non-existence. Hence, Luy’s testimony establishing the existence of the vouchers and the i-Mac computer remains unrebutted,” it said.
“Besides, the due execution of the DDRs was significantly amplified when her counsels conducted an exhaustive and lengthy cross-examination by asking Luy in great detail [one by one]or on a per entry basis, the contents of the Summary of Rebates versus the corresponding entries in the DDRs,” the prosecution added.
The arguments hurled against the DDRs are the products of Napoles’ failure to refute their authenticity, it said.
“The DDRs and the Disbursement Vouchers issued by the implementing agencies are sufficient evidence to prove the fact that amounts of money have been disbursed by the government and substantial portions thereof were received by Napoles, through her NGOs and the accused public officers through rebates or kickbacks in the amount of at least P50 million,” it said, referring to the threshold amount of plunder.
Last October, the Sandiganbayan’s Third Division denied Napoles’ bail petition after over a year of bail hearings since August 2014.
The prosecution presented 29 witnesses including key pork scam informants Luy, Marina Sula, and Merlina Suñas as well as Ruby Tuason.
Enrile—who is out on bail after the SC granted his bail petition on humanitarian grounds—is one of three senators charged last year in connection with the PDAF scam, the other two being Ramon “Bong” Revilla Jr. and Jose “Jinggoy” Estrada.
The court’s First Division earlier denied bail to Revilla, his former aide Richard Cambe and Napoles.
The court’s Fifth Division is yet to resolve Estrada’s bail petition.
On December 16, it asked the SC en banc (full bench) for an extension of 15 working days or until January 13 to resolve Estrada’s bail petition.
Napoles is serving life sentence at the Correctional Institute for Women in Mandaluyong City (Metro Manila) after a Makati City court found her guilty in a serious illegal detention case filed by Luy.
Reyes is detained at a Bureau of Jail Management and Penology facility in Camp Bagong Diwa in Taguig City (Metro Manila).
Two other respondents in the plunder case—Napoles’ nephew Ronald John Lim and employee John Raymund de Asis—remain at large.