PRIMER ON THE PCSO PLUNDER CASE VS PGMA ET AL

Plunder of RA 7080 was passed in 1991 to prevent government officials from stealing from government coffers. The law was signed by then Senator Joseph Estrada but ironically would later be one of the ranking officials to be charged and convicted under the same law. The pertinent provision of RA 7080 as amended is hereby quoted: Sec. 2. Definition of the Crime of Plunder; Penalties. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all illgotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. RA 7080 has the following elements (Estrada vs Sandiganbayan): 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or

undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. The said elements must be present in order to establish at least probable cause that the crime of Plunder had been committed. But does the Information and the supporting evidence for Plunder filed against GMA establish said elements? The following is the Information as filed before the Sandiganbayan:

INFORMATION The undersigned Assistant Ombudsman and Graft Investigation and Prosecution Officer II, Office of the Ombudsman, hereby accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR AND NILDA PLARAS, of the crime of PLUNDER, as defined by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as amended by R.A. No. 7659, committed, as follows:

That during the period from January 2008 to June 2010, or sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused GLORIA MACAPAGAL ARROYO, then President of the Republic of the Philippines, ROSARIO C. URIARTE, then General Manager and Vice Chairman, SERGIO O. VALENCIA, then Chairman of the Board of Governors, MANUEL L. MORATO,

JOSE R, TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. VALDES, then members of the Board of Directors, BENIGNO B. AGUAS, then Budget and Accounts Manager, all of Philippine Charity Sweepstakes Office (PCSO), REYNALDO A. VILLAR, then Chairman and NILDA B. PLARAS, then Head of Intelligence/Confidential Fund Fraud Unit, both of the Commission on Audit, all public officers committing the offense in relation to their respective offices and taking undue advantage of their respective official positions, authority, relationships, connections or influence, conniving, conspiring and confederating with one another, did then and there willfully, unlawfully and criminally amass, accumulate and/or acquire, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP 365,997,915.00), more or less, through any or a combination or a series of overt or criminal acts, or similar schemes, means, described as follows: (a) Diverting, in several instances, funds from the operating budget of PCSO to its Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal restrictions, and converting, misusing, and/or illegally conveying or transferring the proceeds drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the guise of fictitious expenditures, for their personal gain and benefit; (b) Raiding the public treasury by withdrawing and receiving, in several instances, the abovementioned amount from the Confidential/Intelligence Fund from PCSOs

accounts, and/or unlawfully transferring or conveying the same into their possession and control through irregularly issued disbursement vouchers and fictitious expenditures; and (c) Taking advantage of their respective official positions, authority, relationships, connections or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Contrary to law. Quezon City, 10 July 2012.

WEOMARK RYAN G. LAYSON Assistant Ombudsman ANNA FRANCESCA M. LIMBO Graft Investigation and Prosecution Officer II BAIL NOT RECOMMENDED APPROVED: CONCHITA A. CARPIO-MORALES (13 July 2012) Ombudsman

BRIEF SUMMARY OF THE CASE In July 2011, the Senate Blue Ribbon Committee conducted a legislative inquiry in the supposed anomalies by officials of the PCSO during the Arroyo administration. After the Senate inquiry, the two complaints were filed before the Office of the Ombdusman. Two separate criminal complaints for Plunder, Malversation and violation of R.A. 3019 were filed by Jaime Regalario, Risa Hontiveros-Baraquel, Danilo Lim and the PCSO represented by Eduardo G. Araullo.

Allegations raised: The 2008 Corporate Operating Budget (COB) of the PCSO allocated P28M as its CIF for the year. On 2 April 2008, a Memorandum for the approval additional P25M in intelligence fund to conduct surveillance discreet investigations, purchase of information and other related activities in order to protect its image and integrity of its operations was sent to GMA for approval. In another Memorandum dated 13 August 2008, Uriarte again requested GMA for the approval of additional P50M. It was approved by GMA. Of the total P103M CIF for 2008, P86M was disbursed as cash advance Uriarte and Valencia in increments. Each voucher contained Aguas certification that (a) the funds were available/budgetary allotment in the indicated amount existed; (b) the expenditure was properly certified and supported by documents; and (c) previous cash advances were liquidated/accounted for. In 2009, the COB allocated P60M as its CIF. Uriarte in a Memoranda dated 19 January 2009 asked GMA to approve an additional P50M which she approved in writing. In another Memorandum dated 27 April 2009, Uriarte again asked GMA to approve an additional CIF in the amount of P10M which was granted through then Executive Sec. Ermita. Of the P150M CIF in 2009, more than P138M was paid in increments to Uriarte and Valencia. In 2010, the COB allotted P60M as CIF. Uriarte, in her Memoranda dated 4 January 2012, requested Arroyo to approve an additional P150M CIF which she approved. Of the PCSOs CIF of P210M, more than P141M was released in increments to Uriarte and Valencia as cash advances.

The 2010 vouchers also contained the same certification from Aguas. Regalario, Baraquel and Lim (first complaint) submitted the following allegations in support of their complaint (a) the CIF is in itself questionable because neither the PCSO charter, nor the GAA for 2008, 2009 and 2010 grant intelligence funds to the PCSO; (b)Uriarte in conspiracy with the other respondents malversed substantial advances from the CIF because she did not account for the same; (c) the release of intelligence funds was done in bad faith vecaise there was no actual intelligence project to be funded in the first place; and (d) the respondents regular and methodical system of unlawful requests for, approvals of and irregular liquidations of so-called intelligence funds of the PCSO constituted Plunder. The first complainants submitted the Transcript of Stenographic Notes of the Senate hearing on 7 July 2011. In the complaint filed by Araullo (second complaint, he claimed that PCSOs CIF formed part of its operating expenses as it was approved by President Estrada in 2000 amounting to P10M and to be used as confidential and counter-intelligence purposes such as monitoring of charity projects and counter scams perpetrated against lotto bettors and winners. He also claimed Villar and Plaras issued credit notices and advices pertaining to the withdrawals even though the same were not properly liquidated and substantiated. Thereafter, in a ruling contained in Review Joint Resolution, the Ombudsman filed Plunder against Arroyo et. al but exonerating Ermita for lack of evidence.

INFIRMITIES OF THE PLUNDER CASE: No legal basis. (Grounded not on established facts and evidence on record, but on mere presumptions, suspicions and conjectures which are insufficient to pierce the shield of the constitutional presumption of innocence in favor of GMA and the other accused.) 1. GMAs participation is limited only to approving the additional CIF as conceded by the Office of the Ombudsman itself. But the Ombudsman in the same resolution admitted that the act of requesting and approving additional CIF for confidential or intelligence related activities in line with the agencys primary purpose is not irregular per se. 2. Far from taking advantage of her official position, GMA in approving the additional CIFs merely performed her official function under LOI No. 1282. 3. If GMAs participation, therefore, was limited to approving the requests for CIF, how can she be indicted for the subsequent misuse of the same when, as conceded by this Honorable Office itself, such approvals pass through the PCSO Board for

confirmation and thereafter PCSO management for release, disbursement, use and liquidation? 4. No evidence whatsoever was proffered to show that GMA received any part of the amounts disbursed by the PCSO from its CIF during the whole period of three (3) years, not even a single cent. 5. Note that all the disbursements were duly audited and found compliant with COA Circular 2003-002. 6. No evidence was cited by the Ombudsman to show that GMA used any portion of the subject CIF or directed or instructed any of the other respondents to use PCSOs CIF for any purpose. 7. The inclusion of GMA in the purported conspiracy is based solely on her marginal notation OK appearing on the requests for additional CIF, nothing more. Apart from this, no other overt act is imputed to her. There was even no evidence at all that GMA intervened in the approval of the CIF by PCSO and the subsequent disbursements thereof. 8. GMAs mere signature or approval on the requests for additional CIF is not enough to sustain a finding of conspiracy with the other respondents. As held by the Supreme Court in Arias v. Sandiganbayan, there should be facts other than the mere signature or approval appearing on a document to sustain a conspiracy charge. It would be setting a bad precedent if a head of office can be suddenly swept into a conspiracy charge simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority. 9. GMAs singular act of approving the requests for additional CIF cannot constitute a conveyance of PCSOs CIF. Without the appropriate action of PCSO itself, no allocation, release and disbursement of any CIF can be made. 10. Even after approval of PCSOs requests for additional CIF, the same is still subject to the required certification of availability of funds by the appropriate officers of PCSO and the pertinent accounting and COA rules and regulations in the release, disbursement and liquidation of the funds. All these requirements were complied with by the responsible officers of PCSO in accordance with such COA rules and regulations. 11. In fact, COA has approved the liquidation of the additional CIF subject of each request of PCSO and it has issued corresponding credit advices therefor. This can only mean that COA, as the constitutional body tasked to determine the propriety of disbursements of public funds of all government agencies, had passed upon, approved and determined as regular and above-board, the use of the subject CIF of PCSO. 12. It is not true that respondents Uriarte and Valencia are under the direct control of GMA. As General Manager and Chairman of the PCSO, respondents Uriarte and Valencia acted within their own discretion as officers of PCSO. The exercise of direction and control over the corporate affairs and the daily operations of PCSO is not a mere act of administration on the part of the PCSO Board and General Manager; their acts involve the exercise of discretion.

13. Since the PCSO Board and the General Manager have respective direction and control over the corporate affairs and operations of PCSO, their acts cannot be deemed presumptive acts of GMA as to justify a conclusion of conspiracy between them. 14. The act imputed to GMA involves an act which falls within her function and duty as President of the Republic under LOI No. 1282, which states that it is the Presidents function and duty to approve the CIF of GOCCs, such as the PCSO. 15. The case of Magsuci v. Sandiganbayan is instructive. In that case, the Supreme Court held that there can be no conspiracy charge where the respondent official was merely performing his official functions and duties without foreknowledge of any irregularity.