Napoles, 4 others found guilty in pork scam; ex-lawmaker cleared

Janet Lim-Napoles —INQUIRER FILE PHOTO

The Sandiganbayan has sentenced Janet Lim-Napoles, the so-called brains of the pork barrel scam that came to light in 2013 and who has been behind bars for about a decade, to at least 66 years in prison for four counts of graft and four counts of malversation of public funds.

The latest convictions were for cases involving pork barrel allotted to South Cotabato under then Rep. Arthur Pingoy Jr.

In a decision handed down on Friday, the antigraft court’s Special Second Division also ordered Napoles to pay a total of P41.81 million, covering fines and the amount illegally disbursed.

2 NGOs

Also found guilty and handed a 50-year prison term was Evelyn de Leon, an employee of Napoles in one of her “nongovernmental organizations” (NGOs) that were used as conduits for the funds.

Three former officials of a government corporation were also convicted.

The court acquitted Pingoy, now vice governor of South Cotabato, of the same charges and of direct bribery in another case.

The cases revolved around what became of P20.9 million from Pingoy’s Priority Development Assistance Fund (PDAF) that was allotted for his congressional district from 2007 to 2008. The money was disbursed to two Napoles NGOs—the Social Development Program for Farmers Foundation and Philippine Social Development Foundation Inc. (PSDFI)—supposedly for livelihood projects of farmers. The court heard testimonies on how documents were forged to make it appear that purchases and deliveries were made in connection with the projects.

It also learned that the “agricultural starter kits and livelihood instructional materials” supposedly funded by the PDAF and coursed via the NGOs did not reach their intended recipients in the villages of South Cotabato.

The 57-page decision was penned by Sandiganbayan associate justice Edgardo Caldona, with the concurrence of Associate Justices Arthur Malabaguio and Bernelito Fernandez.

Associate Justice Oscar Herrera Jr., who chairs the Special Second Division, and Associate Justice Efren dela Cruz gave separate concurring and dissenting opinions.

Nabcor officials

Napoles was sentenced to a maximum of six years in prison for every graft conviction, and a maximum of 10 years per conviction for malversation.

Of the four counts of graft, three carried fines of up to P18 million while one required P2.91 million. For the malversation cases, the fines were P2.9 million, P3.6 million, P4.8 million and P9.6 million.

De Leon, who was included in the case as a PSDFI employee, was convicted of graft on three counts and of malversation on three counts. The court also ordered her to pay P36 million.

The antigraft court also convicted three former officials of the National Agribusiness Corp. (Nabcor), the implementing agency for the projects. They were vice president for administration and finance Rhodora Mendoza, accounting division officer in charge Maria Ninez Guanizo, and paralegal Victor Cacal.Fourth conviction

The three ex-Nabcor officials were found guilty on one count of graft and one count of malversation of public funds involving P2.91 million.

READ: Napoles found guilty of 8 graft, malversation raps; given 64 yrs in jail

The Sandiganbayan sentenced Mendoza, Guanizo and Cacal to a minimum prison term of 16 years each, and ordered them return the P2.91 million and a fine of the same amount.

It was the fourth conviction of Napoles, with the first in December 2018.

The businesswoman first made headlines about a decade ago as the so-called brains of the P10-billion pork barrel scam, a scheme exposed by the Inquirer in an award-winning series of reports from 2013 to 2014.In the cases decided on Friday, the antigraft court said that even though her name did not appear in the incorporation papers of the two NGOs, the prosecution established her guilt “beyond any shadow of doubt” based on the testimonies of former employees who turned whistleblowers, namely her second cousin Benhur Luy, Merlina Sunas, Mary Arlene Baltazar and Marina Sula.

The Sandiganbayan said the four witnesses “closely worked” with Napoles and had “personal knowledge” of the transactions and Napoles’ directives concerning the NGOs, such as their incorporation in the Securities and Exchange Commission and the falsification of the trustees’ signatures.

The court also cited their statements that the two NGOs held offices at Napoles’ JLN Corp. and not at the addresses stated in the documents filed with the SEC. They also recalled how their boss merely lent supplies and equipment to these offices on days when authorities were coming for an inspection.

“That Napoles actually operated and/or controlled the involved NGOs is proven by how she had carefully overseen all money-related matters therein,” part of the decision read. “Taken altogether, Napoles’ foregoing acts are concrete evidence of bad faith on her part to defraud the government through the PDAF scam.”

As to Mendoza, Guanizo and Cacal, the Sandiganbayan said it was not convinced that their acts of signing disbursement vouchers and checks to release funds for Napoles’ two NGOs were just “ministerial in nature.”

‘No mere rubber stamps’

This is because as ex-Nabcor officials they “should have raised questions regarding the regularity and legality of the transactions involved in the subject disbursement vouchers,” for they knew that “no public bidding was conducted in relation to the subject PDAF transaction.”

The court said they “should not have treated their own signatures and certifications on the subject disbursement vouchers as mere rubber stamps in the exercise of releasing the said funds.”

“They were duty-bound to ensure that the processes and laws in place were complied with. This is precisely the essence of their public office—to guard the funds and ascertain that they do not go to the pockets of unscrupulous agents by ensuring that the transactions were regular,” it added.

As to Pingoy, the then congressman, his endorsement of the two NGOs without public bidding to the Nabcor and the Technology Resource Center (TRC) as implementing agencies—based on letters dated Feb. 28, 2007 and March 8, 2007—“did not violate the procurement law and rules,” the Sandiganbayan said.

This is because Pingoy made the endorsements prior to the issuance of Resolution No. 12-2007 of the Government Procurement Policy Board on June 29, 2007, which set guidelines on the participation of NGOs in public procurement.

The endorsements, the court said, were also made before the issuance of Commission on Audit Circular No. 2007-001 on Oct. 25, 2007, which also set guidelines related to the audit of funds released to NGOs and people’s organizations.

“Simply put, it was impossible for Pingoy to disregard the aforementioned issuances that were not yet in existence at the time he issued the letters dated February 28, 2007 and March 8, 2007,” the antigraft court said, adding:

“Pingoy’s designation or endorsement of NGOs to implement livelihood projects pursuant to the PDAF articles in the General Appropriations Act concerned, using his PDAF allocation, cannot be considered to have been made in disregard of the provisions on public bidding under the procurement laws and issuances.”

‘Arturo’ vs ‘Arthur’

The decision also noted that Pingoy’s endorsement letters “are not sufficient proof of bad faith on his part,” adding that malice or ill will on the part of the accused should be clearly proven.It found merit in Pingoy’s claim that his supposed signatures on four memorandums of agreement were forged. What appeared on the documents read “Arturo Y. Pingoy Jr.,” while his correct signature was ‘’Arthur Y. Pingoy Jr.,’’ according to his defense.

The Sandiganbayan said the prosecution “failed to prove beyond reasonable doubt that Pinoy ‘appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take’ the funds allocated to him under the PDAF.”

As to the charge of direct bribery against Pingoy, the prosecution also “failed to engender moral certainty” that he committed the crime as there was “no sufficient evidence that Pingoy received kickbacks from Napoles” through a supposed go-between, former Pampanga Rep. Zenaida Ducut.

Even Luy, one of the whistleblowers, admitted that he never saw Pingoy in person or had directly delivered any money to him, the court said. Luy also had no personal knowledge of whether the money he gave to Ducut indeed reached Pingoy.

“While Luy testified that he kept a document called the daily disbursement records that contained Pingoy’s name, it is not a convincing evidence of criminal liability of the persons whose names were indicated therein, unless there is an equally sufficient evidence that will corroborate the entries in such private document,” it said.

Apart from Pingoy, the Sandiganbayan also acquitted Mario Relampagos, Rosario Nuñez, Marilou Bare and Lalaine Paule of the Department of Budget and Management; and Dennis Cunanan, Francisco Figura and Marivic Jover of the TRC.