DOJ: Malversation easier to prove than plunder raps

In a major shift in legal strategy, the Department of Justice is planning to file malversation instead of plunder charges against the next batch of senators, representatives and fake nongovernment organizations to be charged in the pork barrel scam. INQUIRER.net FILE PHOTO/RYAN LEAGOGO

MANILA, Philippines–In a major shift in legal strategy, the Department of Justice (DOJ) is planning to file malversation instead of plunder charges against the next batch of senators, representatives and fake nongovernment organizations (NGOs) to be charged in the pork barrel scam.

A DOJ official, who agreed to speak on condition of anonymity for lack of authority, said a malversation case did not require a whistle-blower and did not have the stringent P50-million threshold for theft, unlike a plunder charge.

But just like plunder, the source said, malversation was a nonbailable offense.

“Plunder is just much better to hear than malversation, but both have the same results. And malversation is much easier to prove than plunder,” the DOJ official said.

The DOJ and the National Bureau of Investigation have filed two sets of cases in connection with the pork barrel scam.

Accused in the first set were 38 individuals led by Senators Juan Ponce Enrile, Jinggoy Estrada and Ramon Revilla Jr. and alleged scam mastermind Janet Lim-Napoles. They are under detention in police jails, except for Enrile who is in the Philippine National Police hospital.

The second set involves 34 individuals including former Muntinlupa Rep. Rozzano Rufino Biazon, former Oriental Mindoro Rep. Rodolfo Valencia, former Davao del Norte Rep. Arrel Olano, former Davao del Sur Rep. Marc Douglas Cagas IV, former Ilocos Sur Rep. Salacnib Baterina, former South Cotabato Rep. Arthur Pinggoy Jr. and former Davao del Sur Rep. Douglas Cagas.

Prosecutors’ difficulty 

The source said malversation cases would likely be filed in the next batch of pork scam cases involving transactions with Napoles’ NGOs during the Aquino administration.

The source said the change in legal tactics was being mulled in view of the difficulty being experienced by state prosecutors in proving plunder, which has a more stringent standard than malversation.

The source said the prosecutors would have to prove that the accused repeatedly received kickbacks of not less than P50 million through the misappropriation of government funds.

But in malversation, the source said, the burden of proof is shifted to the public official to prove the funds under his keeping were properly spent, and the amount could be as small as P22,000 to get the maximum penalty.

Also, the source said, a malversation case would primarily require documentary evidence compared to plunder where whistle-blowers, like Napoles’ employees who turned on her, were essential.

“It’s like a murder case. If you can’t prove treachery, you can always charge the accused with homicide which involves a jail penalty too,” said the source.

The DOJ official said that in case the accused in the pork barrel scam would not be charged with plunder, they would likely be nailed on graft charges.

“The senators’ main defense is to blame the implementing agencies for failing to ensure that the NGOs implemented the projects properly, noting that this was the reason why they took management fees from the PDAF transactions. The implementing agencies, however, contend that the senators themselves endorsed the specific NGOs as recipients of their pork and that their [memorandums of agreement] had a provision wherein the senator would be responsible for seeing to it that the projects were properly implemented,” the source said.

“The senators may be right based on COA rules that they have no obligation on the implementation of projects, but they negated this when they signed the MOAs taking on this responsibility,” said the source.