16-18 JANUARY 2002
THE ESTRADA PLUNDER CASE, YEAR 1
Trial of the Century May Take Ages to Finish

by MALOU C. MANGAHAS

Estrada on trial


This three-part story examines the state of the Estrada trial and looks at the problems that hobble the proceedings. It says that while the Philippines has succeeded in trying and jailing a former head of state—something no other Southeast Asian country has done—the trial is proceeding at a snail's pace, its problems reflecting the problems of the Philippine justice system.

This series looks at the compromises that have been struck with various Estrada cronies, the ineptness of the Office of the Ombudsman, the divisions in the Sandiganbayan, and the bickering between the Ombudsman and the private prosecutors who are helping litigate the case for the government. Given the slow pace of the proceedings, thanks in part to the endless motions from the defense, the trial is likely to drag on for years.

This series, which is timed for release one year after the end of the impeachment proceedings against Estrada, marks the first time that a detailed journalistic report on how the trial is progressing has been made, and it draws insights from the various parties involved in the case.


A YEAR ago today, an unopened envelope prompted prosecution lawyers in the impeachment case against then President Joseph Estrada to walk out of the halls of the Senate and triggered massive protest rallies. In a span of four days, the former movie actor fell out of power while his erstwhile Vice President, Gloria Macapagal Arroyo became the country’s new Chief Executive.

By April 4, 2001, plunder, perjury and corruption charges were filed before the Sandiganbayan against Estrada, the first ex-leader in Southeast Asia to be charged with graft and detained. Of course there were some pessimists who thought trying Estrada in court would lead nowhere, but the prosecution panel assured the public that it had strong cases and that justice would prevail.

Indeed, there was hope that the so-called ‘Trial of the Century’ would finally put an end to the cycle of impunity of those in public office. Yet today, with everything seemingly going wrong, the trial is instead turning out to be a showcase of the problems the Philippine court system has become notorious for, including sheer incompetence, politicking and the influence of personal relationships.

This, while billions of pesos worth of Estrada’s “questionable” assets remain untouched by the government and most of his cronies who had benefited from his largesse have yet to be haled to court.

Even the private prosecutors are throwing up their arms in disgust and accusing the public prosecutors of “manipulation, withholding of information (and) deceit.” The justices at the anti-graft court, meanwhile, have been busy bickering among themselves, hobbling all the more the progress of a trial already hampered by a defense team driven by a desire to delay it at every turn possible.

These only mean the trial has almost always been at a standstill. In fact, nine months after the plunder case was filed in April 2001, only 19 trial days have been held, lasting no more than a total of 60 hours. And at its current pace of one witness testifying for two weeks (for direct, cross, re-direct and re-cross examination), the mere presentation of 48 prosecution and 78 defense witnesses may stretch through 252 weeks or five years, or well beyond 2007. That is, assuming that the cases prosper and that neither side springs a surprise.

Just last week, as prosecution witness Willy Ng Ocier testified for at most two hours, Estrada’s lawyers raised objections at least 20 times, on most occasions even before the witness could utter a word in response to prosecution queries.

Estrada’s seven-person defense team has also filed about four dozen substantive motions—that is, excluding the 68 others they had filed before his arraignment on July 10, 2001. In comparison, the prosecution has submitted about a dozen substantive motions.

Nearly all these motions are still awaiting decision by the Sandiganbayan’s Third Division, which now has only one permanent member and two temporary members. Yet legal experts say that if the court had been a little bit more attuned to the rules of procedure, it could have well limited the “exuberance” of the contending parties.

Among the motions that have yet to be decided upon are those filed by the prosecution for Estrada and his co-accused, son and former San Juan Mayor Jose ‘Jinggoy’ Estrada, to be returned to the detention center at Sta. Rosa, Laguna, withdrawal of a graft case filed with the Fifth Division, and the admission of a second perjury complaint.

Defense motions still unresolved by the court include pleadings for the Estradas to be placed under house arrest, medical treatment overseas for the ousted president, subpoena for additional bank records discovered by the prosecution, and the indictment of former Ilocos Sur governor Luis ‘Chavit’ Singson.

The supposed draft order of the Third Division for the Estradas to be returned to their Sta. Rosa detention house had been discovered missing in November, prompting division chief Justice Anacleto Badoy to padlock his office and order an investigation of his own staff personnel.

The defense and the prosecution have also yet to agree to qualify scores of documentary evidence cited in the admitted complaints. The defense, moreover, has to this day refused to sign and accede to the pre-trial order issued by the third division, which defines the parameters for the plunder case trial. But then this should be no problem for the court, which retains plenary powers over its own orders even if one or both contending parties object to these.

To be sure, such court tactics and delays are not new to the 14 volunteer private lawyers who helped build the cases against Estrada during the impeachment trial, and who up to now are rendering unpaid and anonymous legal service for the prosecution. What they have become exasperated over, though, are what they describe as bungling by the Office of the Ombudsman. They have also been incensed by the apparent reneging by the Ombudsman on what they had assumed to be “firm agreements.”

The private prosecutors have been performing nearly all the substantive tasks of gathering evidence, as well as preparing the witnesses and pleadings in the Estrada cases. But the law prohibits them from appearing for the prosecution at the Sandiganbayan, as only government lawyers may do so.

The private lawyers, however, say they were fine with the arrangement, and were content with what they had thought was an agreement with the Ombudsman and the Department of Justice on their non-negotiable “key objective.” In a memorandum to the Ombudsman, this was spelled out as “to ensure the prosecution and conviction of (a) ERAP and (b) his cronies, relatives and dummies according to the evidence compiled.”

Too, they thought they had a firm consensus with the Ombudsman and the DOJ on what should be the prosecution’s strategy: file one omnibus plunder case, instead of several cases that could diffuse their efforts and allow the accused grounds to cry double jeopardy.

As an added assurance that everything would go smoothly, Ombudsman Aniano Desierto’s University of the Philippines law school classmates arranged a meeting with him early on, during which they reminded him that the Estrada cases must not be marred by even suspicions of case-fixing.

Unfortunately, Desierto, who had an impeachment complaint filed against him in 1996 for alleged corruption, among other things, found himself facing a similar complaint late last year. But at least it did not seem to have anything to do with the Estrada cases.

By then, however, Desierto and his team at the Office of the Ombudsman had already managed to irritate, if not enrage, the volunteer lawyers, who had limited access to the major legal and political decisions concerning the cases.

On April 4, 2001, Desierto filed 11 separate plunder and graft complaints against Estrada, his son Jinggoy, and only three associates—lawyer Eduardo Serapio, and friends Charlie ‘Atong’ Ang and Yolanda Ricaforte—in flagrant disregard of the agreements with the private prosecutors.

Another Estrada crony, Jaime Dichaves, was impleaded as a co-accused (as one of the “John Does”) in the same plunder case just last month, and only after the volunteer lawyers threatened to pull out of the cases en masse in September.

The trigger issue was a monumental error that Overall Deputy Ombudsman Margarito Gervacio would have committed had the private prosecutors not stopped him.

Gervacio, designated earlier as prosecution team head, had prepared to file a separate plunder case against Dichaves that assigned to the crony ownership of the “Jose Velarde” account with Equitable PCIBank. That “Joseph Estrada is Jose Velarde” is widely known to be a fundamental premise of the prosecution’s case against the former president.

Filing a separate plunder case against Dichaves would have absolved Estrada of culpability, as it would pass on to the crony the same acts ascribed to the ousted president.

The September storm that rocked the prosecution, even before the trial commenced on October 1, had the private lawyers drafting a 10-page letter to Arroyo detailing instances of alleged bungling and incompetence by Desierto and the Ombudsman’s lawyers.

“The case against Estrada is lost,” the letter began. “We write you as a last resort in the face of what we have assiduously observed and carefully studied as a pattern of moves, decisions, and steps on the part of the Ombudsman that objectively favor the accused and considerably weaken the case of the prosecution.”

The Ombudsman, it stated, “practically bulldozed the case of the prosecution when, contrary to our emphatic advice and in violation of his word of honor and agreement with us, filed multiple suits...for the same set of acts instead of just one plunder case.”

In fact, up to the moment Desierto held a press conference on April 4, 2001 to announce the filing of the complaints against Estrada, the private lawyers said not one of them had been allowed to see or read the information. Even worse, they were summoned to the Ombudsman’s office that day for a supposed meeting of the prosecution team when what actually transpired was a press conference. Other legal experts have since noted that meeting with the media as odd, if not downright wrong for the government lawyers to do, since the rules say that until a case goes to the Sandiganbayan, proceedings before the Ombudsman are confidential.

In any case, the private prosecutors’ letter narrated various instances of “manipulation, withholding of information, deceit” by Desierto and his team. It also told of attempts by the Ombudsman to “trivialize” their efforts. Read the letter in part: “The Ombudsman and his deputies make the volunteer lawyers sit in long meetings two to three times and week where he appears two hours late and exhausts the remaining time denouncing Estrada’s lawyers but never resolving the most contentious issues raised by the volunteer lawyers.”

The crisis was thwarted only after Desierto yielded major concessions, including withdrawing eight of the more troublesome complaints from the Sandiganbayan and purging Gervacio from the prosecution team. In his place, two special public prosecutors were also named, on suggestion of the private prosecutors: trial court Judge Dennis Villa-Ignacio and Health Undersecretary Alexander Padilla.

Parallel to the discord that marred relations in the prosecution team, infighting among the Sandiganbayan justices broke out in the open by November. In a press conference, Justice Badoy disclosed in a press conference the alleged efforts by Sandiganbayan Presiding Justice Garchitorena to nudge him out of the plunder case trial. But Garchitorena retorted that Badoy’s Third Division colleagues—Justices Teresita de Castro and Ricardo Ilarde—were in fact the ones who had raised concerns about the work ethic and failing health of Badoy.

It took the Supreme Court weeks to resolve the impasse, and in separate decisions. In one, it compelled Garchitorena to go on an indefinite leave of absence for a somewhat unrelated reason—his failure to promulgate rulings on 300 cases submitted for decision in his division. In another, it asked Badoy to take an indefinite leave of absence on account of his ill health and the conduct of press interviews on his rift with Garchitorena.

But stenographic notes of the trial sessions conducted by Badoy as third division chair reveal as well evidence of the hostility between him and De Castro. On November 15, the trial turned testy for the two justices, more than for the lawyers from prosecution and defense.

De Castro, apparently opposed to a ruling Badoy had just made, motioned to speak out her mind. At this, Badoy interjected with, “You want to say something? Ask me first. If all of us makes noises at the same time, walang mangyayari, sorry.”

De Castro replied, “I think you should consult first before making a ruling.” This led Badoy to remark: “Well, you can do it nicely but I’m not obliged to consult. In the court, the chairman rules...the rule says the presiding officer rules.”

De Castro tried to recover ground by stating her opinion for the record. But Badoy continued with, “You will admit that yesterday, several times, you called my attention...I vowed (sic) down to you but you, you do not just shout there and make noises while I am presiding, behind my back. You can say it nicely as you did yesterday.”

In other instances, the trial proceedings reveal a more embarrassing side of Badoy—his failing memory. In a span of a few seconds at the October 29 trial session, the justice even said, “Before I forget, may I be allowed to say something first in connection with...I’m sorry I easily forget you know. You see I forgot again what I was about to say.”

Then again, the once low-profile Badoy may have just been overwhelmed by the glare of public attention accorded to his division, if not by the awesome responsibility placed on his shoulders. But legal observers are hard-pressed in trying to explain why, during the discussion of Estrada’s motion to be placed under house arrest, Badoy had to premise his adverse opinion on his theory that such cannot be allowed because “the accused might dig a tunnel (at his Polk Street residence) to be able to escape.” After all, they say, the rules are adequate enough for the dismissal of the motion.

Whether the third division or a new special division of the Sandiganbayan will continue to try the Estradas for plunder is a matter that hangs for now. Apart from Justice De Castro, now acting division chair, two vacancies exist in the court on account of Badoy’s indefinite leave of absence and the retirement of Justice Ilarde last month.

Badoy himself is due to retire this year, together with Justice Narciso Nario, one of the two temporary appointees to the Third Division. The Supreme Court is reportedly inclined to create a special division that will be assigned to try all three pending cases (plunder, perjury, illegal use of alias) against Estrada, and name De Castro as its chair. Court insiders say the additional members will be chosen from among the other Sandiganbayan justices who meet two qualifications: not appointees of the ousted president and not retireable in the next two years.

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