Money trail, intent hinder PHL plunder convictions

By Mark Joseph M. Sanchez

RECENT HIGH-PROFILE plunder cases before the Sandiganbayan have underscored the difficulty of securing convictions under the country’s anti-corruption laws, with analysts saying prosecutors continue to struggle to trace illicit funds and prove criminal intent beyond reasonable doubt.

They said the challenges extend beyond the Plunder law, pointing instead to weaknesses in evidence gathering and investigations that make it difficult to establish how public funds move from government coffers to the principal accused.

“It’s not just plunder, but corruption indictments in general,” Michael Henry Ll. Yusingco, a senior research fellow at the Ateneo Policy Center, told BusinessWorld via Facebook Messenger.

“It’s difficult to secure official documents covering the particular transactions, secure witnesses to testify to the corrupt acts and establish links and connections that will prove the corrupt scheme,” he added.

Mr. Yusingco said the political culture itself makes gathering evidence difficult. “The powerful politician will always find a way to influence or intimidate his or her way out of the indictment.”

Ephraim B. Cortez, president of the National Union of Peoples’ Lawyers, said tracing the flow of illicit funds remains the prosecution’s biggest challenge.

“The most challenging part is establishing the trail of the money from the source to the recipient,” he told BusinessWorld via Viber. “This is especially so if there are intermediaries.”

Mr. Cortez said prosecutors might be able to prove that intermediaries received public funds but often fail to establish that the money eventually reached the principal accused.

He cited past plunder cases in which courts acquitted senior officials while convicting some of their staff after finding that signatures authorizing the release of funds had been forged. In one case, he noted, the principal accused was acquitted but was still ordered to return the disputed funds.

He also cited another recent acquittal in which the Sandiganbayan ruled that the accused had merely been negligent in supervising the use of priority development assistance fund allocations rather than acting with criminal intent.

Mr. Cortez said establishing criminal intent is among the most difficult elements of a plunder prosecution.

“The most difficult part is proving the nexus between the money and the accused and the criminal intent,” he said. “Even if they are caught red-handed, they can be acquitted for lack of criminal intent.”

He added that previous prosecutions illustrate how difficult convictions remain, noting that several senators charged with plunder in separate cases were eventually acquitted.

Mr. Yusingco likewise said many corruption cases fail because prosecutors could not present sufficient evidence to satisfy the constitutional requirement of proof beyond reasonable doubt.

“A major part of building a winning case is gathering evidence,” he said. “Most of the dismissals are due to failure to present evidence to prove guilt beyond reasonable doubt. This can only point to the prosecution’s failure to present the correct evidence.”

He said strengthening the investigative capacity of the Office of the Ombudsman would likely be more effective than amending the Plunder law itself.

Both analysts said reforms should focus on improving investigations and evidence collection rather than rewriting existing anti-corruption statutes.

Mr. Cortez proposed auditing Sandiganbayan cases to compare conviction rates involving rank-and-file government employees with those involving senior public officials prosecuted under the Anti-Graft and Corrupt Practices Act and Plunder law.

He cited an anti-graft case in which a public official received a 10-year prison sentence for gross inexcusable negligence involving P43 million, while politicians charged with plunder involving much larger sums were acquitted after courts found insufficient proof of criminal intent or concluded that they had merely been negligent.

Mr. Yusingco urged Congress to enact a Freedom of Information law to improve access to government records and require all public officials to submit their statements of assets, liabilities and net worth directly to the Office of the Ombudsman.

“This will be a potent investigation tool that can boost the Ombudsman’s prosecutorial capacity,” he said.