PDAF Scam: Hearsay Evidence and Probable Cause in Plunder Cases

The Supreme Court's December 2016 decision in Cambe v. Office of the Ombudsman (G.R. Nos. 212014-15, et al.) resolved a critical question in Philippine criminal procedure: can hearsay evidence support a finding of probable cause in plunder cases? The Court answered yes, provided there is substantial basis for crediting the hearsay. This ruling, arising from the Priority Development Assistance Fund (PDAF) scam cases against Senator Ramon "Bong" Revilla, Jr. and his alleged co-conspirators, clarifies the standards that govern preliminary investigations and judicial review of the Ombudsman's findings.

The PDAF Scam Allegations

The case involved consolidated petitions challenging the Ombudsman's March 28, 2014 Joint Resolution and June 4, 2014 Joint Order, which found probable cause to indict Senator Revilla, his chief of staff Richard Cambe, Janet Lim Napoles, and several others for plunder under Republic Act No. 7080 and violations of Section 3(e) of Republic Act No. 3019.

The prosecution alleged a complex scheme where Napoles acquired legislators' PDAF allocations in exchange for commissions or kickbacks. For Senator Revilla, the alleged scheme involved endorsing fraudulent non-governmental organizations controlled by Napoles to implement ghost projects, with the Senator receiving at least P224,512,500.00 in kickbacks from the P517,000,000.00 PDAF allocation for 2006 to 2010.

The Issue Before the Court

The core issue was whether the Ombudsman gravely abused its discretion in finding probable cause against the petitioners. The petitioners raised several defenses, including forgery of signatures, lack of personal knowledge by whistleblowers, and the pendency of Commission on Audit disallowance proceedings.

The Court's Ruling on Administrative and Criminal Cases

The Court first addressed Cambe's argument that criminal charges were premature because the COA had not yet issued an order of execution on the notices of disallowance against Senator Revilla's office. The Court rejected this, citing Reyna v. COA, which held that the criminal case filed before the Office of the Ombudsman is distinct and separate from the proceedings on the disallowance before the COA.

The Court emphasized that civil, criminal, and administrative remedies against public officers may be invoked separately, alternately, simultaneously, or successively. The COA's 2009 Revised Rules of Procedure, particularly Section 6 of Rule XIII, contains no precondition that criminal charges must await the finality of audit disallowances.

Hearsay Evidence in Preliminary Investigations

The Court's most significant pronouncement concerned the use of hearsay evidence. The petitioners argued that the whistleblowers' testimonies should be excluded under the res inter alios acta rule. The Court disagreed, clarifying that probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay.

The Court explained that a preliminary investigation is merely an inquisitorial mode of discovering whether or not there is reasonable basis to believe that a crime has been committed. Since it is not the occasion for a full display of the prosecution's evidence, the technical rules of evidence should not be applied in the course of its proceedings. The validity of defenses and the admissibility of testimonies are matters for trial.

The Forgery Defense

Senator Revilla claimed his signatures on PDAF documents were forged, relying on handwriting experts who examined photocopies. The Court noted that the Ombudsman's own prima facie comparison of the signatures with those on the counter-affidavits found they were written by one and the same hands.

More importantly, the Court cited the July 20, 2011 letter Senator Revilla sent to the COA confirming that the signatures and/or initials on the PDAF documents were his or those of his authorized representative. The Court also found that the forgery defense was weakened by whistleblower Benhur Luy's testimony that forgeries were made with the approval of Napoles based on prior agreements with legislators, giving them room for plausible deniability.

Standard of Review

The Court reiterated its policy of non-interference with the Ombudsman's determination of probable cause absent grave abuse of discretion. Grave abuse requires a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. Probable cause requires only facts sufficient to engender a well-founded belief that a crime has been committed, which is based on more than bare suspicion but less than evidence that would justify a conviction.

Practical Takeaways

• Hearsay can establish probable cause. During preliminary investigations, prosecutors may rely on hearsay evidence if there is substantial basis for crediting it. Technical evidentiary rules apply at trial, not at the probable cause stage.

• Administrative and criminal cases proceed independently. A pending COA disallowance or administrative case does not bar or suspend criminal prosecution for the same acts.

• Forgery defenses are for trial. Claims of forged signatures, including expert testimony, are evidentiary matters that should be ventilated in a full-blown trial, not during preliminary investigation.

• The Ombudsman's findings are highly respected. Courts will not disturb the Ombudsman's probable cause findings unless there is grave abuse of discretion amounting to lack of jurisdiction.

• Documentary evidence and corroborating testimony matter. Written endorsements, MOAs, and other documents issued under a public officer's authority can support probable cause, especially when corroborated by witnesses with personal knowledge of the scheme.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.