Wednesday, February 11, 2015
DISSENTING OPINION SC Justices agree Jinggoy was denied due process
MANILA-The Ombudsman clearly violated Senator Jinggoy Estrada’s constitutional right to due process when it rendered a decision against the lawmaker without fully disclosing to him the accusations made against him and without giving him sufficient opportunity to refute the said allegations.
In two separate dissenting opinions issued by two associate justices of the Supreme Court, the Ombudsman was found to have committed grave abuse of discretion when it unfairly concluded its preliminary investigation and issued a resolution finding probable cause to indict Sen. Estrada before the Sandiganbayan without making available to him the allegations and documents which were used as basis for the decision.
The decision and the dissenting opinions were promulgated last January 21, but the full text was made public only last week.
The two justices also recommended to suspend the ongoing proceedings before the lower court, and to send back the case to the Ombudsman for another round of investigation.
Associate Justice Arturo Brion, one of the justices who moved to partially grant Sen. Estrada’s petition, even called the finding of probable cause by the Ombudsman as “largely one-sided,” and the preliminary investigation “gravely irregular.”
On May 7, 2014, Sen. Estrada bewailed the lack of fairness and impartiality in the investigation and filed before the Supreme Court a petition to question and nullify the said order of the Ombudsman after the same denied his request to be furnished copies of the counter-affidavits of Ruby Tuason, Dennis Cunanan, and other witnesses and respondents on the PDAF (Priority Development Assistance Fund) case.
The Ombudsman denied Estrada’s request for a copy of the affidavits on March 27. On the very next day, March 28, it already issued a resolution which recommends filing of charges before the Sandiganbayan. Both issuances were made known to Sen. Estrada on April 1.
“The violation... occurred when the Ombudsman refused to grant him access to his requested documents and proceeded to find probable cause based largely on those documents. Worse, Estrada did not even know of the denial of his request at the time of probable cause finding was made and thus could not have contested it through a timely a motion for reconsideration,” Brion said.
Associate Justice Presbitero Velasco, Jr. on the other hand believed that Sen. Estrada was not accorded the full measure of the due process protection.
Citing own rules governing the Office of the Ombudsman, Velasco maintained that a “respondent in a preliminary investigation shall have access to the evidence on record without discriminating as to the origin thereof and regardless of whether such evidence came from the complainant or another respondent.”
Moreover, Velasco asserted that when there are counter-affidavits of other respondents submitted before it which may likely incriminate another respondent, the Ombudsman need not wait for a request or motion be filed before the accused is given copies of the incriminating affidavits.
Velasco further said that such violations to due process should not be allowed to happen ever again. “It is true that in the past, the Court has allowed the belated disclosure by the Ombudsman to a respondent of affidavits containing incriminating allegations against him. This may possibly be the reason why the Ombudsman deviated from the spirit of due process, which at its minimum, is to allow a respondent prior notice and afford him sufficient opportunity to be heard before a decision is rendered against him. This cannot be further tolerated.”
Lastly, Brion stated while citing jurisprudence, “The Ombudsman’s refusal – an act that effectively denied Estrada the full measure of his right to due process in a manner completely outside the contemplation of the law – tainted the preliminary investigation proceedings with grave abuse of discretion that effectively nullifies them. This conclusion is unavoidable as in the hierarchy of rights, ‘the Bill of Rights and its supporting statutes take precedence over the right of the State to prosecute; when weighed against each other, the scales of justice tilt towards the former.’”
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