Monday, June 30, 2008 Ombud ordered to investigate Estrada's co-accused
THE Supreme Court (SC) has ordered the Office of the Ombudsman to conduct a preliminary investigation (PI) on a Cebu-based businessman to determine if he was really the one referred to as co-accused in the P4-billion plunder case filed against former President Joseph Estrada.
The SC en banc unanimously granted the petition filed by Victor Jose Tan Uy to annul the ombudsman's interrelated orders that included him as respondent in the case and found probable cause against him for allegedly "diverting, receiving, misappropriating, converting or misusing public funds in the amount of P130 million, representing a portion of the P200-million tobacco excise tax share allocated for Ilocos Sur Province."
All magistrates concurred with the ruling, except for Associate Justice Antonio Carpio, who was a co-complainant in one of the plunder cases against Estrada.
The deposed President was later on convicted last year by the Sandiganbayan Special Division but was pardoned by President Gloria Macapagal-Arroyo. Two other Estrada co-accused, Senator Jose "Jinggoy" Estrada and lawyer Edward Serapio, were acquitted by the ant-graft court.
Eleuterio Tan alias Eleuterio Ramos Tan or Mr. Uy was accused by the ombudsman of conniving with Estrada and co-accused Charlie "Atong" Ang, Alma Alfaro and Jane Doe alias Delia Rajas in the tobacco excise tax component of the plunder case.
In a decision penned by Associate Justice Arturo Brion, the high court said the ombudsman committed grave abuse of discretion when it "compartmentalized" Tan Uy's right to due process by not subjecting him to a PI in the Sandiganbayan cases OMB-0-00-1720 and OMB-0-00-1756, both pertaining to the plunder case.
The SC said the ombudsman has tainted its findings of probable cause in failing to subject petitioner to a PI to determine the real identity of Eleuterio Tan, co-accused of Estrada in the plunder case.
The high court noted that in these cases, the ombudsman identified accused Eleuterio Tan as a real name and not an alias of petitioner Tan Uy.
"The petitioner was never identified by assumed names or aliases in the supporting affidavits, hence a new preliminary investigation to be conducted to identify him as the person who, using the aliases Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy and withdrew from the LandBank (Land Bank of the Philippines) account in the course of a series of acts collectively constituting the crime of plunder," the court ruled.
Importance of a PI
The SC emphasized the importance of conducting a PI before an accused is placed on trial, as it will protect the accused from malicious and oppressive prosecution.
It said the critical evidence linking Tan Uy to the plunder case was his identification through the identification documents, but these identification documents were not given to petitioner in the subsequent Sandiganbayan-ordered PI to inform him of his alleged links to the plunder charges under the complaint-affidavits.
It further said that another hearing to clarify the issue is unnecessary if the evidence on record already shows the existence of probable cause.
"Reasonable opportunity to contest evidence as critical as the identification documents should have been given the petitioner at the Sandiganbayan-ordered preliminary investigation as part of the facts he must controvert, otherwise there is nothing to controvert as the burden of evidence lies in the one who asserts that a probable cause exists," the court said.
History
Court records showed that in April 2001, the ombudsman filed with the Sandiganbayan information charging Estrada, his son Jinggoy, Ang, Serapio, Yolanda Ricafort, Alfaro, Eleuterio Tan alias Eleuterio Ramos Tan or Mr. Uy, Jane Doe alias Delia Rajas, John Does and Jane Does with the crime of plunder.
The ombudsman then moved to amend the information twice - first to change in the appellation of the accused Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy to John Doe alias Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and then to include businessman Jaime Dichaves as accused.
On January 8, 2002, the ombudsman then filed with the Sandiganbayan, an omnibus motion seeking the issuance of an arrest warrant against petitioner, whom it alleged to be using the aliases Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy.
The ombudsman added that the accused Eleuterio Tan had been identified to be also using the name Victor Jose Tan with address at 2041 M.J. Cuenco Avenue, Cebu City. It alleged that petitioner was identified through photographs as early as the Senate impeachment trials that John Doe alias Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy and Victor Jose Tan Uy are one and the same person.
To support this motion, the ombudsman attached copies of the photographs identified at the Senate impeachment trial and the June 26, 2001 sworn statement of LandBank teller Ma. Caridad Manahan-Rodenas before the ombudsman's Fact Finding and Intelligence Bureau.
Rodenas identified the picture bearing the name Victor Jose Tan Uy as the one who introduced himself to her as Eleuterio Tan and who opened the bank account where at least P130 million in diverted tobacco excise taxes supposedly allocated for Ilocos Sur was deposited.
After learning that the ombudsman had sought the issuance of a warrant for his arrest, Tan Uy then filed a petition for the conduct of a PI with the ombudsman.
In his petition, Tan Uy argued that he was not subjected to a PI to determine the existence of probable cause against him for plunder, that he was not included as a respondent in the case, that his name and his address in Cebu City was not mentioned at any stage of the PI, and that the PI in the case that led to the filing of the plunder case was conducted without notice to him and without his participation.
Tan Uy also alleged that he had filed a complaint with the Cebu City Regional Trial Court against certain Eleuterio Tan for maligning him by using his picture, address and other personal circumstances without his consent, which acts led to his alleged involvement in the tobacco excise tax scandal.
On May 10, 2002, the ombudsman denied Tan Uy's petition for the conduct of PI saying the requested PI had long been terminated and the case has been filed with the Sandiganbayan. He then filed a motion with the Sandiganbayan.
On June 19, 2002, the Sandiganbayan granted Tan Uy's petition and ordered the ombudsman to conduct a PI. The Sandiganbayan also held in abeyance action on the ombudsman's motion to amend the information, inserting Tan Uy's name and to issue a warrant for his arrest, until the conclusion of the PI.
In response, the ombudsman ordered Tan Uy to file his counter-affidavit and ordered him and Rodenas to appear in a clarificatory hearing.
Tan Uy then filed a motion to resolve the case saying there is no need for the hearing as there is nothing that would require clarification.
The ombudsman then filed the case with the Sandiganbayan saying that Tan Uy did not present any evidence to show that he is not Eleuterio Tan and that Rodenas' identification of Tan Uy as Eleuterio Tan, has already formed part of the ombudsman's PI. (ECV/Sunnex)
