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OSG asks CA to overturn Napoles conviction in illegal detention case filed by Benhur Luy

Janet Lim Napoles and her second cousin, whistleblower Benhur Luy. The Office of the Solicitor General has told the Court of Appeals the evidence used to convict Napoles in the serious illegal detention case filed by Luy was weak, and her conviction should be overturned. INTERAKSYON.COM FILE
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MANILA - (UPDATE, 6:18PM) The Office of the Solicitor General has submitted to the Court of Appeals a manifestation in lieu of rejoinder to acquit pork barrel queen Janet Lim-Napoles in the serious illegal detention case for which a Makati court had convicted her. 

The move drew an angry reaction from Sen. Leila de Lima, under whose watch as Justice Secretary the prosecution and conviction of Napoles was undertaken. 

The case was filed against Napoles and her fugitive brother Reynaldo Lim by their second cousin and whistleblower in the pork barrel scam, Benhur Luy, who claimed the pair kept him against his will for months to prevent him from spilling the beans on how they carried out the scam, with him as key implementor until they had a falling out.

The OSG's move, according to legal experts interviewed by the Philippine Center for Investigative Journalism (PCIJ), would not be enough to result in Napoles' release from prison - the serious illegal detention conviction is separate from the plunder and graft trials for the pork barrel scam - but it could cast doubt on the credibility of Luy as a witness.

Luy was the key witness in the plunder cases against Napoles and former senators Juan Ponce-Enrile, Jinggoy Estrada and Bong Revilla. 

Napoles was earlier sentenced to reclusion perpetua or 40 years of imprisonment by the Makati Regional Trial Court for forcibly keeping Luy at a retreat house and later, in their condominium unit from December 2012 until March 2013.

Napoles is now detained at the Correctional Institution for Women in Mandaluyong City. 

In the manifestation submitted to the CA dated January 11, 2017 the names of Solicitor General Jose Calida, and Assistant Solicitors General Henry Angeles and Armand Morales. 

Calida did not sign the document, but Angeles is his chief-of-staff. 

The OSG said in its manifestation that it reviewed Napoles' reply brief dated Sept. 20, 2016, wherein appellant Napoles said the "element of deprivation of liberty is absent and wanting in this case".

Based on such review of the evidence presented by prosecution and defense, the OSG said, "the evidence presented does not support beyond reasonable doubt that the appellant commmitted crime of serious illegal detention."

The OSG also noted that the conduct and behavior of Luy during the time he was supposedly being detained against his will did not bear out his allegations of coercion and restriction.

"Indeed, the conduct and behavior of Benhur Luy during the period of his alleged detention belie the fact that he was detained or deprived of his liberty, contrary to the findings of the trial court in its April 14, 2015 decision," OSG said. 

The OSG manifestation was based, among others, on the testimony of one priest, Fr. Peter Edward Lavin and the NBI-special task force team leader who helped Luy, and the security guards at the condominium building where Napoles lived. 

Lavin testified before the Makati court on Oct. 30, 2013, that Luy never mentioned or indicated during the time he was in the retreat house where Janet and her brother brought him that he was being kept against his will.

Two guards at the Pacific Plaza Towers in Taguig, Fernando Masayon and Feliciano Alcantara, testified that when Luy was being rescued by the NBI, he blurted out to his brother that he was not kidnapped.

NBI agent Rodante Berou, one of those who rescued Luy, had also testified that he did not see Luy being "physically restrained."

Their testimonies corroborated the CCTV footage of the supposed 'rescue' of Luy. 

The OSF also stressed that in the time he was supposedly illegally detained, Luy was able to meet with his family .

"Moreover, during the period of his alleged detention, Benhur Luy was able to see his family thrice; December 24, 2012 at the Heritage Memorial Park; and January 9, 2013 and February 23,  2013 at the Pacific Plaza Tower in Taguig City, and in none of these instances did he intimate to anyone of them that he was being detained or kidnapped by the appellant."

The OSG also fell back on the resolution of the DOJ special panel of prosecutors on June 10, 2013 recommending the dismissal of the serious illegal detention complaint of Luy against Napoles. 

Impact on pork cases analyzed

The PCIJ did an analysis of the implications of the OSG's manifestation and interviewed several legal experts for the purpose.

The PCIJ quoted one of them as saying, “This is dangerous because of the indirect impact on (pending) pork cases, especially since Benhur talked because he was supposedly being detained illegally."

While the OSG manifestation would not be enough to set  Napoles free, the impact of the OSG's move is that it now casts doubt on Luy's credibility, said PCIJ's source.

"Still, the illegal detention happened after Benhur acquired info on the pork transactions, so he can insist on his credibility about these matters. The problem is, public perception could turn against him because of this manifestation,” the lawyer added.

PCIJ also said a lawyer who had been part of the COA special audit team on the PDAF cases had agreed with this view: “Benhur gave a lot of documents kasi. Certainly, the indirect impact of this is to question his credibility, and that of the other witnesses. That might be the point of this manifestation.”

That same lawyer nonetheless said that “A manifestation, from a lawyer’s point of view, does not always overturn or affect the court’s decision. This can be appealed to the (Supreme Court).”

PCIJ said a government prosecutor it interviewed had predicted that even with the manifestation, “(Napoles) stays in jail for the pork cases.”

The prosecutor added, “There was a time she wanted to tell all na. Maybe that is the modus vivendi, for her to tell all on politicians they (administration) don’t like.”

This admin a criminal coddler - De Lima

Sen. Leila de Lima, in whose watch as Justice secretary Napoles was prosecuted and convicted, reacted angrily to the OSG's move, saying it cemented its reputation as a coddler of criminals.

"Under these circumstances, it is indeed an honor to be imprisoned under this regime of criminal coddlers," a reference to her allegations that her successor at the DOJ had allowed the grant of special privileges to convicted criminals who were earlier brought to Congress to testify against her in an inquiry on the prison drug trade's thriving in the past administration.

De Lima is bracing for a reported move by Justice Secretary Vitaliano Aguirre to have her arrested anytime soon on charges of violation of the anti-illegal drugs law.

De Lima's statement:
"It looks like this administration is bent on taking the side of every high-profile crook and scoundrel the past administration was able to jail. I cannot imagine what justification the OSG has come up with this time in order to sabotage the criminal conviction the DOJ has successfully secured in the past administration. 

"The professional career lawyers of the OSG must be cringing at this latest stunt of their Solicitor General. 

"From the "tribune of the people" to the "tribune of convicted criminals", this is probably the lowest point ever that the OSG has reached in its years of existence.

"Release Napoles, the number one enabler of plunderers in government, and we might as well dissolve our justice system and declare this government a government of criminals, where the innocent are imprisoned and the criminals liberated. Maybe next they will be setting free the convicted drug lords who testified against me.

"Under these circumstances, it is indeed an honor to be imprisoned under this regime of criminal coddlers."