High-profile plunder cases before the Sandiganbayan have underscored the difficulty of securing convictions under the country's anti-corruption laws. Analysts say prosecutors continue to struggle to trace illicit funds and prove criminal intent beyond reasonable doubt.
The challenges extend beyond the Plunder law, with weaknesses in evidence gathering and investigations making it difficult to establish how public funds move from government coffers to the principal accused. This is not just a problem with the Plunder law, but with corruption indictments in general.
Senior research fellow Michael Henry Ll. Yusingco notes that 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," he 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," said Ephraim B. Cortez, president of the National Union of Peoples' Lawyers.
Prosecutors might be able to prove that intermediaries received public funds, but often fail to establish that the money eventually reached the principal accused. Cortez 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.
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," said Cortez. "Even if they are caught red-handed, they can be acquitted for lack of criminal intent."
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," said Yusingco. "Most of the dismissals are due to failure to present evidence to prove guilt beyond reasonable doubt."
Strengthening the investigative capacity of the Office of the Ombudsman would likely be more effective than amending the Plunder law itself. Both analysts agree that reforms should focus on improving investigations and evidence collection rather than rewriting existing anti-corruption statutes.
One proposed reform is 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.
A Freedom of Information law could also 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 would be a potent investigation tool that can boost the Ombudsman's prosecutorial capacity, said Yusingco.
