DETAINED businesswoman Janet Lim-Napoles has asked the Sandiganbayan Third Division for the dismissal of the graft and malversation charges filed against her in connection with the alleged P900-million Malampaya fund scam.
In a 21-page motion to quash submitted to the anti-graft court last Feb. 20, Napoles said the 97 counts each of graft and malversation of public funds filed against her should be dismissed because she was not a public official.
“This element can only be committed by a public officer charging administrative, judicial or official function. Not being public officers, herein accused could not possibly commit the acts that they are charged with,” Napoles, the alleged brains behind the multibillion-peso pork barrel scam, said in her motion.
“The charge of malversation is misplaced and absolutely baseless. As defined, the accused cannot be made liable for malversation. She is a private individual and the crime of malversation can only be committed by a public officer,” she added.
Also charged were Budget chief and incumbent Camarines Sur Rep. Rolando Andaya Jr. and former Agrarian Reform secretary and now Masui City, Lanao del Sur Mayor Nasser Pangandaman for violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act and malversation of public funds through falsification of public documents.
The respondents are accused of diverting P900 million from the Malampaya fund allocated by DBM to DAR between 2009 and 2010 and in the process using 12 Napoles-led non-government organizations as conduits to the fraud.
But Napoles said the Ombudsman “miserably failed to establish conspiracy” between her and her co-accused.
“Certainly, it would be perplexing for the accused to admit or face the charge, by not knowing how, when and where, during the span years, were the alleged ‘over criminal acts’ have been committed,” the motion read.
The prosecution stressed the allegations against Napoles and her kin were “clearly spelled out” in the case information, saying the charge sheets only needed to contain ultimate facts since other elements of the crime could be presented during the trial.
The prosecution said establishing conspiracy between the respondents in the charge sheets was also unnecessary since this will be presented as evidence.
“A conspiracy is proved by evidence of actual operation; of facts indicative of an agreement, a common purpose, a concerted action or concurrence of sentiments to commit the felony and actually pursue it. A statement of this evidence is not necessary in the information,” the consolidated opposition read.
It disagreed with Napoles on her argument that only public officials were allowed under the law to face graft and malversation.