In his 38-page concurring opinion, Associate Justice Marvic Leonen said he received information that Ong tried negotiating with SC magistrates on how to deal with the complaint filed against him.
The SC last week voted 8-5-2 to dismiss Ong from service for gross misconduct, dishonesty and impropriety.
Leonen, who did not disclose where he got his information, said that over the course of the SC’s motu proprio probe on Ong, colleagues have pointed to the need for “compassion” over the case.
“We are told that he has served long years as a judge and as a justice,” Leonen wrote.
“We were even told that he attempted to informally circulate a letter through other colleagues in this court that he was willing to take an optional retirement should he be meted with any kind of suspension,” he added.
While Ong was dismissed for gross misconduct, dishonesty and impropriety for fraternizing with Napoles, Leonen said Ong’s “audacity to try to influence” SC justices could have been another basis for his dismissal.
“It shows that he has at least made attempts to communicate ex parte with members of this court outside the formal processes allowed by our rules,” Leonen said.
“Ex parte communication sub rosa by one being investigated with any member of this court while we sit in deliberation of his case is wrong. Influence peddling is wrong,” said Leonen.
Black Nazarene, AFPSLAI investment
In his opinion, Leonen concurred with the majority ruling that Ong committed impropriety when he continued fraternizing and even accepted favors from Napoles even after her acquittal in the Kevlar case.
In an investigation led by retired SC Associate Justice Angelina Sandoval-Gutierrez, Ong admitted receiving a “religious favor” from Napoles when she arranged a meeting between Ong and the parish priest of Quiapo, Monsignor Josefino Ramirez, so the Sandiganbayan justice could wear the Black Nazarene’s robe.
Ong, a devotee of the Black Nazarene, allegedly said he hoped wearing the robe could help cure his prostate cancer.
“By accepting the favor, Justice Ong created an impression of partiality, contrary to Canon 4, Section 15 of the Code of Judicial Conduct. If he really wanted to wear the Black Nazarene robe after Napoles had told him that it was possible, he would have pursued it himself, and not accept the offer of… a person he acquitted,” Leonen said.
During one of his visits to Napoles’ office, Ong reportedly said he wanted to invest P25.5 million in the Armed Forces and Police Savings and Loans Association, Inc. (AFPSLAI) through Napoles’ bank account. In exchange, Napoles issued 11 checks to Ong worth a total of 3 million representing advanced interest. Leonen described Ong’s action as an “unacceptable impropriety.”
“It is possible that Napoles and AFPSLAI have a special illicit arrangement,” said Leonen.
Napoles’ husband Jaime Napoles was a retired Marine major who left the service in 2004.
Leonen said Ong could have instead invested his money in the stock market, bonds market, real estate, hedge funds amd mutual funds under reasonable terms and conditions.
He also said justices can only accept gift if they are: unsolicited, a token value, or customary to an occasion.
“There was no occasion for Justice Ong to receive a gift from Napoles. His having been one of the justices that acquitted her from very serious charges in the Sandiganbayan raises a reasonable belief that such accommodation was the result of Napoles’ influence during his performance of his judicial duties,” he said.
Leonen said the amount of the checks, totalling more than P3 million, given to Ong was not token amount.
Judicial error on Kevlar
As for the Kevlar case, Leonen pointed out “irregularities” in the way the Sandiganbayan acquitted Napoles, saying the decision of the Fourth Division, of which Ong was a member, was “unorthodox.”
“The irregularities in the Sandiganbayan decision coupled with the cloud of suspicion cast by Justice Ong’s acquaintance with Napoles erode the integrity and credibility of his court,” Leonen said.
Leonen addedthe Sandiganbayan’s “judicial error” in the Kevlar case became “tainted with bad faith” when Ong continuously associated with Napoles. He said Ong deserved administrative sanction to the highest degree.
Leonen, however, clarified that his observations were merely similar to a judicial audit and not in exercise of the high court’s appelate jurisdiction, adding that they will not affect the parties’ rights to a final judgmenet but should assist the SC assess whether there was abuse of a judge or justice’s discretion.
Simple misconduct?
The justices who dissented, meanwhile, said Ong should be held liable not for gross but simple misconduct.
“Contrary to the ponencia’s findings, there is no reliable evidence in this case to conclude that Justice Ong’s conduct was corrupt or inspired by the intention to violate the law,” said Justice Bienvenido Reyes in his concurring and dissenting opinion.
Reyes said Ong should have only been imposed the maximum penalty of three months suspension without salary or benefit, given that it was not his first time to be sanctioned by the high court.
Reyes also branded the testimonies of pork barrel scam whistleblowers Benhur Luy and Marina Sula as hearsay, saying they failed to prove Ong was indeed a “contact” of Napoles or that he accepted bribes from the businesswoman.
“In this case, other than the hearsay testimonies of Luy and Sula, no other evidence was presented to establish that it was indeed Justice Ong who is the contact of Napoles in the Sandiganbayan who helped her secure an acquittal in the Kevlar case. Thus, the testimonies of Luy and Sula with regard to the foregoing should not be given any weight in the determination of Justice Ong’s administive liability,” Reyes said.
He, however, added: “Although the circumstances surrounding the charge of bribery against Justice Ong were not estblished, it does not mean, however, that he cannot be held administratively liable.”
For his partt, Associate Justice Jose Perez said in a separate concurring and dissenting opinion that no “financial deal” was established between Ong and Napoles since “no one was able to see and observe Justice Ong receiving the 11 checks… And that no such checks were ever submitted as evidence.”
Leonen, however, said Luy and Sula’s statements should be considered “independent relevant statements” that are exempt from the hearsay rule.
Perez said that even if it were true Ong received checks from Napoles, it cannot be considered an “accommodation.”
Perez said the fact Ong allowed his money to be used as consideration for the checks he allegedly received showed the “financial deal can stand as a transaction away from bribery.”
“While not impossible, the likelihood that the financial deal was a bribe becomes remote given the considerable amount of time (of two years) that passed between Napoles’ acquittal and the purported pay-off,” Perez said.
Dishonesty
Reyes also said Ong was not being dishonest when he failed to mention in his letter to Chief Justice Maria Lourdes Sereno that he had visited Napoles’ office twice after her acquittal in the Kevlar case.
“It may have been a lapse of judgment on his part but it certainly is not dishonesty. In any case, when allegations came out that he visited the office of Napoles in Discovery Suites Center on two occasions, Justice Ong readily admitted to the fact. Such admission, indubitably, is incongruent with the ide of being dishonest,” he said.
Perez echoed Reyes’ position and said the “basis of this finding (of dishonesty) was the result of taking statements of Justice Ong out of context.”
But Leonen disagreed, saying Ong’s decision not to disclose his visits to Napoles’ office “showed a disposition to decieve.”
Leonen noted several acts showing Ong’s “propensity to be dishonest,” when he was being interviewed by media and even while he was being in investigated by Gutierrez. —KBK, GMA News
