MANILA — Jailed businesswoman Janet Lim Napoles has asked the Sandiganbayan to dismiss the graft and malversation cases filed against her on the so-called PHP900-million Malampaya fund scam since she is not a public official.
In a 21-page quashal motion dated Feb. 20, and filed before the Sandiganbayan 3rd Division, Napoles said she should not be facing 97 counts each of violation of the Anti-Graft and Corrupt Practices Act and malversation of public funds, which could only be committed by a public officer.
Napoles is also the alleged “brains” behind the PHP10-billion pork barrel scam.
She argued that the anti-graft law and malversation, as defined under the Revised Penal Code (RPC), only prosecute government officials who control public funds and have conspired with other public individuals to misappropriate them.
“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 said.
“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,” her motion added.
Napoles is a co-accused of former Department of Budget and Management secretary and incumbent Camarines Sur Rep. Rolando Andaya Jr., and former Department of Agrarian Reform secretary and now Masui City, Lanao del Sur Mayor Nasser Pangandaman.
The case arose when they allegedly misused PHP900-million worth of Malampaya funds from the relief operations, rehabilitation, and reconstruction of areas affected by Tropical Storm Ondoy and Typhoon Pepeng through the Napoles-led foundations between 2009 and 2010.
Napoles argued that the Office of the Ombudsman “miserably failed to establish conspiracy” between her and her co-accused.
She added the Ombudsman had failed to clearly state the place and date in its charge sheet as to when the alleged crime took place, thus disabling her ability to defend herself.
“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,” Napoles’ motion read. (PNA)