THE REPORT that the United States Justice Department has filed a civil forfeiture complaint over the assets of Janet Lim Napoles in the US is like fresh air in a polluted room.
It’s been one year and three months since Ombudsman Conchita Carpio-Morales filed plunder cases against Napoles and her alleged co-conspirators in the pork barrel scam—Senators Juan Ponce Enrile, Bong Revilla and Jinggoy Estrada—with the Sandiganbayan.
At the rate the cases are moving in court, it may take another three years before they are finally resolved, including expected appeals to the Supreme Court.
In what may be a portent of things to come, the writs of preliminary attachment issued by the Sandiganbayan on Revilla’s and Estrada’s bank accounts to satisfy the civil liabilities that may be adjudged against them yielded disappointing results.
Revilla’s bank accounts showed a measly P290,000, those of Estrada had a paltry P70,000. If the two are found guilty, the monetary damages that may be assessed against them have to be satisfied through the sale of their real estate properties. This process may take one to two years.
In contrast, the move of the US justice department to confiscate Napoles’ properties in the US, including a high-end Los Angeles condominium unit and a motel near Disneyland, will be a walk in the park.
Seizure
The civil forfeiture complaint is based on moral and legal grounds.
Citing Napoles’ transfer to the US of $12 million representing part of the proceeds of the pork barrel scam she allegedly engineered, a US attorney said “the Justice Department will not allow the United States to become a playground for the corrupt or a place to hide and invest stolen riches.”
Under US laws, law enforcement authorities can seize the assets of persons suspected of involvement in criminal activities without charging them of any crime.
The action is directed against the properties of the suspected criminal, not the person who supposedly owns them.
It is based on the assumption that by depriving criminals of the materials that are used or were acquired through illegal means, they will be deterred from or punished for engaging in criminal activities.
Since no deprivation of liberty or freedom is involved, only substantial or preponderance of evidence is required to allow the forfeiture. If the action were treated differently, i.e., as a criminal case, proof beyond reasonable doubt has to be presented for that purpose.
Although originally intended for organized crime syndicates, this judicial process has been applied by law enforcement authorities to criminal acts that, in their judgement, justified its application.
Burden of proof
The US courts have, by and large, been liberal in granting applications for civil forfeiture filed by the authorities.
The principal advantage of civil forfeiture complaints over other similar actions is the targeted assets do not enjoy a presumption of innocence.
Once the complaint is filed, temporary ownership over the properties in question can be exercised by the applying party. That ownership becomes permanent upon the court’s approval of the seizure.
The burden of proof is on the owner or any party who claims ownership to prove that the seized properties are not the proceeds or instruments of a criminal or illegal act.
Until the court rules in the opposing party’s favor, the assets will remain in the custody of the law enforcement authority concerned.
Napoles is in a “lose-lose” situation in the forfeiture case filed against her assets by the US judicial department.
If she wants to contest it, she will have to engage the services of an American lawyer who knows his way around in cases of this nature, and be prepared to incur huge attorney’s fees and expenses for that effort.
Unless the Anti-Money Laundering Council’s freeze order missed some of Napoles’ bank accounts or she has a multimillion dollar secret stash in the US, it is doubtful if she has sufficient resources to sustain this action.
Consequences
The problem with claiming ownership though is, the Bureau of Internal Revenue (BIR) will be watching from the sidelines to figure out any tax liability that may be due her for such ownership.
Where did she get the money to pay for those assets? If it came from her earnings in the Philippines, did she declare them in her income tax returns and pay the appropriate taxes?
If she did not, then she can be held liable for non-filing of income tax returns and failure to pay the right income tax or tax evasion.
Considering the strong adverse public reaction to the pork barrel scam, Napoles cannot expect to receive kid gloves treatment from the BIR or Department of Justice. They will, literally and figuratively, throw the book at her.
In case Napoles does not lift a finger over the forfeiture case, the US justice department’s seizure of her assets will be a breeze.
The impression that the US can be a haven for money launderers or nesting ground for illegally acquired wealth in impoverished country will likely not sit well with the US judge who will hear the forfeiture case.
Once Napoles’ assets have been seized and sold, the Philippine government can request that all or part of the proceeds of the sale be turned over to our country, in the same way the US earlier returned the $1.3 million that then Major Gen. Carlos Garcia, a former military comptroller, spirited out of the country.
The US forfeiture case, the conviction of Napoles for serious illegal detention, her and her children’s prosecution for tax evasion, and their and her cohorts’ [hopefully] conviction somehow prove that the law of karma is still in force.
For comments, please send your e-mail to rpalabrica@inquirer.com.ph.