A dispute over documents supporting allegations of irregular confidential-fund spending could slow the impeachment trial of Vice President Sara Duterte, with the House prosecution warning that failure to agree on common exhibits could force prosecutors to authenticate the records individually in open court.

House prosecution spokesperson Atty. Benjamin Tolosa said prosecutors had repeatedly reached out to the defense to compare their copies of documentary exhibits before the Senate impeachment court resumes proceedings on Aug. 10.

“If we cannot compare the documents beforehand, we may be forced to authenticate them one by one in open court, and that will take much longer,” Tolosa said in a radio interview.

“Unfortunately, we’ve been trying to reach out with them repeatedly after that hearing but ang last update, ‘yun ang sinuggest nilang date,” Tolosa added.

Tolosa said the prosecution would raise the matter with the presiding officer.

The prosecution has sought to compare the documents so that identical records can be jointly marked and need not be authenticated separately during the trial.

“Kaya gusto namin mapabilis kasi we’re talking about the same documents. Usually, ang ginagawa diyan sa paglilitis, kung pareho tayo ng dokumento, markahan na lang natin ng pareho,” Tolosa said.

The prosecution even offered to use the defense’s copies if the documents were identical.

“Our point was, if for some reason you don’t trust our documents, then let’s use yours. Let’s compare them first. If they’re the same, then we’ll use your copies,” Tolosa said.

The defense has maintained that it cannot stipulate to the acknowledgment receipts because the OVP and Department of Education no longer controlled the documents after submitting them to the Commission on Audit. Defense lawyer Kristine Ferrer questioned how the prosecution obtained its copies from COA.

COA findings already final

Tolosa also defended the prosecution’s reliance on Commission on Audit findings, saying a notice of disallowance is considered final and executory within the audit process even though it may still be challenged before the Supreme Court.

Former COA state auditor Roderick Wamil testified in the previous hearing that he found deficiencies including acknowledgment receipts instead of official receipts, discrepancies in transaction dates and incomplete supporting details required under COA Joint Circular No. 2015-01.

The joint circular sets the rules governing the entitlement, release, use, reporting and audit of confidential and intelligence funds.

Wamil also testified that OVP and DepEd representatives had asked COA not to issue an Audit Observation Memorandum and instead issue audit queries. He described the request as unprecedented in his experience.

Tolosa said Wamil had explained that COA findings are already final and executory once a notice of disallowance is issued.

“So far as the COA is concerned, it's already final and executory,” Tolosa said. “Kaya nga kapag na-issue ka na ng NOD, kailangan mo nang magbayad. Kailangan mo nang magkaroon ng restitution.”

Supreme Court remedy

A party may still challenge the COA action before the Supreme Court, but Tolosa stressed that such a proceeding is not an ordinary appeal.

“That is Rule 65 Petition for Certiorari,” he said. “Ibig sabihin yan, you're asking the Supreme Court to declare null the order of the COA on the grounds of grave abuse of discretion.”

Under the law governing COA decisions, a decision or resolution becomes final and executory after the prescribed period, while the filing of a certiorari petition does not by itself suspend execution unless the Supreme Court orders otherwise.

The Supreme Court has likewise held that COA decisions are generally subject to review only for grave abuse of discretion, with Rule 64 in relation to Rule 65 providing the mechanism for such review. In a 2019 ruling, the Court said it generally defers to COA’s expertise unless its action is tainted by grave abuse of discretion.

“Final and executory na yan, but it could be annulled by the Supreme Court kung may finding ng grave abuse of discretion,” he added.

Tolosa said a party would generally have to comply with the notice of disallowance unless the Supreme Court issues a temporary restraining order.

“Kaya nga sabihin niya, unless may TRO, kailangan mo parang tuluyan, kailangan mo parang bayaran yan,” he said.

He also emphasized Wamil’s testimony on the effect of failing to liquidate confidential funds despite a demand.

Under the rules governing confidential funds, Tolosa said, the demand referred to is a demand to liquidate rather than simply a demand to return the money.

“Magmula pa lang doon sa meron ka ng notice of suspension, it's clear that's already a demand to liquidate. Pero hindi mo parang nagawa, so that already kicks in, there's already a prima facie evidence,” he said.

“Ang assumption na ginamit mo for your own personal use and benefit,” he said. “So ikaw nang magpaliwanag, ikaw magpresenta ng ebidensya para mapakita mo na hindi mo ginamit,” Tolosa added.

Del Campo to testify

The impeachment court is scheduled to resume hearings on Aug. 10, with COA auditor Xylene Del Campo expected to testify as the prosecution continues its presentation on the confidential funds.

Del Campo took over after Wamil transferred out of the unit handling the audit of confidential funds.

Tolosa said Del Campo would address matters beyond Wamil’s personal knowledge, including additional Audit Observation Memoranda and subsequent audit proceedings that resulted in notices of suspension and notices of disallowance.

“Si  Xylene na ho magpupunan dyan,” Tolosa said.

Wamil had testified that representatives of the OVP and DepEd met with auditors shortly before an Audit Observation Memorandum was issued and asked COA to issue audit queries instead if there were problems.

According to Tolosa, Wamil said it was the first time in his experience that such a request had been made.

The prosecution also plans to call Special Disbursing Officers Gina Acosta and Eduard Fajarda as hostile witnesses.

Tolosa said the two officials handled confidential funds for the OVP and DepEd and could testify on the movement and liquidation of the money.

“They are the Special Disbursing Officers. They received the funds, so they can explain where the money went and how it was used,” he said.