Thursday, May 31, 2012
Corona’s ‘palusot’ implodes
PerryScope
by Perry Diaz
Illustration by Francis J. Gacer
The much-anticipated vote on the impeachment case against Chief Justice Renato Corona finally came to pass last May 29, 2012. It was supposed to be suspenseful to the very end with either side winning by a razor-thin margin. But as it turned out it was a massacre! Twenty senator-judges voted for conviction leaving the three die-hard Coronistas – Senators Joker Arroyo, Miriam Defensor-Santiago, and Ferdinand “Bongbong” Marcos Jr. — circling the wagons in a desperate attempt to defend the beleaguered Corona.
The senator-judges were called one by one, in alphabetical order, to explain their vote. Sen. Edgardo Angara was the first to speak at the podium. Up until the last minute, political pundits identified Angara as leaning to acquit Corona, although his son, Rep. Sonny Angara, was one of the prosecution spokesmen. So, when he voted “guilty,” it set the tone for the day. Arroyo followed and as expected voted for acquittal. Then the siblings, Alan Peter and Pia Cayetano explained their personal reasons for their vote for conviction.
Then came Miriam, feisty as ever, who delivered a 20-minute scathing attack on just about everybody… except Corona. She even used words like “kagaguhan” — stupidity – in belittling the prosecutors and anti-Corona senator-judges.
Sen. Franklin Drilon followed Miriam. While he was explaining his vote, Miriam walked out of the trial room in disgust. She must have realized then that the battle was over. Yep, it was time to flee the battleground and leave the other Coronistas to fend for themselves.
By the time Bongbong stepped up to the podium, the vote was running 11 for conviction and two for acquittal. With a conviction short of only five votes and 10 senator-judges still waiting to vote, Bongbong could have voted for conviction and he would have earned a lot of political chips. Or, better, abstained from voting, which would have the same effect as voting for acquittal. However, he stood firmly by Corona to the very end. Loyalty? I don’t think so. I think it was more like kinship to the issue of dollar deposit accounts.
Secrecy of dollar deposits
When the Foreign Currency Deposit Act (FCDA) or Republic Act 6426 was passed into law in April 1972, it did not have a secrecy clause. However, during the martial law dictatorship, President Ferdinand E. Marcos issued Presidential Decree No. 1246 on November 21, 1977, which amended Section 8 of RA 6426 to read as follows: “Secrecy of Foreign Currency Deposits. All foreign currency deposits authorized under this Act, as amended by Presidential Decree No. 1035, as well as foreign currency deposits authorized under Presidential Decree No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositors, in no instance shall such foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or private…”
Absolute confidentiality
But what was Marcos’ real reason when he issued P.D. 1246? Was he protecting the corrupt or — as was officially postulated — encouraging foreigners to invest in the country? That was then. But today, under the 1987 Constitution, does the “absolute confidentiality” clause allow public officials or employees not to disclose or report their dollar deposits in their Statement of Assets, Liabilities, and Net Worth (SALN)?
That was the gist of Corona’s defense. Claiming immunity under R.A. 6426, Corona hinged his final defense on R.A. 6426. During the last day of Corona’s two-day testimony on May 22 and 25, Sen. Alan Peter Cayetano asked him some clarificatory questions. When Cayetano asked Corona how much unreported dollar deposits he owns, Corona answered, “$2.4 million.”
When it was Sen. Jinggoy Estrada’s turn to ask clarificatory questions, he asked Corona how much unreported peso deposits he owns, Corona answered, “P80 million.”
Corona insisted that R.A. 6426 supersedes R.A. 6713, which states:“Section 8. Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.” But R.A. 6713 was enacted into law on February 20, 1989, twelve years after Marcos’ P.D. 1246, which amended R.A. 6426; therefore R.A. 6713 should prevail over the older R.A. 6426.
Sovereign command
Furthermore, R.A. 6713 was enacted to satisfy the mandate of Article 11, Section 17 of the 1987 Constitution, to wit: “A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.”
The nagging question is: Should an older law amended by a presidential decree take precedence over a “sovereign command” of the Constitution? The 20 senator-judges seemed to be convinced that the Constitution has supremacy and primacy over laws legislated by Congress. Almost to a person, they voted to convict Corona based on his non-disclosure of his dollar and peso deposit accounts in violation of the Constitution. As Sen. Teofisto Guingona III said, “How can one man use the Constitution, which mandates full public disclosure, to conceal millions of dollars in his personal bank accounts? This is constitutional perversion in its ultimate form!”
Implosion
But it was Ilocos Norte Rep. Rodolfo Fariñas who hammered in the prosecution’s arguments to destroy Corona’s defense. In his closing arguments last May 28, Fariñas pierced Corona’s defense with one word,“palusot,” which translates to lame excuse or alibi. Throughout his presentation, he used “palusot” numerous times, each time driving a nail into Corona’s coffin. Could it be that “palusot” was subconsciously translated to “guilty” in the senator-judges’ psyche?
Indeed, “palusot” might have been what crossed the mind of Sen. Ramon “Bong” Revilla Jr. After the prosecution and defense teams made their closing arguments, Revilla informed top officials of Lakas-Christian Muslim Democrats that he was going to vote for conviction. It was said that Revilla, who is the President and Vice Chair of Lakas-CMD, decided to go with the “emerging majority vote” because there were not enough senators to vote for acquittal.
With the conviction and removal of Corona from office, President Benigno Aquino III has finally untied the Gordian Knot of corruption. Corona’s departure would pave the way to judicial reforms, which are badly needed to put the country back on track in the fight against kleptocracy and poverty. There is only one road to take from this day on; that is, the narrow and straight path – “daang matuwid” – to economic progress.
A new dawn of hope is finally upon us.
(PerryDiaz@gmail.com)
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“The world suffers a lot. Not because of the violence of bad people, but because of the silence of good people!” – Napoleon
SALN—a weapon of good governance
CALIFORNIA, United States. Soon after the dictator Ferdinand Marcos and his family fled to the US in the aftermath of the 1986 People Power uprising, the Philippine comedic duo of Noel Trinidad and Subas Herrera ("Champoy") embarked on a comedy tour of the US.
One line that always drew howls of laughter was Subas?s comment about how much he felt right at home in the US "because this is where our taxes have been spent."
Subas was referring to the widespread news in the US press that Imelda Marcos had purchased five prime Manhattan properties such as the Crown Building as well as the vast Lindenmere estate in Long Island. It was also reported that she had bought about 200 choice properties in California including at least 30 holdings in Los Angeles.
How much did Ferdinand and Imelda Marcos plunder during their two decades of rule from 1966 to 1986? Estimates may vary from $20B to $50B but suffice to say that when they began, the Philippines was one of the top economies of Asia and when their kleptocratic reign ended, the country was reduced to one of the region?s most impoverished. Despite massive evidence of their brazen plunder, none of the Marcoses have ever been convicted of corruption.
Even the $310M worth of jewelry seized from Imelda Marcos by the Cory Aquino government in 1986 was ordered returned back to Imelda by Gloria Macapagal-Arroyo's Justice Secretary Raul Gonzales on June 13, 2009 because he concluded that the government could not prove that it was illegally obtained.
This was not the intent of the forfeiture law (Republic Act 1379) that was enacted on June 18, 1955. Although it has been ignored, especially during the Marcos era, the law allows the Philippine government to forfeit any property found to have been unlawfully acquired by any public officer or employee. This means that "property acquired by any public officer or employee during his/her incumbency which is manifestly out of proportion to his/her salary" can be seized by the government.
To implement this 1955 law, Congress passed the SALN law, Republic Act 3019, popularly known as the Statement of Assets and Liabilities and Net worth law on August 17, 1960 requiring "every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year (to submit) a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year."
Half a century later, the SALN law lies moribund because there has been no mechanism to verify the SALNs and no penalty for committing perjury in the SALNs.
An example of the weakness of this law was presented on national TV on September 3, 2009 when GMA son Representative Mikey Arroyo was asked by Winnie Monsod to explain how his SALN could show a net worth of P5 million ($100,000) in 2002 and P99 million ($2.2M) in 2008. Mikey's answer: "You know, first of all, I got married. I received lots of gifts. Then in the election campaign, somehow, many people helped me." Is it legal to pocket the money given by campaign donors?
In that TV interview, Mikey reluctantly acknowledged that he partly owned the property at 1655 Beach Park Boulevard in Foster City in the San Francisco Bay Area in California. Although the $1.32M residential property was listed in San Mateo County records in 2009 as owned by his wife, Angela Montenegro Macapagal, it was not listed in the 2008 and 2009 SALNs of Mikey Arroyo.
Despite his admission, Mikey still asserted that there was no proof that he violated the SALN law.
Winnie responded: "You know what, the law is very clear. If there is a problem, when there is a question of unexplained wealth here, the burden of proof is with you, with the government employee. It can't be that (we) have to prove that (you) are guilty. No, the government employee should prove that he is innocent. That's precisely the whole objective of having a statement of assets and liabilities."
Representative Mikey Arroyo, who returns to Congress as the representative of the Ang Galing party list of the marginalized tricycle drivers, technically complied with the law when he filled out his SALN forms and submitted them. But how is the veracity of his SALN verified? And what happens once it is established that he has other undisclosed (Foster City) assets?
Responsibility for the enforcement of the SALN law rests with the Office of the Ombudsman headed by Merceditas Gutierrez, a GMA appointee who was the Ateneo Law School classmate of former First Gentleman Mike Arroyo. Understandably, she has shown no desire to investigate the Arroyos.
The Ombudsman would have to be compelled by a court order to enforce the SALN. Unfortunately, the Philippine Supreme Court - all GMA appointees - has exempted itself and the entire judicial branch from having to comply with the SALN law, a clear violation of a law enacted on February 20, 1989 (RA 6713) that expressly includes members of the judiciary as among those required to submit SALNs.
When the Philippine Center for Investigative Journalism (PCIJ) wanted to investigate reports that certain judges were charging P500,000-P750,000 to issue a restraining order or injunction, it could not obtain the SALNs of the judges because of the Supreme Court's exemption ruling.
After 50 years, the SALN law may be on life support but it isn't dead yet. Since Congress will not likely pass any law that will put more teeth into SALN, President Noynoy Aquino should just sign an executive order designating officials in each agency of government to compile the SALNs of public officials and to review and verify them and post them online. The Department of Justice should then go after the public officials with unexplained wealth and place the onus on them to prove their innocence as Winnie explained to Mikey. That's the way the SALN law was envisioned 50 years ago this week. It's time to finally enforce it and use it as a weapon of good governance.
Send comments to Rodel50@aol.com or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco or call .
Arrest rights abusers, other nations urge Philippines
Jovito Palparan Jr. INQUIRER FILE PHOTO
Several nations pressed the Philippines to step up efforts to arrest the perpetrators of human rights abuses in the country, including retired Army General Jovito Palparan, during a session of the United Nations Human Rights Council (UNHRC) in Geneva on Tuesday.
During the Universal Periodic Review (UPR) of the UNHRC, various countries acknowledged the Philippines’ ratification of treaties, campaigns against human trafficking and training of security forces to improve human rights in the country, the New York-based watchdog Human Rights Watch said.
But they also pointed to the government’s “dismal record” in prosecuting cases of extrajudicial killings, torture and enforced disappearances, HRW said from Geneva.
“Several countries called on the government to redouble its efforts to arrest alleged perpetrators like retired Major General Palparan, who faces an arrest warrant in connection with the kidnapping of two activists in 2006,” it added.
UPR Watch Philippines said the Australian mission, in particular, urged the Philippine government to arrest the fugitive Palparan.
Eluded authorities
Palparan has eluded authorities since a local court issued a warrant for his arrest over the disappearance and illegal detention of University of the Philippines students Sherlyn Cadapan and Karen Empeño.
The United Kingdom, Spain and the Holy See, on the other hand, called on the Philippines to “completely eradicate extrajudicial killings,” UPR Watch Philippines said.
A total of 69 countries quizzed the Philippine delegation led by Justice Secretary Leila de Lima on its human rights record.
At least 22 countries expressed concerns over the continuing spate of extrajudicial killings, enforced disappearances and torture, in particular, and impunity in general, UPR Watch said.
Several countries called on the Philippines to dismantle all paramilitary groups and militias, it said.
Established mechanism
The UPR is a mechanism established by the Human Rights Council to address human rights violations and improve the human rights situation on the ground in each of the UN member states. The second cycle of the UPR began this year and will be completed by 2016.
The Philippines’ Commission on Human Rights Chairperson Loretta Rosales, who attended the session as an independent observer, confirmed the comments made by the other countries.
Committed
“There was a clear pattern of questions regarding impunity, the failure as yet to eradicate extrajudicial killings, enforced disappearances and torture, especially by the military and police forces; the failure of the military to control paramilitary forces like the Cafgu (Citizen Armed Forces Geographical Unit), the sorry state of detainees in detention, and the delay of the judicial process in addressing concerns within the jail system,” Rosales said in an e-mail.
She said the Philippine delegation “committed” itself to studying the recommendations and enlisting Human Rights Watch and the Commission on Human Rights “in collectively working out the process of implementing the recommendations for the enhancement of human rights on the ground.”
The United States said that “impunity in human rights violations” continued, citing institutional barriers to the attainment of justice for victims of rights abuse.
Antitorture law
Ireland called for “decisive measures” to address the problems. Germany urged the strengthening of accountability mechanisms and the conduct of impartial investigations in cases involving state forces, UPR Watch said.
The Netherlands asked that the issue of impunity be addressed and called for the prosecution, trial and conviction of perpetrators, while Denmark called for the full implementation of the antitorture law, saying that state forces were still involved in abuses.
Spain and Canada called for the dismantling of all paramilitary groups and militias, a position that gained support after the Maguindanao massacre of 2009.
Belgium asked the Philippines about measures to record cases of extrajudicial killings, calling for the ratification of the convention against enforced disappearances. Austria expressed concerns over attacks on journalists and cases of torture, UPR Watch said.
France said it was “alarmed by the extrajudicial killings and enforced disappearances and continuing violations against journalists and human rights defenders.” Japan echoed this, saying that “extrajudicial killings continue as a significant political issue.”
Have rice scientists failed us?
Educators Speak
By EUFEMIO T. RASCO JR. (Academician, National Academy of Science and Technology and Executive Director, Philippine Rice Research Institute)
October 29, 2011, 7:44pm
MANILA, Philippines — Local scientists have often been blamed for their failure to contribute to the growth of rice production in the Philippines. A typical comment written by a well-known columnist is: “Once upon a time, many Thai agriculturists learned their stuff from UP Los Baños, likely benefiting Thailand’s export-oriented rice industry. It had always been a mystery why we have failed to benefit from the scientific knowledge of our scientists in growing rice. We seem doomed to be a rice importer year after year.”
This statement is only half true. Yes, Thai agriculturists studied in UP Los Baños. But no, our country did not fail to benefit from scientific knowledge. In fact, the growth in rice yield in the Philippines in the last 10 years (2.19% per year) is faster than the growth rate in Thailand during the same period (1.68% per year). Our average rice yield in 2009 (3.59 t/ha) is higher than that of Thailand (2.87 t/ha).
The most important reasons why Thailand exports rice to the Philippines, have nothing to do with the ability of our rice scientists. They are: 1) Thailand’s area planted to rice (10.96 million hectares) is higher than that of the Philippines’ (4.53 million hectares), and 2) Thailand’s population (70 million) is smaller than that of the Philippines (101 million). Simply stated, the Philippines has more mouths to feed (20 per hectare of rice land) compared to Thailand (6 per hectare of rice land).
Our palay output has been on a steady increasing trend in the last 40 years. Our annual growth in palay production in the last decade, when the Philippine Rice Research Institute’s work started to bear fruit, far exceeded our annual growth during the Green Revolution years, from 1970 to 1984 before the creation of PhilRice. During these Green Revolution years, the main sources of rice technologies were UP Los Baños, the Bureau of Plant Industry, and the International Rice Research Institute. Our annual growth in palay production in the last decade was also higher than the period 1985 to 1999, when PhilRice activity was just beginning.
We reached our peak in palay production at 16.82 million tons in 2008. In fact, we ranked 8th as the world’s top palay producer during this year. Aside from increased irrigated areas, which effectively increased the area planted to rice, one factor that contributed to the increase in palay production was the growth in yield or production per unit area. From 2000 to 2010, the growth in yield contributed 62% to the overall growth in palay production, which was about 63 kg/ha annual growth in yield. During 1985 to 1989, the annual growth in rice yield was only 18 kg/ha.
In terms of average yield in all ecosystems, the highest yield attained was 3.80 tons/ha in 2007. In 2010, the national average yield was 3.62 tons/ha in all ecosystems, 3.99 tons/ha in irrigated ecosystem, and 2.81 tons/ha in non-irrigated ecosystem. This is almost 3x increase in rice yield compared to what we were getting in the ’70s when we had an average yield of only a little over 1.5t/ha in all ecosystems.
All these were achieved with the help of better rice varieties and farming technologies developed by our scientists.
In 2010, our total rice production was reduced to 15.77 million tons because of the drought brought by the El Niño phenomenon in the first semester and typhoon Juan in the 4th quarter. Without these calamities, our palay production could have been somewhere between 17 to 18 million tons in 2010, very close to a level of self-sufficiency.
Overall, despite the calamities, we had a relatively good performance in the production side. However, the Philippines still experiences a declining level of self-sufficiency and increasing dependence on imports. From 91% in 1990, our level of self-sufficiency decreased to 80% in 2010. This is because of the fast-increasing population and rising per-capita rice consumption (PCRC). The population is steadily growing at a rate of 2.13% per year and there was a tremendous increase in PCRC from 95kg per year in 1995 to about 120 kg per year in 2010.
A second common criticism aimed indirectly at the rice scientists but more directly at the government, is that we have not been utilizing the best of rice technologies. For example, much criticism has been directed at the recent government policy of shifting subsidy from hybrid seed to irrigation and machinery.
The truth is that the government has been very supportive of Hybrid Rice Technology since its launching in 1998. In fact, the increased Hybrid Rice cultivation area from merely a few hectares during its launching in 1998 to more than 360,000 hectares in 2005 was due to government intervention through the Hybrid Rice Commercialization Program (HRCP). HRCP was aimed at promoting the widespread adoption of hybrid rice seed technology to enhance farm productivity and income. The government provided training to organized seed growers, production support in the form of free seed parentals, sprayers, GA3, and technical and credit assistance. The government also initially procured the hybrid seed produced by the seed growers at a guaranteed price and distributed to master-listed farmer-beneficiaries as seed subsidy.
HRCP also encouraged private companies to engage in the hybrid rice seed business. The government allowed these companies to set market price and sell their own hybrid rice. At the same time, they are allowed to collect from the government the amount of seed subsidy given to farmers.
But subsidies or policies that involve subsidies usually do not work over the medium or long term, a fact that is probably not disputed by the HRCP or even the private seed companies. The government recognizes that at an early stage of a new technology such as hybrid rice, government support is often required, provided that an exit strategy is clearly charted out.
Policy recommendations focused, therefore, on gradual deregulation of the hybrid sector towards building a full commercial hybrid rice seed sector. This included measures such as gradually reducing subsidies, more self-regulation (truthful labeling) of the seed sector, public-private sector models for R&D, and private as well as cooperative models for seed production. This process may not be easy and may take time to become fully operational, but it is the general direction in which hybrid rice should develop.
The government’s new administration also, to some extent, supports hybrid rice technology. In fact, the Food Self-Sufficiency Plan encourages the use of hybrid rice varieties where suitable and the government will allow a market-oriented distribution of hybrid seeds, which will be led by the private sector.
Lastly, the usual criticism that we are doomed to be a rice importer reveals more of the defeatist attitude of Filipinos than the potentials of our technology in rice production. The truth is we only need to increase our average yield to about 4.5 t/ha from around 3.8 t/ha last year to achieve self sufficiency in two years. While this calls for an annual increase which is far beyond that which we have demonstrated historically, it is very low compared to the potential of our rice technology. Nationwide yield trials consistently show that 6-7 t/ha is the yield norm, while some farmers get more than 15 t/ha.
It’s all over: Anatomy of a checkmate
BY
Yesteday afternoon, the Senate acting as the impeachment court decisively handed down a guilty verdict in the impeachment case of Renato Corona. With a vote of 20 senator-judges in favor and 3 senator-judges against, the impeachment court judged Mr Corona guilty of Article II of the Articles of Impeachment filed by the House of Representatives and voted to remove him from his position as Chief Justice.
The decision was arrived at after 5 months of trial which saw evidence presented, documents produced, and testimony offered, including Corona’s. The decision was arrived at after due deliberation by the senator-judges, to whom the solemn decision was entrusted by the people – through the Constitution.
This is my first attempt to analyze yesterday’s May 29 decisions and what led to them. In my Eagle Eyes column Tuesday in the Manila Standard entitled, “Not yet over,” I actually thought that this might go to the Supreme Court. But Monday’s closing arguments and yesterday’s proceedings practically ensured the end. The individual and collective reasoning of the senator-judges, how they arrived at their decisions, and the acceptance by Mr Corona of the verdict indicated a finale.
Later this week, I will write a longer, more reflective piece sharing what I think are lessons learned from the impeachment of Mr Corona. I will call on the anti-Corona camp, including the prosecution, not to gloat and to learn also from their mistakes in the trial.
Very biting are the words of Sen Juan Ponce Enrile, the presiding officer of the impeachment court when he “cautioned against unethical and unprofessional conduct, the penchant to engage in trial by publicity, to use the media to disseminate and advance so-called “information” or “evidence,” to provoke and disrespect this Court and its members, and to irresponsibly hurl disparaging insinuations and accusations.”
Socratic dialogue
In this first analysis, however, I will focus in particular on the closing arguments and how effectively the defense panel of former Chief Justice Corona was checkmated by a combination of prosecution arguments and the brilliant interpellation by Senator Enrile of Justice Serafin Cuevas. The latter colloquy will be remembered forever as a classic Socratic dialogue (which rarely happens in courts or law classrooms these days), where two masters lock horns intellectually, and from which encounter, truth emerges and shines.
For many years from now on, in my classes in constitutional law and public officers, I will show that exchange to my students to show them an example of the best of legal thinking and lawyering.
It should be recalled that on Monday, the prosecution and the defense gave their closing oral arguments and summation of their respective cases. The prosecution argued in essence that the ex-Chief Justice willfully failed to disclose his assets and liabilities in his SALN; and that his non-disclosure is tantamount to an impeachable offense. The defense, for their part, argued that Corona’s failure to disclose his P183-M dollar and peso deposits was not an impeachable offense; that his omissions were done in good faith.
Justice Cuevas, Dean Eduardo De Los Angeles, and Atty Dennis Manalo argued for the defense, while Speaker Sonny Belmonte, Congressmen Rodolfo Fariñas and Niel Tupas made the case for conviction.
My initial impression was that the defense had a stronger and disciplined argument based on a consistent legal theory that Mr Corona was not guilty due to his interpretation of the SALN law and the law on bank secrecy and confidentiality of foreign currency accounts.
But a closer look also showed that the prosecution, particularly the “palusot” litany of Congressman Fariñas and the straight forward and dignified summary of the case against Corona by Speaker Belmonte, was actually effective. Even Congressman Tupas’ rhetorical speech was valuable in laying down the grounds for conviction.
More remarkable, however, than the impassioned argumentation by the opposing parties was the exchange that transpired between Enrile and Cuevas. This is where the rubber hits the road and enlightens all of us.
Master stroke
In fine, Enrile declared that no law punishes a public official for disclosing dollar deposits in his Statement of Assets, Liabilities and Net Worth (SALN). What is prohibited, according to him, is third-party disclosure, but the depositor is not prohibited from disclosing those accounts.
He then asked Justice Cuevas if a public official who declares his dollar accounts in his SALN may incur any penalty under the foreign currency deposits law. Cuevas replied he was unsure. Further, Enrile stated, “We are forgetting that the law allows exposure of foreign currency deposits if the depositor himself would do it.”
In a single stroke, the presiding officer dismantled the argument that the defense had been using all along – that Mr Corona was protected by the absolute confidentiality afforded by RA 6426. What the presiding officer was, in effect, saying was that Corona could have opened his accounts to the public. The law merely prohibits third parties – not the account owner himself or herself – from disclosing the subject accounts to the public.
Notice that this issue goes to the very heart of the defense’s argument that nondisclosure was not intentional, deliberate, and was, in fact, made in good faith.
This brings us to the second question: Is the constitutional provision compelling public officials and employees to disclose all their assets deemed a “sovereign command?” If so, will disobedience of that command constitute a culpable of violation of the Constitution? Do you consider that as a command or something that can be disregarded?”
Enrile then proceeded to quiz Cuevas about the Latin word culpa, in reference to Corona’s alleged culpable violation of the Constitution. Bad luck, the defense could not give an intelligible answer, according to Enrile.
In my view, Cuevas knew what culpa is but because the answer would not favor his case, he tried to evade it. Congressman Fariñas intervened and gave an answer helpful to the defense which Enrile ignored.
Demolishing ‘good faith’
What happened in this colloquy? In essence, this was a case of the wise lawyer Enrile declaring the emperor had no clothes. He was not the boy of the fable, but clearly with a childlike and youthful mind, he was able to see the truth this way and frame it properly. His line of questioning was a well-laid syllogism worthy of a Greek philosopher.
The first proposition is – no law prohibits the Chief Justice from disclosing his foreign accounts; second proposition – he failed to do so despite the constitutional provision mandated by a sovereign command. And he clinched the syllogism by concluding that even if the act was not intentional – made in good faith as the defense would put it – if the same is tainted by culpa, then such act is punishable; thus, the phrase “culpable violation of the Constitution.”
After that exchange, I immediately recalled what was taught to me as a 1styear law student in 1985 by my UP Law criminal law professor, the brilliant Professor Fred Tadiar. I got reminded as well of how I taught the same subject in UP Law in 1991. Indeed, lawyers and law students know these concepts.
The Revised Penal Code punishes felonies accompanied by dolo, or willful intent. However, it likewise punishes felonies that are committed by means of fault (culpa) which, according to Article 3 of the code, is a wrongful act resulting from imprudence, negligence, lack of foresight, or lack of skill.
In effect, even if the non-disclosure was not intentional or attended by malice, it can still be made punishable when accompanied by culpa or fault resulting from imprudence, negligence, etc. This negates the defense’s theory of good faith.
This dismantling of the defense became the rationale for the impeachment court’s decision. Indeed, it is interesting to note that the conviction of Mr Corona was arrived at, not principally because of the evidence of the prosecution, but because of evidence that ironically the Corona defense presented. These included the testimonies of Ombudsman Carpio-Morales which led to the production of the AMLA document and Corona’s admissions of why he did not disclose his dollar and peso deposits.
The prosecution however should be credited for presenting enough evidence to compel the defense to take the risks they did in presenting the Ombudsman and Mr Corona. Congressman Walden Bello, former senatorial candidate Risa Hontiveros, Emanuel Tiu Santos, and Harvey Keh should also be credited for filing complaints with the Ombudsman that led to the defense decision.
Enrile’s cue
While the questions of Enrile were addressed to Cuevas, were they, in fact, an attempt by the presiding officer – albeit subliminally made – to cue the senator-judges on what line of reasoning to take when arriving at their respective decisions? Or was it a deliberate attempt by the good senator to hint to the public what vote he was taking?
Let me hazard a guess – Enrile was actually assuring all and sundry that the Supreme Court cannot intervene because the decision would be based, not an on interpretation of law, but on a finding of fact – that is, that the Chief Justice culpably violated the Constitution which commands all public officials to disclose all assets.
Listening to the speeches of the senator-judges that voted with Enrile, it is clear they got the hint. Movie actors and senators Lito Lapid and Bong Revilla, like the other non-lawyer senators, gave common-sense explanations why they were voting guilty and basing their decisions on the belief that Mr Corona’s explanation was not believable.
The senator-lawyers like Edgardo Angara, the Cayetano siblings Alan and Pia, Koko Pimentel, TG Guingona, and Kiko Pangilinan were also very careful in rejecting the legal defense and making a factual finding of guilt. And of course the coup de grace was dealt by Enrile himself.
In explaining his vote, as Rappler has reported, Enrile concluded that Corona “was deemed duty-bound under the law, they being under his name by his own decalration,” to declare his peso and dollar accounts in his SALN. “I regret that no less than the chief magistrate of the land would think otherwise,” Enrile declared.
And so we end with a clear vote of conviction arrived at in such a way that makes it impossible for the Supreme Court to review it. That is why Mr Corona has accepted the verdict. All roads are blocked and there is no exit except to leave with as much dignity as possible. The country should be grateful that he has done so this way and not run to the Supreme Court which surely would have rejected an appeal.
To end this first analysis in the right spirit, I would like to quote and make mine a Facebook post of my esteemed colleague Prof Diane Desierto: “It is finished. It is time to let the former Chief Justice and his family take up their legal defenses as private individuals before regular courts. It is left for everyone else to act with dignity and respect for the verdict, move on and discharge our duties of citizenship, and continue building our country towards the vision of the framers of the twenty-five year old 1987 Constitution. Today, our Constitution visibly reigns.” – Rappler.com
PNoy and the Waiver: The Straight Path to Hypocrisy
Once upon a time, then senator Benigno “Noynoy” Aquino III made a bold declaration in a press release during his presidential campaign.
“I am willing if necessary (to waive my rights under the Bank Secrecy Law)…but I will not presume for others who will join government,” he said in the Second Integrity and Human Rights Conference at Hotel Intercontinental Manila.
Under Republic Act 1405, disclosure or inquiry into deposits with any banking institutions is prohibited. Section 2 of the law considers as “absolutely confidential” all deposits with banks or banking institutions in the Philippines.
Some exceptions are a written permission of the depositor or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.
Violations carry a penalty of up to five years imprisonment or a fine of up to P20, 000 or both.
(Source:Link)
In his time as president, Noynoy, now using the sobriquet “PNoy,” began his “clean-up” campaign to rid the government of supposedly elusive crooks from the past administration. The one that took the blow of the president’s conquest was none other than Chief Justice Renato Corona.
In the duration of his trial at the Senate, coupled with the persecution of the congressmen and vindictive Filipinos, Corona in the end came up with a controversial dare; the bank secrecy waiver. Alongside authorizing government agencies to directly look into his bank accounts, Corona also posed a challenge to the other politicians of the land to do the same, for the sake of transparency which everyone seems to want anyway. Why, this is the perfect time for the president to show his stuff; now is the perfect for him to fulfill his pledge to the Filipino people hungry for change. But—
Malacañang dismissed suggestions that President Benigno Aquino III fullfil a campaign promise to waive his bank secrecy rights “at this time” the way impeached Chief Justice Renato Corona did last week.
(Source: Link)
And so the straight path that had no definite end was no more; the said path was leading to hypocrisy.
…
Yes, PNoy rejected the golden opportunity to uphold his principles way back from his promise-filled and platform-less campaign to the Filipino people, specifically his declaration to waive his rights under the Bank Secrecy Law. Examining Palace spokesperson Edwin Lacierda’s statement:
“It is incumbent on all to recognize that it is Mr. Corona who is on trial,” Palace spokesperson Edwin Lacierda said over the weekend when asked to comment on reminders posted on online forums that Mr. Aquino had pledged to waive his rights under the bank secrecy laws and open his bank accounts to the public during the presidential campaign of 2010.
This reasoning is quite ridiculous. Does the Constitution provide that an ongoing impeachment trial prohibits a public official from upholding his campaign promises? But then, of course, it’s because Corona is the one making the dare. How can PNoy accept that the one whom his administration perceives to be Arroyo’s corrupt lapdog will turn out to uphold the very principles PNoy promised the people in the past? This flies in the face of his persecution project against the respondent. Hence, the dissent, albeit coupled with faulty reasoning.
Lacierda said that asking Mr. Aquino to sign a waiver of his bank secrecy rights while the impeachment trial against Corona is going on was like lumping law-abiding public servants together with those who are being called to account for wrongdoing.
Who or what can verify that PNoy is a law-abiding citizen? The only thing that can be assessed is that PNoy is not the one on trial; that is all. And this does not answer the previous question: Does the Constitution provide that an ongoing impeachment trial prohibits a public official from upholding his campaign promises?
Undersecretary Abigail Valte, the deputy presidential spokesperson, said over state-run radio dzRB Sunday that waiving bank secrecy rights was a voluntary and personal decision.
Yes, Valte was right in saying that waiving rights is a voluntary and personal decision. However, there is this notion of expectation for public officials, especially when they have made a promise to the people during their campaign. People have invested their trust on what those officials have said. As a proponent of a supposedly straight path, shouldn’t PNoy know that much?
Asked about the campaign promise, Lacierda said Mr. Aquino’s statement of assets, liabilities and net worth (SALN) already includes the mandatory waiver for the Ombudsman to obtain documents from the appropriate government agencies to verify the extent of his wealth.
“To those who are asking if the President will sign a waiver, for the record the President’s SALN has always been made public and it includes the mandatory waiver for the Ombudsman,” he said.
Yes, the president does subject himself to the power of the Ombudsman (together with the other public officials), but the mandatory waiver is not the same as PNoy’s promise to waive his bank secrecy rights. Waiving your bank secrecy rights means you relinquish that right; that would mean anyone at any time can view the contents of your bank accounts whenever they feel like it. This is the consequence of PNoy’s promise.
Meanwhile, the Ombudsman can only investigate bank accounts based on an existing credible complaint. Furthermore, the Ombudsman also subjects himself/herself to existing constraints in the policies of some government agencies she cooperates with (e.g., direct inquiry to AMLC reports require a court order from a competent court).
There is a big difference between the mandatory waiver and PNoy’s right-waiving. In any case, PNoy has really outdone himself in giving us a thorough look at his increasingly hypocritical demeanor. Lovely.
The way I see it, there are at least two ways for him to somehow escape this dilemma, both of which will certainly damage his credibility. Either he can just accept Corona’s dare, which can show his fickleness, or he can publicly reject his previous claim about waiving his rights, which will fly in the face of what his supporters believed in.
Time to show some spine, PNoy.
Wednesday, May 30, 2012
Pluses and minuses
The impeachment court has finally come out with the verdict on Chief Justice Renato Corona. The next question is: What does this mean for us?
Will it mean more jobs and higher wages to enable Filipinos to cope with increasing prices of practically everything?
Will it mean less criminality and a more secure environment for citizens?
Will the verdict translate to timely and adequate action to keep the poor out of harm’s way in the event of typhoons and resulting floods, landslides and similar disasters?
All these questions are addressed to Malacañang, which spent months fixated on pinning down the chief justice in the face of other concerns that need attention. Congress, too, let its work slide.
Perhaps now they can get back to work.
***
The impeachment court’s decision on Corona carries with it plus and minuses.
We all agree on the need for transparency and accountability in government office. This is mandated by the Constitution. Article XI, Section 1 says that “public office is a public trust.”
Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency. They must act with patriotism and justice, and lead modest lives.
The Corona trial also serves as a wake-up call for the members of the Judiciary. They should respond to calls for reform. Their branch of government has been weighed down by complaints of graft and corruption.
Whatever we say about the final decision, it shows us one thing: That democracy works in this country through the system of checks and balances.
Unfortunately, the trial has damaged the Supreme Court as an institution. It has also sent a chilling effect—that the Palace can mobilize agencies such as the Land Registration Authority, Bureau of Internal Revenue, Office of the Solicitor General, Office of the Ombudsman, and the Anti-Money Laundering Council.
This tells us how far a President is willing to go in the name of what he calls reform, using his awesome powers.
Is it worth it? Are we now to agree that the end justifies the means?
***
With the impeachment teleserye over, the nation’s focus now is on politics. Indeed, the elections next year is fast approaching.
Many interesting things are happening: Former President Joseph Estrada is running for mayor in Manila and movie and television personality Vic Sotto is trying his luck against Mayor Herbert Bautista in Quezon City. Boxing icon Manny Pacquiao is running for governor of Sarangani. The local scene is lively.
But the focus is on the senatorial race. The United Nationalist Coalition of Vice President Jejomar Binay and former President Estrada has come out with a formidable line up, which includes Chiz Escudero, Loren Legarda, Alan Peter Cayetano, Koko Pimentel, Greg Honasan, Jackie Ponce Enrile, JV Ejercito, Dick Gordon, Migz Zubiri, Mitos Magsaysay, Gwen Garcia—and possibly two more.
We can be sure that at least 10 of them will win. This leaves only three slots for newcomers and the other wannabes.
On the Liberal Party side, President Aquino has already endorsed four—Customs Commissioner Ruffy Biazon, Tesda Director Joel Villanueva, former party list Rep. Risa Hontiveros-Baraquel and Rep. Sonny Angara, son of Senator Edong Angara. Oh well, they can dream, can’t they?
The Nacionalista Party wants to coalesce with the Liberal Party. Senator Manny Villar wants his wife Cynthia to run for the Senate. Whether or not she can win is a big question mark.
***
The move of Malacañang to have Customs Chief Biazon run for the Senate is considered by many as a big mistake. If he runs, he will be considered a lame duck—entirely useless as chief of the Bureau of Customs.
My gulay, Biazon has hardly warmed his seat and now he will leave it at once? Observers say the frequent changing of top officials has been responsible for the failure to curb smuggling.
In fairness to Biazon, he’s trying his best to institute reforms in his bureau.
***
I heard Ilocos Norte Rep. Rudy Fariñas make a summation last Monday’s at the impeachment trial. I could not help but recall that he had confessed that he had not signed the Articles of Impeachment against Corona because he was a slow reader and could not possibly have read everything.
But last Monday, Fariñas was there accusing the chief justice of so many things, saying that Corona used lame excuses in defending himself from the charges thrown at him by the prosecutors. I believe the word he used was “palusot.”
Wasn’t there a point when Fariñas was ready to resign from the prosecution?
But, there he was, castigating Corona for the lame excuses he offered about not disclosing his peso and dollar accounts in his Statement of Assets, Liabilities and Net Worth.
There is a name for people like Fariñas, but I won’t say it here because it’s not polite.
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