Political prosecution

 

 

In the first year of his presidency, President Noynoy Aquino was successful in having impeached former Supreme Court Chief Justice Renato Corona, whom he considered one of the main obstacles in his objective of cleaning the government of corruption, a promise he made during the election campaign. The other obstacle is former President Gloria Macapagal-Arroyo, who is currently in hospital detention and waiting for her day in court on charges of plunder and election sabotage.

 

Now, the Aquino administration is determined to flush out some high-profile members of Congress for allegedly taking part in a pork barrel scam that involved billions of pesos that were supposed to be earmarked for projects under the Priority Development Fund (PDAF). Senators Juan Ponce Enrile, Jinggoy Estrada and Ramon Revilla Jr. are all prominent members of the opposition, with the latter being touted as a presidential hopeful in the 2016 elections.

Members of President Noynoy Aquino's poltical opposition who are target of
of the current PDAF scam investigation. Photo courtesy of rappler.

The President’s Secretary of Justice, Leila de Lima, has promised to add more senators to the list of the accused in the scam. Likely to be accused are Senators Ferdinand “Bongbong” Marcos Jr. and Gregorio Honasan and about 23 representatives in Congress, all members of the opposition.

 

There is a very clear pattern in President Aquino’s crusade against corruption in high levels of government. From the ousted former SC Chief Justice Corona to ex-president Gloria Arroyo and the senators and representatives named in the PDAF mess, the objective appears to be the annihilation of the opposition. If this is not political prosecution, what else is it?

 

President Aquino, a member of Congress before becoming president, and all other members of the legislature could have collected their share of their PDAF allocations during the COA audit year 2007 to 2009. Singling out only members of the opposition as culpable for receiving bribes under the PDAF scam, while overlooking others simply because of their affiliation and support of the president’s political party, is a hallmark of a systematic prosecution for political purposes.

 

Besides, PDAF represents only 1.3 percent of the national budget. This means that there are other and bigger sources of corruption for which the current government is being opaque about.

 

The President’s so-called social fund, which is actually discretionary funding not subject to oversight and audit, is far larger than PDAF and about 1.5 trillion pesos. If the President is sincere in his desire to wipe out corruption in government, he should start being transparent at home. His entire cabinet may not be as clean as the president would like the public to believe.

 

There is a public perception, which the current president will probably admit, that the entire Philippine government, from the Executive to the Legislative to the Judiciary, has been immersed in the culture of open and pervasive graft and plunder. This cancer of corruption has once earned the country of being “the most corrupt country in Asia,” or the “perpetual sick man of Asia.”

 

The Corruption Perceptions Index (CPI) of Transparency International for the year 2012 ranks the Philippines at 105 among countries and territories on how corrupt their public sector is perceived to be. A ranking of 105 means that the country is more corrupt from among the countries surveyed, with a lower ranking indicating a country is least corrupt, like Denmark which stands at number 1. The Philippines is virtually tied with Mali, a country in West Africa that is in turmoil because of Islamist rebellion. This index of corruption for the Philippines would certainly be altered by the PDAF scandal depending on the results of the ongoing investigation and possible prosecution of all those involved.

 

What is probably more disturbing with the PDAF mess is not the exposé of the massive use of these funds but how those accused of corruption are being prosecuted. Prosecution of the corrupt in government, if done honestly and through due process of law, will change not only our perception of corruption but strengthen everyone’s respect for the rule of law. But if the corrupt are prosecuted for the purpose of decimating the opposition and preserving the status quo of those in power, this will only encourage more corruption, disdain for accountability, and the perpetuation of a culture of impunity.

 

Totalitarian or repressive governments do not have a monopoly of political prosecutions. They can also happen in a democratic system, albeit a failed one, like the Philippines. It is quite easy to spot when a government considers it politically expedient to prosecute its enemies, detractors and critics.

 

Former Chief Justice Corona was an easy target and thus became a fall guy for the previous administration that he served with blind loyalty. Deposing him for his failure to honestly disclose his statement of assets and liabilities net worth (SALN) is a shallow rationale when his colleagues in the court or even other high-ranking officials of government might equally be guilty of the same omission. Corona was indeed guilty for serving his master by accepting his midnight appointment as Chief Justice of the Supreme Court, which shows a lack of integrity when he could have simply allowed the incoming president to exercise that prerogative.

 

The senators and other members of Congress named as respondents in the PDAF complaint represent a clear and present threat to the president’s rule, thus it becomes politically expedient to prosecute them in order to preserve the transfer of power to his anointed successor(s).

 

Janet Napoles, suspected mastermind of the P10-billion peso scam in
government custody. Photo by hereisgone2003.

In the PDAF case, the justice system is being exploited by the incumbent government to preserve itself and ensure continuity of its stranglehold of power to the next government, which of course will be sympathetic to its administration and will simply ignore whatever abuses or corrupt activities it had committed. The timing and circumstances of the continuing PDAF investigation are particularly suspect because if the government is successful, criminal charges against the accused may disqualify them for running in office in the next elections.

 

We have the flashpoints of whether the present PDAF investigation and prosecution is politically motivated. We all know that all those named in the complaint are high-profile members of the president’s opposition. They may seek election to the high office of the land, which is a threshold inquiry. This is not saying that being in the political opposition carries an expectation of immunity because those in the opposition can still commit a crime.

 

Plunder is such a high crime that prosecuting those accused would be equally difficult, but it can achieve so much media coverage and publicity that the current government may need to deflect public dissatisfaction of the President’s inept leadership. For instance, incessant news coverage of the PDAF scandal can mute the ongoing difficulty and frustration of President Aquino and his military in containing the Muslim unrest in Mindanao. In the same way that President Aquino uses favourable ratings of his administration despite the failure of an increased economic performance, like a spike in investor confidence when this has not been translated in an increase in employment and reduction in poverty.

 

The conduct of the investigation of the PDAF scandal has also a bearing on the political motivation of the government to prosecute its detractors. Parallel investigations likewise add to the confusion, such as the Office of Ombudsman conducting a review of the complaint, the Department of Justice continuing to forage additional evidence so it can add more names in the list of the accused, or the Senate convening a Blue Ribbon committee for its own investigation of the scandal.

 

The trial of the respondents, of course, would be the biggest indicator of whether the accused are being politically prosecuted. But we don’t know yet if this case would see the light of day. The Department of Justice seems to be conducting the case in the press, so the public is becoming more anxious to see a public lynching. When mainstream newspapers and the social media attempt to build public sympathy or support the charges brought, the stronger the indication of a politically motivated prosecution.

 

It is entirely possible both that the accused legislators are guilty of the crime of plunder and that the prosecution is politically motivated. But whether the prosecution is politically motivated is something we can separate from the question of guilt or innocence of the accused. With its sweeping mantra of daang matuwid, everyone in government could be found guilty of plunder and other forms of bribery. And when the prosecutor is out to get the accused as part of a political agenda, the act of prosecution is an assault on democratic institutions.

 

The human rights lawyer Scott Horton, in a 2008 article in Harper’s Magazine, wrote about Andrei Januaryevich Vyshinsky, Stalin’s prosecutor, who is best known for his use of prosecution as a political tool. Vyshinsky used the criminal justice system to destroy Stalin’s enemies. He pioneered the notion of the “show trial” in which the defendant would be brought before the world as a broken and hollow man, confessing his crimes like a one act in a longer play in which his crimes would be staged before the world. Vyshinsky would not only eliminate the accused, but even destroy his memory, limiting the likelihood that an opposition group might form around him.

 

At the rate the PDAF investigation is going, such a conclusion that Vyshinsky envisaged is not a far-fetched scenario.

Corruption takes a backseat

 

The arrest of former Philippine President Gloria Macapagal-Arroyo has caused an unnecessary public uproar, if not ambivalence. One side is almost ready to burn the former president at stake, declaring her guilty on all counts even without trial. While the rest call for slowing down the prosecution, reminding everyone that she is also entitled to a presumption of innocence.

But can a former head of state expect a fair public trial when it’s her political enemies who are in charge of the prosecution?

Former Philippine president Gloria Macapagal Arroyo is seen arriving on a
wheelchair at the Manila International Airport on Nov. 15, 2011. Photo by
 Noel Celis/AFPGetty Images. Click link to view "Gloria Arroyo charged with
 electoral sabotage,"  http://www.youtube.com/watch?v=fpBZC6MWJVM

Just a wild thought: Wouldn’t it have been easier if Arroyo were lynched by a mob after being overthrown? Wouldn’t that be neat? Like Muammar Gadaffi when he was lynched by a mob of Libyan rebels in front of multiple cell phone cameras while the event was broadcast within hours all over the world. Or pretty much like every unpopular leader from Caligula to Ceaușescu after being deposed from power.

Filipinos can’t be blamed if they cry for blood. For years in power, Mrs. Arroyo had been suspected of plundering the economy to enrich herself and her own family. Remember all the scandals that plagued her administration, to mention just a few: the overpriced North Rail Project involving a $400 million loan from China's Export-Import Bank, the National Broadband Network (NBN) deal between the Philippine government and China’s ZTE Corporation, the ZTE-Mt. Diwalwal mining contract, bribery of members of Congress amounting to half a million pesos each to members of Congress in exchange for the dismissal of impeachment complaints against her, the so-called “Hello Garci” scandal wherein the President was caught on tape while tampering with the results of the 2004 elections, the fertilizer funds scandal which personally benefited Arroyo and some key officials of her government, and human rights violations, extra-judicial killings, enforced disappearances and torture of individuals opposed to her administration. All these happened while the poor majority of the Filipino people wallowed in poverty and the misery it breeds.

As president, Mrs. Arroyo was accused of rigging the electoral process so she could freely cheat and ensure that the election results would keep her in power. Four times Congress tried to impeach her but all failed because she had the money and political power to silence and derail members of Congress from acting.

Now that charges were brought against the former president preventing her from leaving the country, some have criticized the action of government as hasty and without due process. The culprit is now in police custody, yet holding her in captivity is being peddled as wrong and in violation of her legal rights. What’s wrong with this picture?

Imagine if former strongman Ferdinand Marcos had been captured while fleeing Malacañang during the final hours of the EDSA People Power revolution. He would have suffered the same fate as Gadaffi and the people would be rejoicing. The lynching of Gaddafi is the new standard for the treatment of deposed despots and it will be doubtlessly imitated by others.

The transgressions of the Marcos regime were no different from the Arroyo’s. Except this time, Gloria Arroyo has no more powerful friends left to save her. Any appearance of public lynching of Gloria Arroyo in the media is therefore understandable. Arroyo should be thankful that it is much more pacified and without the violent trappings of an actual mob lynching.

However, in spite of all the drama in prosecuting Gloria Arroyo for her past misdemeanour in office, the question that remains unanswered is, what happens now to President Noynoy Aquino’s crusade against graft and corruption?

Gloria Arroyo, the 'most hated' Phillipines leader since Marcos. Photo courtesy
of  The National Conversation. Click link to view "Unexplained wealth of President
 Gloria Arroyo," http://www.youtube.com/watch?v=NkiyuBD8_Ps

Arroyo has been charged with sabotaging the elections in 2007. Should Arroyo be convicted and sentenced to spend time in prison, her greater sin of economic plunder will remain unpunished. Is the Aquino government pursuing only the electoral charges against former President Arroyo because corruption is much more difficult to prove? That it would have a disrupting impact on government and a disincentive for future leaders? That it could possibly open a can of worms for the present administration when it leaves—that the successor regime might also consider prosecuting crimes of corruption and thus cause an endless cycle of partisan recriminations?

Everyone on the street will tell you unequivocally that all politicians steal, that no one is truly incorruptible. Not even President Noynoy Aquino. This is as much a way of life as it is the political culture in the country.

All past presidents have been dogged with rumours and allegations of corruption. No wonder, no president under the old Constitution was re-elected for a second term except for Ferdinand Marcos who knew how to wield and control the powers of the presidency for his own benefit. Every corrupt president did not merit re-election. There was no need for prosecution, the people could always boot out the incumbent every election. Thus, the presidency was a continuously revolving door, and corruption in government became part of the institution of the presidency.

With the present one-term limit for the president, this now appears too long for a corrupt president or for an ineffective leader. This is why many still favour the old system, a perpetual revolving door—a new president every four years. But Ferdinand Marcos broke the rule, except he did it differently. Marcos was also a dictator and he imposed his will on the people. Why he was never prosecuted in a Philippine court—for corruption, abuses, and all his crimes against the Filipino people—only shows the lingering influence of his regime over the country’s political and legal system. Consider, too, that members of his family and his former political allies are back in political power without any blemish of culpability for their role during the Marcos oppressive regime.

Former Philippine dictator Ferdinand Marcos. Courtesy of  wikicommons.
 Click link to view "Martial Law in the Philippines,  1972-1986,"
  http://www.youtube.com/watch?v=uIpyvO4c9lU&feature=fvwrel.

It seems easier for the present government to prosecute Gloria Arroyo for an electoral offence than corruption. There’s no need to disclose Arroyo’s network of irregular financial transactions that may also lead to the identification of people whom the government doesn’t want to embarrass, like foreign governments, financial institutions and contractors, or local businessmen and politicians. The government doesn’t have to inquire about the unexplained wealth of officials who run the military establishment who could be beneficiaries of Arroyo’s corruption, the very same people whose loyalty the present government needs to support and back up its administration. Proving corruption is a very complicated matter and may entail a long time to finish, perhaps even beyond the term of the present administration.

Noynoy Aquino wants Gloria Arroyo in jail before Christmas. This he can easily accomplish by sticking to the electoral offences against Arroyo. What easier accomplishment is there than putting a former president in prison for sabotaging the electoral process to ensure that she could stay in power?

Gloria Arroyo’s family and its minions would probably appease and take her conviction with less rancour. Their ill-gotten wealth remains in their hands, and there’s no urgent need to ask for presidential pardon. Politicians and businessmen who benefited from Arroyo’s corruption remain untouched or undisclosed, so the best thing for them is to simply keep quiet.

President Noynoy Aquino will always be loved by the Filipino people for putting in prison the person they hated most. Insofar as corruption is concerned, every person on the street will continue to talk about it. Ironically, the culture of corruption remains unscathed, and no sitting or former president will ever be put to trial on account of it.

Prosecuting corrupt former presidents

Former Philippine President Gloria Macapagal-Arroyo behind bars
on charges of electoral fraud filed by the Department of Justice and
the Commission on Elections.

Prosecuting sitting presidents or former ones could be the biggest challenge that faces democracy. 

It is much easier for an illegitimate government, one that has been installed by a military coup for example, because of the risk posed by a former head of state. Illegitimate governments often consider their predecessors as threats. This is also true in cases where governments had been toppled by a rebellion. A recent example is Egypt where its president, Hosni Mubarak, was arrested and brought to trial after thousands of protesters brought down the government. The death of Muammar Gadaffi in the hands of rebels and protesters pre-empted his prosecution and public trial for crimes against the Libyan people.

With the fall of Hosni Mubarak, center, a military council led by Field Marshal
 Mohamed Hussein Tantawi, left, has run Egypt. Photo courtesy of NYTimes and
 Aladin Abdel Naby/Reuters.Click link to view "Opening moments from Mubarak's
 trial," http://www.youtube.com/watch?v=ih-NHecFy94

But it’s never easy in a democracy, as oftentimes it’s messy, to bring a sitting or former president to public trial for crimes or offences against the state. Ordinarily, a sitting president is constitutionally immune from ordinary prosecution but is not the moment he or she leaves office, an outcome that can be obviously hastened by impeachment.

The issue is not the president personally but the institution of the presidency. Former U.S. President Bill Clinton was impeached by Congress but he survived and finished his term of office. Philippine former president Joseph Estrada was not as lucky. Although not impeached, Estrada was found guilty by the Sandiganbayan for committing economic plunder and eventually pardoned by his successor, Gloria Macapagal-Arroyo. Arroyo, who stepped down from the presidency in 2010, is now the defendant in a suit filed against her by the Philippines’ tandem of Department of Justice and Commission on Elections for alleged electoral fraud in 2007.

Other past presidents have been sued in court but these actions have never been successful. Augusto Pinochet is an example of how the prosecution of a former president might unfold. In 1998, the one-time dictator of Chile, then eighty-two years old, was seized in Britain on a Spanish warrant of arrest. Pinochet was charged with several crimes alleged to have been committed during his seventeen years in power—including torture, illegal detention, and forced disappearances. He was placed under house arrest in an English mansion while waiting for the outcome of several months of complex proceedings. The British determined that Pinochet was medically unfit to stand trial and returned him to Chile where he eventually died before he could get tried for his crimes.

But this peaceful process would be difficult to replicate with an American political figure. Unsuccessful attempts were made to sue former President George Bush and his vice-president, Dick Cheney, for waging an illegal war in Iraq and the illegal use of torture, including waterboarding. It would be likewise equally difficult to expect the United States to extradite former leaders who were granted political asylum in the country and regarded as friends of the American government. This probably explains why the Philippine government at that time did not exert serious efforts to have Ferdinand Marcos extradited so he could be tried for his crimes However, a civil suit against Marcos was filed in Honolulu for damages by victims of his martial law regime but the judgment against him has not been enforced to date.

There are other recent examples of suits brought against former heads of states. Former Brazilian President Luiz Inacio Lula da Silva has been sued by federal prosecutors in Brazil, charging him of misusing public funds in sending more than 10 million letters to retirees telling them about low-interest payroll loans from Banco AMG.

Family members and survivors of the 1997 attack in the Mexican state of Chiapas that killed 45 indigenous people sued former President Ernesto Zedillo for his alleged complicity in the massacre.

The United Church of Christ in the Philippines has sued former Philippine President Gloria Arroyo on charges that security forces under her control killed and tortured at least six members of the church.

Former Philippine President Joseph Estrada, together with Senator Panfilo Lacson and others were sued before a California Court for compensatory and punitive damages for the killing of Salvador “Bubby” Dacer and his driver Emmanuel Corbito in November 2000, under the Alien Tort Claims Act and Torture Victim Protection Act, both American statutes.

A Chilean court has allowed a lawsuit to proceed against the former president, Michelle Bachelet, over failings in Chile's tsunami warning system during the 2010 earthquake. Victims of the tsunami have accused Ms. Bachelet and other senior officials of “denial of assistance” over the tsunami which struck after the 8.8 magnitude earthquake.

The relatives of 11 French engineers killed in a 2002 bombing in Pakistan have brought charges against former President Jacques Chirac, claiming he ignored risks of reprisals against French personnel by stopping bribe payments to Pakistani officials.

Trivial and serious suits can be brought against former presidents but the likelihood of their success is very small. When Barack Obama was asked in August 2008 during the presidential campaign if he would seek to prosecute officials of the Bush administration for the illegal use of torture during the Iraqi war, he offered a very guarded response. He said, “I would not want my first term consumed by what was perceived on the part of the Republicans as partisan witch-hunt, because I think we’ve got too many problems we’ve got to solve.” His adviser similarly warned that pursuing prosecutions of Bush administration officials would generate a cycle of partisan recriminations. This is a plausible explanation why prosecuting former presidents has never been commonly resorted to.

But creating a precedent and thereby opening a floodgate of future suits against former presidents was not foremost in the mind of Philippine President Benigno Aquino III when he ordered the laying of charges against his predecessor. Upon succeeding Gloria Arroyo as president of the republic, Noynoy Aquino’s first major decision in office was to create a Truth Commission that would investigate and prosecute Gloria Arroyo for corruption during her years in power. That was his campaign promise and he wanted to keep his word.

However, Noynoy Aquino was tripped by the Supreme Court which declared his Truth Commission unconstitutional on the ground that it violated Ms. Arroyo’ s right to equal protection under the Constitution. It took Noynoy Aquino and his administration more than 500 days to regroup and devise another scheme to go after Arroyo, this time charging her of election fraud. The Supreme Court might as well rebuff Noynoy Aquino again for hastily pulling out an arrest warrant against Arroyo that contravened a previous order by the High Court to vacate a temporary order restraining Arroyo from leaving the country for medical consultation abroad.

Former Philippine President Gloria Macapagal Arroyo is seen with a neck brace
 as she  arrives on a wheelchair for a flight to Hong Kong at the Ninoy Aquino
 International  Airport where she was eventually  prevented from leaving. Click
link to view "Arrest warrant issued for former Philippine President Gloria Arroyo,"
http://www.youtube.com/watch?v=QbhAXu-o9z8

This is looking more and more like Noynoy Aquino’s personal mission to prosecute Gloria Arroyo than anything else. That he was willing to sidestep the legal niceties is proof of his rabid determination to accomplish his election promise, although not in pursuit of those guilty of corruption. But then, electoral fraud might as well be on the same plane as corruption, because this was equally an abuse of power in order to stay in power.

No one is above the law, and that applies to President Noynoy Aquino, his predecessor former President Gloria Arroyo, and to their legal minions. Arroyo’s day of reckoning could have been hastened if only Congress decided to impeach and remove her on the same charges of corruption and electoral fraud while she was still in office.

Once out of office, former President Arroyo is still accountable to law and to the country. The question though is how, when, and by whom.

After Richard Nixon resigned from the U.S. presidency following the Watergate scandal, President Gerald Ford pardoned Nixon for all actions committed during his presidency. Ford did not find it beneficial to the country that a former president be brought to trial. To President Ford, trying Nixon was less important than preserving the tranquility of the nation by avoiding a divisive prosecution.

Noynoy Aquino does not have this kind of dilemma. He has the popular support of the Filipino people. All he has to do—and this means his own legal advisers—is to ensure that Arroyo’s prosecution is within the bounds of the law. President Aquino’s actions, so far, appear capricious and merely vindictive, thus he could be wasting the enormous political capital the people have invested by electing him as president.

In a democracy, the decision to prosecute a former head of state is ultimately a balancing act between the retributive and utilitarian functions of the law. The retributive function assumes that the law should be applied equally, regardless of rank and privilege. When presidents engage in misconduct and violate the law, they betray public trust. They place their office in disrepute and invite disrespect of the law. Anyone who steals or abuses public funds deserves to be arrested and prosecuted. And there should be no impunity because no one is above the law.

On the other hand, there is nothing to be gained politically in prosecuting a former president. The prosecution of one head of state may lead to divisiveness, and may dilute the quality of politicians if succeeding leaders fear prosecution for actions taken while serving the country.

There appears to be a huge public outrage over Gloria Arroyo’s abuse of power in plundering the country’s economy and in keeping her in power by sabotaging the electoral process. It will serve the country well, and create an effective institutional deterrent for future politicians, to prosecute Gloria Arroyo for her egregious violations of the law. If only President Noynoy Aquino could stay within the parameters of the law and not let vindictiveness or vengefulness become the principal driving force for his actions.