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.

Plunderers’ row

 

 

Anyone with an Internet connection can check the Philippine Center for Investigative Journalism (PCIJ) website to find out if his or her favourite or most detested public official, whether a police chief or mayor, governor or cabinet member, has faced charges of graft and corruption. The PCIJ website has accumulated a database of Sandiganbayan cases against Philippine public officials from 1979 to 2012.

 

It’s no surprise if you find in the PCIJ database the three highest ranking government officials ever charged with plunder: former presidents Ferdinand Marcos, Joseph Estrada and Gloria Arroyo-Macapagal.  

Protests against corruption in government heat up as Napoles, 37 others face
plunder, graft raps. Click link to view press conference of the Dept. of Justice,
http://newsinfo.inquirer.net/488567/napoles-3-senators-face-plunder-raps-over-pork-barrel-scam

Ferdinand Marcos had been implicated in several cases involving bribery and other forms of corruption in government for all the years he had ruled the country with an iron fist. Whether by a stroke of luck or aggressive lawyering by his defence team, the Sandiganbayan simply failed to find any liability against Marcos.

 

Take the case of Herminio Disini, a Marcos crony who was found by the Sandiganbayan in 2012 guilty for receiving bribes in connection with the Bataan Nuclear Power Plant (BNPP). Disini was ordered to return to the government $50.6 million in commissions he received for helping two foreign firms win the BNPP contract. While the Sandiganbayan found Marcos to have had a “personal financial interest” in the transaction, the court could not find evidence to show that either Marcos or his wife, Imelda, received any part of the commissions from the BNPP deal.

 

Disini is still a free man and rumoured to be living somewhere in Europe in a castle he bought for himself. Marcos died a long time ago but his family is back in political power. Although there is no statute of limitation in recovering the Marcos’ ill-gotten wealth, the government has simply not done anything as if this has been a forgotten issue.

 

Everyone knows what happened to Joseph Estrada. Two years into his presidency, he was charged with plunder and convicted by the Sandiganbayan. Estrada was sentenced to life imprisonment or reclusion perpetua until he was pardoned by his successor, Gloria Macapagal-Arroyo. Arroyo, who herself would be charged with plunder after her presidency and more than two years into her supposed trial by the Sandiganbayan, remains in hospital custody while eagerly waiting for her day in court. Estrada has been elected mayor of Manila while Arroyo has been re-elected as her district’s representative in Congress.

 

The Sandiganbayan as an anti-graft court was established during the term of the dictator Marcos, apparently not a serious feature of his repressive government, or to be expected to become an effective arm of the government in combating corruption of public service employees. According to Senator Frank Drilon, the current Senate President, there are at least 2,600 graft cases still pending before Sandiganbayan, which is only able to resolve less than 100 cases yearly.

 

Overwhelmed with an enormous number of unresolved cases, how then can we expect the Sandiganbayan to speed up the much-awaited trial of the senators and members of Congress who were named in the complaint filed by the Department of Justice in the recent pork barrel scam? Judging by the Sandiganbayan’s appalling inefficiency, there is virtually no hope for the public for a swift and early dispensation of justice for the nation’s collective indignation. What a waste for the people’s hue and cry?

 

The unpleasant track record of the Sandiganbayan merely confirms that morality is rigged in favour of the powerful. The mighty that have stood up in trial for their high misdemeanours against the nation are either pardoned or simply locked up for the moment until everyone has learned to forget, even perhaps, to forgive. Or better yet, waiting for the right moment for all their charges to be swept under the rug.

 

Public consciousness has been aroused about the evils of corruption in government. The people are now getting more and more exposed to the various camouflages that conceal corruption that goes unrecognized. But it is the government and the powers it yields that now prove weak in wrestling with this conundrum. Or maybe, the government and our current crop of leaders are not serious enough, like their predecessors, in combing out corruption because if they were, they would similarly be the object of public lynching. Not by the organized opposition but because their own hands are also dirty and the public knows it.

 

This is clearly evident in the current complaint filed by the Department of Justice against 38 defendants—three senators, some members of Congress, and others allegedly involved in scamming the Priority Development Assistance Fund (PDAF). All lawmakers named in the complaint are known stalwarts of Noynoy Aquino’s opposition, which could rightfully infer bias and political motivation to stymie the potential rivals of the current government’s anointed successors.

 

The information contained in the complaint is very shoddy and alludes to pieces of evidence yet to be gathered. It smacks of a fishing expedition, a careless preparation just to allay a restive public that is bent on holding more and bigger protests against the government’s feeble response to the nation’s outcry.

 

According to the special report of the Commission on Audit (COA) for the years 2007 to 2009, nongovernmental organizations (NGOs) have been violating the use of funds under PDAF without an appropriation law or ordinance earmarking such amounts for their projects. NGOs were simply endorsed by legislators, thus funds were allowed to be transferred to NGOs whose status and existence turned out to be questionable, such as those run or incorporated by Janet Napoles, the alleged pork barrel queen.

 

It is also doubtful that the named defendants in the complaint were the only ones involved in the PDAF fiasco. The current president who was a congressman for nine years and a senator for three years before being elected president would certainly have received his share of PDAF allocations, whether through his own network of supporters or NGOs. Besides, as president, Noynoy Aquino has the discretionary spending power without audit and oversight which could tap into almost P1.5 trillion of revenues from the Malampaya fund and PAGCOR operations through regulation of amusements and gaming facilities. PDAF makes up only about 1.3 percent of the yearly national budget. It means that there are other potential sources for massive corruption that remain untouched if we simply focus on the PDAF scam.

 

But then, all the president’s loyal men claim Noynoy Aquino is incorruptible, honest and super clean—therefore, he should be spared of the people’s collective indignation against corruption in government. Of course.

 

In the same COA report, it also identified 54 PDAF-funded projects which were constructed on private properties belonging to members of Congress not named in the complaint. Obviously, these members of Congress are affiliated with the president’s party or known to be supportive of the current administration. Such use of funds, as pointed out by COA, is prohibited. According to law, public funds must be used to promote public welfare or purposes, and not individual advantage.

 

In the grand scheme of public corruption, we might as well declare all members of Congress in both houses, and the office of the president, or even the entire bureaucracy, as a big plunderers’ row. But as official morality seems to reside in the hands of the powerful, the sitting president and his party and supporters control the government. They have at their disposal all agencies and offices, including the media, to prosecute and persecute those they have deemed as enemies of the state.

 

Janet Napoles and the PDAF scam have become our national morality play. From the perspective of institutionalized corruption, this entire mess, according to the Center for People Empowerment in Governance (CenPEG), “dramatizes only one aspect of a long entrenched tradition of lack of accountability by politicians and a culture of impunity enjoyed by the powerful.”