Gardeners look at the complexity of a simple story
In sum, so far: what the constitutionally tasked Commission on Audit criminally neglected to expose and oppose became a megaton bomb that one whistle blower accidentally exploded. The explosion was so big that it almost led to an insurrectionary situation in the Edsa tradition.
The hard-headedness of Marcos in ’86 and Estrada in ’01 led to their downfall. Aquino in 2013 knew the value of retreat enough to avoid his predecessors’ fate. The PNoy braggadocio is one thing; his realism is another. Thus he humbly ate his fighting words when it became clear that a million marchers would not back down. Many of those faces he had seen before, many times before, on his side. This time, whose side were they on?
Earlier in his watch he had doubled the volumes of pork to have the wherewithal to impeach the Head of the Judiciary and domesticate the Legislature. This was not in most people’s minds at this time; he was PNoy, son of Ninoy and Cory. Therefore, most people uttered, “you better believe it – the boy is clean.”
Some thought the perfect time for him to change his mind about the pork issue would be after the Luneta massing of determined people. They underestimated his fear. He was not about to wait for something that might be too late. So, in the widening cleavage between government and people, he announced two days before the Luneta Million that he would always jump to the people’s side. Therefore, effective immediately he chose at last to be against pork.
The story, however, refused to die. People were so mad they could not take it anymore. They were mad that the taxes they paid, voluntarily and otherwise, ended up not in government revenues for public service duly accounted for but in the private pockets of their legislators with the neat connivance of the executive agencies and departments.
At Luneta, despite the earlier assurances by the President that he would bring the porcine era to an end, the middle classes did not relent; they came out in big self-organized numbers to register their displeasure in multi-festive ways.
from gmanetwork.com
The upper-middle, the middle-middle and lower-middle classes united against pork, thanks to a newly-found focus. These are the sectors who felt so insulted and pained that they were raring to act – but how? And for the first time in three years, they were not about to place their absolute trust in any President, including this one, who continued to oppose the Freedom of Information bill, and tried to convince people that pork was not all that bad (for did it have no advantages at all?).
Some pundits said that this too would pass – normally after two months. Modern communications technology applying age-old principles of psychology could always be used to lull the majority populace to forgetfulness.
You may be able to walk and chew gum at the same time but in Gestalt terms you can’t look at the vase and the two ladies’ faces at the same time. Count, then, for instance, on Mindanao problems and election fever (barangay in another month’s time?) to dissipate the focus of the moment on pork – a focus that had, if sustained, the capacity for generating people power,.
But, otherwise, what burning issues of the past, including the recent past, all unresolved, easily comes to the popular mind? The answer is “hardly any.” Less than two decades before, the banner headline of one newspaper talked about Congress kickbacks while another headline on top of it talked about the MNLF occupying four more towns in Zamboanga. This was in1996. Guess how many remember those headlines on Congress kickbacks? The answer is, “No one, my friend, no one.”
True enough, this time again, with even worse Congress kickbacks hugging the banner headlines more loudly, the MNLF seemed quite ready to oblige – and oblige they did, complete with attacks, hostages, soldiers and rebels wounded and killed. For weeks before that they had been staging massive non-violent rallies in various cities of Mindanao that were simply ignored by both government and media. Then they attacked, for what more could they do – go home with their tails behind them?
But was it going to be different this time in terms of people’s focus and attention? A bit different, perhaps, for the peoples of Luzon and the Visayas seemed to be saying, “Let a civil war rage on in Mindanao. We will not be distracted from the Napoles show. Let them move on with the ‘Moro-Moro.’ The real Moro struggle is a 400-year staple. We’ll get back to it at the proper time.”
Revolutionary Impatience v. Rule of Law and Due Process of Law
The people, in fact, seemed to be in a revolutionary mood. They just didn’t know it. But when asked the following question, “PDAF [Pork Barrel] scam: Return the money and go scot-free?” Yahoo Philippines pollsters got the following answers –
•“Yes, as long as people’s money is back.” 8%
•“No – We want ‘scammers’ in jail [now].” 75%
•“Let due process take place.” 17%; yes, only 17% expressly wanted to ensure the need for due process.
Had people forgotten? Or were they saying: because justice delayed is justice denied we might as well throw due process out the window. Their 1986 insurrection resulted in their 1987 Constitution which quite explicitly intoned: NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED EQUAL PROTECTION OF THE LAWS.
In less incited times we liked to recite that “Law should govern”. This implies that every citizen is subject to the law, in contrast to the idea that the ruler or a member of the ruling group is above the law, for example by divine right or by a neo-colonial and oligarchic culture of impunity.
At the heart of the rule of law is the due process of law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions. Most Filipino students know this, or should. The Magna Charta, an agreement signed in 1215 that defined the rights of English subjects against the king, is but an early example of a constitutional guarantee of due process.
Without due process the individual human being has absolutely no protection – not only against individual tyrants but also against mob rule created by both age-old prejudices and the technologies of modern media that can easily manipulate group opinions, emotions and actions. Pity our courts of justice whenever the court of public opinion has taken cognizance of any issue. They can only do their job with extreme difficulty, with unusual perspicacity and tons of courage.
The human species needs due process as it is the most insane species on planet Earth; it is the only species that would-could-and-did murder millions upon millions of its members as in the past century alone for the dubious promise of a “better deal”…religious, communist, national socialist, what have you.
Due process can be substantive as when dealing with issues like Freedom of Speech and privacy. Or it can be procedural as when concerned with the right to adequate notice of a lawsuit, the right to be present during testimony, the right to be free from unreasonable searches and seizures; to be free from Double Jeopardy, or being tried more than once for the same crime; to be free from Self-Incrimination, or testifying against oneself; the right to be told of the crime being charged; the right to cross-examine witnesses; the right to be represented by an attorney; the right to be free from Cruel and Unusual Punishment; and the right to demand that the state prove any criminal charges Beyond Reasonable Doubt.
Today, three of every four Filipinos want all this suspended somehow. Even the inimitable Archbishop Oscar Cruz, a Doctor of Laws in his own right, is not above angry Juan de la Cruz in saying that the current contexts justify the presumption of guilt rather than the presumption of innocence among the accused. This is unbelievable or he might have been joking but such is our collective impatience now.
What this gardener said much, much earlier regarding the Napoles show being like the Stonehill case of the mid-1960s indeed became more pointed. The question at that time was not “who is involved?” but, rather, “who is not involved?” Macapagal’s “solution” then was to fire his Justice Secretary Diokno and deport Stonehill. Absent these two most important dramatis personae, there was no more truth to pursue. Today’s theatre of the absurd is not that simple. It is hard enough to be a defendant but to be a prosecutor is not that easy either.
The Government Accuses
After Luneta, the popular pressure on government to “put them all in jail” reached feverish levels. The Department of Justice had to come up with something. It did: an NBI (National Bureau of Investigation) Report based on interviews with the whistle-blowers and the paper evidence on hand, literally truckloads of these, which they would now give to the Ombudsman to work on for fair indictment of the accused before the judicial Sandigan Bayan.
For that moment, the report was sufficient grist for the journalistic mills. The NBI claimed to have found sufficient evidence for the filing of complaints for plunder against five (5) lawmakers, and, as well, for malversation, direct bribery, and graft and corrupt practices against three (3) other lawmakers.
It also recommended to be charged in the complaints with the Ombudsman some of the lawmakers’ chiefs-of-staff or representatives, the heads and other officials of three implementing agencies, and several presidents of the NGOs set up by Napoles.
The senators found by the NBI Report to be involved in plunder were: Juan Ponce Enrile, Ramon Revilla, Jr., and Jose “Jinggoy” Ejercito Estrada.
Also involved in malversation, direct bribery, and other graft and corrupt practices per NBI were three other former Congressmen.
The prominent chiefs-of-staff or representatives of the lawmakers charged along with their superiors were: Atty. Jessica Lucila Reyes – COS, Enrile; Atty. Richard Cambe – Staff, Revilla; Ruby Tuason – Representative, Enrile/ Estrada and Pauline Labayen – Staff, Estrada.
The prominent Heads of Agencies charged for either plunder or malversation, bribery and graft and corrupt practices were: Alan Javellana – former President, National Agribusiness Corp. (NABCOR), Gondelina Amata – President, National Livelihood Development Corporation (NLDC), Antonio Ortiz – Former Director General (Technology Resource Corporation (TRC), Dennis Cunanan – Former Deputy Director General (now Director General), TRC, and Salvador Salacup – former President, ZNAC Rubber Estate Corporation (ZREC) (now Assistant Secretary Department of Agriculture)
There were six Napoles NGO Presidents also included in the Report to be charged for plunder as well as malversation.
Ten implementing agency officials and employees were also pinpointed by the Report as largely involved in plunder or malversation, bribery, or graft and corrupt practices by conspiracy.
And lastly, included in the complaints for plunder, malversation, and corruption of public officials was the owner of the JLN Group of Companies and so-called mastermind of the PDAF Scam operations: Janet Lim-Napoles.
MODUS OPERANDI
The NBI then published its own detailed picture of the modus operandi used by Napoles in cornering huge shares of the Lawmakers’ PDAF (pork barrel) allocation:
“The scheme starts with an agreement between Napoles and the Lawmaker where the latter promises to designate Napoles’ NGOs as the recipient of his PDAF fund for purposes of supposedly implementing projects authorized in the DBM menu of projects that can be financed with the use of the Lawmakers’ PDAF.
“In exchange for selecting the Napoles NGO, the Lawmaker in turn will receive from Napoles 40-60% of the cash value of the project as kickback. The Lawmaker first submits a list of projects to the DBM. The DBM in turn issues a SARO to the lawmaker who then endorses a selected Napoles NGO to the implementing agency. The implementing agency, in turn, without any public bidding, enters into a memorandum of agreement with the NGO for the implementation of the project. After all the documentation is completed, the DBM issues a Notice of Cash Allocation to the implementing agency. Upon receipt of the NCA, the implementing agency issues a check to the Napoles NGO which is deposited by JLN employees and the cash withdrawn and delivered to Napoles.
“Along the way, the kickback of the Lawmaker is already paid in advance, first upon submission of the project list to DBM, second upon release of the SARO. The chief-of-staff of the lawmaker or his representative who facilitates documents and follows up with agencies for the Lawmaker and Napoles also gets 1-5% of the project cost, also as kickback. Finally, Napoles gives 10% of the project cost to the head of the implementing agency, also as kickback. The rest is pocketed by Napoles after deducting the cost of overpriced supplies such as agricultural kits and training materials procured from a supplier enterprise which is owned by her, or the full remaining amount if there is no delivery at all.”
In peso amounts, the NBI Report said that the three senators plundered the following: Sen. Juan Ponce Enrile – P172,834,500; Sen. Ramon Revilla Jr.- P224,512,500 and Sen. Jinggoy Estrada – P183,793,750.
Ocean of Paper Evidence – Can the Ombudsman Swim?
The NBI recommended to the Office of the Ombudsman that the more than thirty respondents named in their transmittal letter be subjected to the corresponding preliminary investigation for purposes of filing the corresponding charges before the Sandiganbayan.
It, however, remains the prerogative of the Ombudsman after an evaluation of the complaints and their attachments “whether or not to conduct further fact-finding investigation on the complaints instead of immediately setting the same for preliminary investigation.”
The incumbent Ombudsman immediately announced on seeing the truckloads of “evidence” that she will need less than a year (anywhere from two to fifty-two weeks?) in order to finish this part of her job. The Orwellian lingo was no comfort to some observers. Or she can re-investigate some more. By then, she will submit the case to the Sandigan Bayan, which latter court has also one year to study the evidence.
People sighed, not in relief, but in realization that it was going to be a long march after all – maybe even leading nowhere but to oblivion. “Imagine,” said one Gardener, “One year at the office of the Ombudsman, one year of preliminary investigation at the Sandiganbayan, and one to two years of hearing proper add up to four years. By 2016 we will have a new President, and Vice-President. Who knows whether the new President or Vice President in 2016 might not be one of the accused? We have short memories, don’t we? That’s a given.” [TO BE CONTINUED]