Wednesday, September 25, 2013

Lawsuit or Lusot?

A number of powerful people in the Philippines are getting prepared to deal with a lawsuit already filed against them by the NBI (National Bureau of Investigation) and the DOJ (Department of Justice) before the Ombudsman.

These are men, no longer boys, who can take care of themselves and actually knew what they were doing.  They are also experienced, bright and smart men possessed of substantial and adequate resources to hire brilliant lawyers to give them the best defense that money can buy.  

So, I told my barber and his colleagues at the barbershop that we expect and assume that their lawyers will explore all the avenues allowed by law to defend them.  No need to take pity on them.  Instead, we know that both sides would try their best to present their interpretation of the facts, which hopingly would bring out the whole truth. With it, justice should prevail!


There is one lusot that may be considered as a defense for the lawmakers.  One defense lawyer (de la Cruz) is claiming, “There is no document that links Senator Enrile to plunder. He didn’t sign any document that indicated he was allocating his funds to NGOs.” He says that his Chief of Staff for several years Gigi Reyes was not authorized to do so on Enrile’s behalf.

“Lusot ba?” my barber asked.

Senator Enrile and COS Gigi Reyes (ABS-CBN)
Not necessarily.  The crime is malversation of public funds; bribery, and other graft charges upgraded to plunder because of the aggregate amount involved (more than P171 million) and of the combination or series of criminal acts committed that established a pattern.  

The voluminous evidence (17 boxes - testimonial and documentary) provided by the whistleblowers who claim to have direct knowledge, and gathered by the NBI and the DOJ, seem to prove that the crimes alleged were committed.

The issue is whether the criminal responsibility should stop at the Chief of Staff or subordinate level especially if lawmakers like Enrile will claim ignorance of the criminal conspiracy.

In crimes like plunder or malversation of public funds, there is still presumption of guilt if it could be shown that the accused public officer consented, through abandonment or negligence, or permitted any other person to take such public funds, or property, wholly or partially.  

Senators and Congressmen are granted the power to allocate public funds earmarked precisely for public welfare.  Correspondingly, they also have the responsibility and public duty to safeguard the funds from misappropriation, malversation, and misuse and worse, plunder.

Failure to carry out such public duty is negligence.  In Criminal law, it is omission constituting a guilty act.  Claiming not to have authorized your Chief of Staff or subordinate but knowing or should have known that the prohibited or unauthorized acts were happening not just once but several times and for a number of years will not absolve the lawmaker from possible criminal liability.

Furthermore, under the principle of superior responsibility as recognized under the Rome Statute of the International Criminal Court (ICC) to which the Philippines is a signatory, the superior is equally responsible for the criminal acts of his subordinates provided that 3 elements are present.  First, that there is a defined superior-subordinate relationship.  Second, that the superior knew or should have known about the alleged crime being committed.  Third, that the superior did not prevent or punish the subordinate for committing the illegal acts.

The doctrine with the 3 elements being present is known as "an omission mode of individual criminal liability," Decisions enunciating the doctrine in the international courts apply to both military and civilian cases.

Most Filipinos find it incredible for Enrile not to have authorized his most trusted Chief of Staff Gigi Reyes and loyal subordinate for 25 years.  But assuming but not necessarily admitting that Reyes did not have the authorization from Enrile, the latter could still be liable for not safeguarding public funds through negligence and omission as discussed above.  

There are sufficient instances over the years showing that Gigi Reyes acted for and on behalf of Senator Enrile.  I suspect that her authority were mostly unwritten but readily accepted.  There were probably written authorizations as legally required.  If Reyes’ act was not authorized, it would have been ratified later on or she should have been prohibited from dealing with similar transactions subsequently.  This did not seem to have happened at least during the dates concerned when the crimes were allegedly committed.

It looks like no LUSOT!  LAWSUIT it will be!  PROSECUTE it must be!

To the witnesses, the NBI, the DOJ, the Ombudsman, and the Courts – A TRIBUTE if they EXECUTE!  

Take it from my barber!

Wednesday, September 18, 2013

The EYES Have It

My barber asked for an update on the Pork Barrel Scam.

It is now in the hands of the Ombudsman.  Based on the findings of the NBI (National Bureau of Investigation) and the DOJ (Department of Justice), the crimes of plunder, malversation, bribery, and other graft and corrupt practices were committed by several lawmakers led by Senators Juan Ponce Enrile, Ramon Revilla, Jr., and Jinggoy Ejercito Estrada.
The crimes were allegedly committed when the said lawmakers “received from Napoles kickbacks amounting to 40-60% of the cash value of the project cost for every project endorsed by the lawmaker to a Napoles NGO. These kickbacks are the lawmaker’s bribe for giving undue favor to a Napoles scheme designed to misuse and misappropriate public funds entrusted to him, and which he appropriates instead for private gain rather than the public benefit intended by law.”

The NBI and DOJ claim that the “acts constituting the offenses were performed willfully, deliberately, and maliciously with the legislators knowing fully well that their act of receiving the large amounts of cash from Napoles for their private use resulted in the corresponding diminution of the funds actually expended for the public purpose intended by law.

Enrile, Revilla, Estrada and other lawmakers allegedly took advantage of and abused their official position and authority as Senators and Congressmen of the Republic, thereby unjustly enriching themselves at the expense and to the damage and prejudice of the people and the Republic.

There are 17 boxes of testimonial, documentary and other material evidence supporting the allegations of the NBI, DOJ, and the whistleblowers.  The Ombudsman will go over them and then conduct a preliminary investigation to decide whether to file the appropriate charges in court (Sandigan).

Napoles OS

As I gathered from the Executive Summary released by the NBI and DOJ, the OS (Operating Scheme) utilized by Napoles and the lawmakers went like this:

1.         Napoles and lawmaker agree:          
            (a) Lawmaker promises to designate Napoles’ NGOs as the recipients of his PDAF.
            (b) Napoles promises to give 40-60% of the cash value of the project as kickback.
2.         Lawmaker first submits a list of projects to the DBM.
3.         DBM issues a SARO (Special Allotment Release Order) to the lawmaker.
4.         Lawmaker endorses a selected NGO for the implementation agency.
5.         Implementing agency, without any public bidding, enters into an MOA (Memorandum of                           Agreement) with the NGO for the   implementation of the project.
6.         Documentation is drawn up and completed.
7.         DBM issues a Notice of Cash Allocation (NCA) to the implementing agency.
8.         Implementing agency receives NCA.
9.         Implementing agency issues a check to the Napoles NGO.
10.       JLN (Napoles NGO) employees deposit check.
11.       Cash withdrawn by employees.
12.       Cash delivered to Napoles.

Kickback Payments

  1. First payment (50%) in advance to the lawmaker upon submission of the project list to DBM. (See No. 2, Napoles OS)
  2. Second payment (50%) upon release of the SARO. (See No.3, Napoles)
  3. Chief-of-Staff of lawmaker or his representative who facilitates documents and follow ups with agencies for the lawmaker and Napoles gets 1-5% of the project cost
  4. Head of implementing agency gets 10%.
  5. 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.

The Napoles NGOs – What is WRONG?

  1. Incorporated through employees and other individuals associated with her such as relatives, house helps and drivers.  NGOs have interlocking incorporators, common auditors, and notaries public in their SEC documents.
  2. NGOs awarded by implementing agencies as endorsed by the lawmakers without corresponding appropriation law or public bidding – violation of government procurement rules.
  3. NGOs are not qualified to bid for government projects costing millions of pesos.
  4. MOA entered into by implementing agency and NGO deliberately disregards provisions on control and management of funds and monitoring of implementation that only proved convenient to the parties insofar as transparency and accountability are concerned.                                               
The EYES Have It

On the Napoles-Lawmaker Operating Scheme (OS), the following comments were gathered at the barbershop:

Barber No. 1 – “Both Napoles and the lawmakers kept their EYES on the prize (PORK).”
Barber No. 2 -  “This is why Napoles and the lawmakers saw EYE to EYE.”
Barber No. 3 -  “Napoles had her EYE on the PDAF while the lawmakers set their EYES on the                                            kickbacks.”
Barber No. 4 -  “Napoles and the lawmakers turned a blind EYE to the poor who are supposed to be the                            beneficiary.”
Barber No. 5 -  “Lawmakers had stars in their EYES when they received the first payment.”
Barber No. 6 -  “Napoles became the apple of the lawmakers’ EYES.”
Barber No. 7 -  “Lawmaker and/or staff only had EYES on the SARO because lawmaker receives second                            payment upon SARO’s release.”
Barber No. 8 -  “EYES pop out when final payment is received.”
Barber No. 9 -   “All EYES are open when Napoles’ NGO receives check from implementing agency.”
Barber No. 10 -  “Head of implementing agency gets 10% share for keeping an EYE on the project                                        funding.”
Barber No. 11 -  “JLN employees can’t believe their EYES depositing, withdrawing and delivering so                                 much cash.”

The above-mentioned cases filed by the NBI and DOJ compose the first batch of plunder, malversation, bribery, and other graft charges.  According to DOJ Secretary de Lima, more are coming not only based on the Napoles pork barrel scam but also on the findings of the Malampaya Fund.

The COA also has yet to investigate and release its findings on more than 70 other NGOs who were also used as illicit conduits to plunder the people’s money.  Of course, so far, we have been talking only of 2007-2009 PDAF misuse.  What about the misuse of the pork barrel of our lawmakers for the years 2012 to 2013?
Then, how about COA’s findings on the use of the Social Fund, Special Purpose Fund like the PAGCOR Fund, and the PCSO Fund?
In the words of former SC Chief Justice Reynato Puno, “The totality of these Social and Special Purpose Funds runs to trillions of pesos, hence, in comparison, the P10B we lost in the Napoles NGO’s will appear to be just petty cash.”
Filipinos should never “take their EYES off” this issue.  It should always be “in the public EYE.”

Thursday, September 12, 2013

PNoy, the Furies, the Angels, the Offensive Line, and the CORY Incarnates

The discussions in the barbershop were lively and entertaining. It started when someone asked if PNoy would be able to sustain his “kung walang corrupt, walang mahirap” (no corruption, no poverty) campaign considering the exposé of the Pork Barrel Scam that may involve even some of his political allies.
Someone said that he will because he would like to go down in history as one who paved the way toward reversing a culture of corruption in government and in our society.  
Another one said that he must resist any temptation to protect any plundering official, friend or foe alike but pursue the campaign more aggressively instead, for the sake of his martyred parents, CORY and NINOY.
PNoy and sisters Viel, Balsy, Pinky, and Kris
The most interesting observation that came up was the role and influence of the women surrounding PNoy.  First, is that of his sisters Maria Elena (Ballsy) Aquino-Cruz, Aurora Corazon (Pinky) Aquino-Abellada, Victoria Elisa (Viel) Aquino-Dee, and Kris Aquino.  All straight shooters, they make sure that PNoy never veers from the “Matuwid na Daan” (Straight Path) that he set forth.

Second, is that of his official family. Playing very significant roles in the battle against the Pork Barrel Scam, plunder and other graft and corruption charges are women.

Ombudsman Conchita Carpio Morales, COA Chair Grace Pulido-Tan, Justice Secretary Leila de Lima
Presidential Spokesman Edwin Lacierda calls Justice Secretary Leila de Lima, Ombudsman Conchita Carpio Morales, and Commission on Audit (COA) Chair Grace Pulido-Tan, “The Three Furies” – after the three Greek goddesses who were sent by the Gods to battle the evil forces.

Former SC Chief Justice Art Panganiban calls them PNoy’s Angels.  Added to Lacierda’s three as Angels is Internal Revenue Commissioner Kim Henares.  He describes them all as “gutsy ladies”.

In relation to the Pork Barrel Scam, Justice Panganiban says that they are called upon to “(1) identify, investigate, prosecute and penalize the scammers; (2) recover as much of the scammed public funds as possible; and (3) avoid a repetition of this mess.”

Ombudsman Morales, under Republic Act 6770, has the disciplinary authority to suspend and dismiss elective and appointive public officers.  She can also file criminal and civil actions against legislators.  Of course, among others, she can also file civil cases for the recovery of ill-gotten wealth.

We already know the roles of de Lima’s DOJ as the prosecution arm and of the National Bureau of Investigation, an agency under DOJ; Chair Tan’s COA whose audit report started the exposé; and Commissioner Henares’ BIR in investigating the criminal and tax liabilities of the scammers.

The Offensive Line

In an earlier column, I described the “Angels” and “Furies” as an all-woman “offensive line” for PNoy.  I likened them to the Washington Redskins’ offensive line that ironically called themselves “Redskins Hogs”. With them the Redskins won 3 Super Bowls in one decade.  PNoy’s “offensive line” is composed of women with strong moral conviction, with “balls” and, as Ninoy would describe them, “with the heart of a lion.”

In the same article I added SEC Chair Teresa Herbosa whose role in determining fake NGOs and Corporate contractors with direct or indirect affiliation with Napoles and/or the plundering lawmakers.  The use of “piercing the corporate veil” comes in handy.

Former Chief Justice Panganiban also recognizes the role of the Anti-Money Laundering Council (AMLC) and the PCGG in PNoy’s anti-corruption campaign.  

BIR Commissioner Kim Henares, SEC Chair Teresa Herbosa, AMLC Exe. Director Julia Bacay Abad
AMLC is empowered to identify, freeze, confiscate, and recover proceeds of corruption.  SEC Chair Teresa Herbosa is a member of the council.  But its Executive Director is another smart and daring lady, Atty. Julia C. Bacay-Abad who is concurrently a Deputy Governor of the Central Bank.

PCGG is mandated not only to recover the ill-gotten wealth of former President Ferdinand Marcos and his cronies but also to investigate non-Marcos graft and corruption cases like the pork barrel scam.  In fact, it has extraordinary powers that include holding persons in contempt, taking over business enterprises provisionally, and conducting preliminary investigations.  One of its Commissioners is another smart and gutsy lady named Ma. Ngina Teresa “Maita” V. Chan-Gonzaga who graduated as valedictorian from Ateneo Law School; a 4th placer in the bar exams; and obtained a Magister Juris from Oxford University.

Congress is the centerpiece if we talk of budget/spending reforms.  In the House, PNoy could rely on neophyte Rep. Leni Robredo to take the lead.  In the Senate, Freshman Senator Grace Poe could become a leader in the straight path campaign.  Suspension or even expulsion in Congress can be resorted to for bad behavior.

Audit Commissioners Heidi Mendoza and Rowena Guanzon of COA are proven to be great team partners and reinforcements in the battle.

While the campaign is mostly focused on fighting corruption through justice via the above-mentioned lady warriors, there are other fronts where equally smart, courageous and honest women in PNoy’s official family do contribute in these trying times.

In social welfare and poverty alleviation, PNoy has Secretary Dinky Soliman. Advising him in the peace process is Secretary Teresita Deles.  In the Labor front, he has Labor Secretary Rosalinda D. Baldoz and dealing with Filipinos overseas is CFO Commissioner Imelda Nicolas.  In higher education PNoy can always rely on Secretary Patricia Licuanan.

Of course, PNoy always feels the presence of Presidential Deputy Spokesperson Abigail Valte and that of Chief of Protocol and Presidential Assistant on Foreign Affairs Celia Ann “Cookie” Feria in Malacañang Palace.

Judicial and Electoral reforms are necessary for a just, fair, and free democratic society.  PNoy’s appointment of Chief Justice Ma. Lourdes Sereno and COMELEC Commissioner Grace Padaca would greatly help accomplish the needed reforms.

I am sure that there are thousands of other women in the bureaucracy who silently and without fanfare follow PNoy’s lead and his hopes for ”matuwid na daan” governance.

Somebody also mentioned some nuns and ex-nuns who are within PNoy’s circle who also give him unsolicited advice.

This prompted one of the participants at the barbershop who has been quiet throughout to suddenly speak up to add a new name to all these women helping, influencing, and bravely taking up the cudgels for PNoy.

CORY Incarnates!