Corona

Childish and inutile

Nine associate justices snubbed the oath-taking of Chief Justice Sereno. Seven were not around for her first flag ceremony. Presumably, those justices wanted to demonstrate their disappointment and disapproval over the president’s disregard for the principle of seniority and Sereno’s willingness to abide by it. But, as demonstrations go, it was childish and inutile.

Sereno will remain chief justice for the next 18 years unless she resigns or is impeached, becomes incapacitated or dies. So unless the protesting justices can force her to quit or convince Congress to impeach her or if somehow they can incapacitate or kill her without getting caught, they will just have to live with the fact that she will remain their chief and none of them will ever head the Court.

For those associate justices who can’t live with Sereno and the “trashing” of the principle of seniority, former senator Rene Saguisag offered a suggestion, “To dramatize a passion for the principle of seniority, resign! As was done by Supreme Court Justice Florentino Torres in 1920 and my Evidence teacher, Court of Appeals Justice Pompeyo Diaz in 1954.” That’s the way mature and principled people behave.

Justices claim they hold dearly the practice of appointing the most senior justice to succeed an outgoing chief but evidence proves that they do not hold it as dearly as Justices Torres and Diaz.

Justice Reynato Puno did not resign when Gloria Arroyo skipped him for Justice Artemio Panganiban. He thought about it, he said, but he didn’t do it. Maybe the promise that he would succeed Panganiban after a year’s wait was good enough for him. Justice Antonio Carpio did not resign when Gloria Arroyo appointed Justice Renato Corona who was his junior. Now if Carpio could live with Corona then surely he can live with Sereno. Or is it a case of “Not once but twice!”

So what are these infantile associate justices going to do other than undermine their chief? Are they going to show their true colors and confirm once and for all the reason why out of all the thousands of lawyers qualified to serve as justices of the Supreme Court Gloria Arroyo handpicked them? Think about it. all things being equal, why were they chosen by Gloria? Read their decisions for the definitive answer.

Those justices should resign if only to demonstrate their respect for tradition. And the institution. They are not irreplacable. They are not the last bulwark against undemocratic tendencies if in fact there are any. They are not the finest examples of justice. In fact, as Arroyo appointees, they proved themselves champions of executive orders that not only gagged witnesses from testifying about anomalies but also as facilitators of Gloria Arroyo’s attempt to escape justice.

If those brats in robes are unhappy and unwilling to work then they should leave and make way for those who are willing to work their asses off to reform the judiciary and undo all the damage they have wrought. That’s the honorable thing to do, Your Honors. Rest assured none of you will be missed.

Goodbye and don’t let the door hit your asses on the way out.

The Straight Path Needs to Turn a Corner

Enter through the narrow gate. For wide is the gate and broad is the road that leads to destruction, and many enter through it. But small is the gate and narrow the road that leads to life, and only a few find it.

-Matthew 7:13-14

I am well aware that any discussion about Daang Matuwid (the righteous path aka The Path) the anti-corruption slogan of the administration ends up becoming a theological debate. That is why I am prepared to tread on this ground quite carefully. The term itself is a reference to the Sermon on the Mount performed by Jesus in the gospel of Matthew which is quoted above.

Those who approve of this analogy will say that it is a secular version of that moral principle. Those who disapprove will counter with another idiom, the one that states the road to hell is paved with good intentions. They will point to the underspending of the government (which persists to this day) which was motivated by a desire to rid public works of corruption that led to the rapid slowdown in the rate of economic growth (which will persist as well over the next two years).

Adherents to The Path will rebut this with another slogan, kung walang corrupt, walang mahirap (if there is no corruption, there will be no poverty). For them, it is not just a moral imperative to fight corruption, it is an economic one. The Path sceptics will quote a genuine Filipino proverb, kung walang tiyaga, walang nilaga (if you don’t persevere, expect no reward). The attention they say of the government has been distracted by chasing its enemies that it has lost track of the people’s real priorities.

Latest polling has been quite illuminating. While the public still assigns a net positive approval rating to the president, a majority or a plurality of them do not think he has done a good job of creating jobs, improving wages and preventing the rising cost of living. The salience of these bread and butter issues exceeds that of his anti-corruption campaign. In explaining why his performance rating is still good, one polling executive surmised that this was probably because compared to his predecessor the president still manages to come off smelling sweeter.

This brings me to my central point, that while the current dispensation may be perceived as being qualitatively different from its precedents, its implementation of daang matuwid still fails the test of sustainability. This becomes apparent when we make use of external comparisons (looking at cases from other countries) instead of internal ones (looking at cases from within our country).

Forget about comparing us to the advanced countries in Scandinavia and the North Atlantic. These nations have built up systems of good governance over several centuries, during which time they grew economically and became wealthy (some would say at the expense of their former colonies).

Forget about comparing us to East Asia (Japan, South Korea, Taiwan) and other Confucian-states (Singapore, Hong Kong, Mainland China, Thailand, Vietnam). These nations have had centuries’ worth of tradition involving bureaucracies infused with a meritocratic ethos.

Instead, let us look to Indonesia, a country with whom we share common ethnic origins and similar colonial and contemporary history.

Different Paths

Emil Bolongaita is an authority on Indonesia’s experience having advised donors to the Yudhoyono government on providing assistance to its Corruption Eradication Commission or KPK. He also provided support to the Philippine Ombudsman under Simeon Marcelo during the early days of the Arroyo government. He literally wrote the book for the World Bank on anti-corruption policy in Asia.

(Just in the interests of full disclosure: I met Emil back in high school when we were both student leaders in Jesuit institutions, he at the collegiate level, and I at the secondary level. Our paths crossed again when he took up a teaching position at Carnegie Mellon University, where I had completed a Master’s degree. He then went on to take up a role at the ADB in Manila.)

In a paper, entitled Exception to the Rule? Why Indonesia’s Anti-Corruption Commission succeeds while others don’t – a comparison with the Philippines, published in August 2010 shortly after the Aquino government was inaugurated into office, Emil traces the similarities and differences between the two countries’ experience in fighting corruption. The following similarities are worth noting in the outset:

  • Firstly, both countries experienced major economic upheaval and the collapse of long-standing dictatorial regimes that were characterized by widespread corruption and crony capitalism (in the rankings of the most corrupt rulers of all time, Presidents Soeharto and Marcos are placed first and second respectively). This was followed by the formation of pluralistic democracies. Transition to democracy however has not eliminated the system of patronage and clientelism in both countries.
  • Secondly, following democratic restoration, agencies were (re)created to deal with corruption—the KPK in Indonesia and the Ombudsman in the Philippines. These two institutions have the broadest mandate in both countries to receive complaints, investigate and prosecute suspects before special anti-corruption courts (the TIPOKOR in Indonesia and Sandiganbayan in the Philippines). They both are tasked with studying governance systems, identifying vulnerabilities and providing advice on corruption prevention and mitigation strategies. The KPK has the added task of monitoring the implementation of such strategies. In this sense, their scope of work is broader than the Independent Commission Against Corruption (ICAC) of Hong Kong and New South Wales (Australia) and that of the Corrupt Practices Investigation Bureau (CPIB) of Singapore whose mandates are confined to investigation.
  • Thirdly, both nations have similar levels of economic development as measured by per capita income and consequently also suffer from similar levels of perceived corruption as measured by normalised qualitative scores on corruption performed by Transparency International and the World Bank.

That is as far as the similarities go. According to Emil, the two systems diverge in terms of their performance, both qualitatively and quantitatively. He states that

In just five years, the KPK has successfully prosecuted over one hundred senior officials that before would have been considered as ‘untouchable’ by their positions and prominence. To date, the KPK has yet to lose a single case, either at the anti-corruption court or at the Supreme Court where the guilty verdicts of the TIPIKOR are appealed. In a country long perceived to be endemically corrupt, with a history of ‘untraceable’ anti-corruption performance, this accomplishment of the KPK is nothing short of extraordinary.

Emil notes further that

By comparison, the Ombudsman’s record is strikingly poor. With the notable exception of former President Joseph Estrada who was convicted of corruption in extraordinary circumstances … the highest ranking official convicted of corruption is at the level of governor; only two governors have been convicted but neither ultimately served time in prison (CENPEG 2006). Examining the records of the Sandiganbayan from 2001 to 2006, the same survey found that the conviction rate (including guilty plea) in the court was only 0.7%.

What accounts for such disparate results? Emil highlights seven factors involving the following:

  1. Jurisdiction (KPK covers the executive and legislature, but not the military, while the Ombudsman covers all offices except impeachable ones although the present office holder contends that this is not the case).
  2. Powers and capacities (KPK has the investigative powers of law enforcement agencies and can conduct wiretaps, examine bank accounts and tax records, freeze assets, issue hold orders and make arrests. The “toothless” Ombudsman has none of these powers).
  3. Operational differences (cooperation in the KPK between investigative and prosecutorial arms is not observed in the Ombudsman and the weight of evidence considered before filing a case is proof beyond reasonable doubt for the KPK, while it is only probable cause for the Ombudsman).
  4. Human resources (recruitment, selection and composition is more stringent under the KPK than the Ombudsman; consequently, they are able to achieve more with less staff).
  5. Performance measurement (objective measures for tracking and monitoring performance are more rigorous and widespread in the KPK).
  6. Accountable management (governance of KPK is handled by five commissioners acting in a collegial manner, while the Ombudsman is headed by one person).
  7. Anti-corruption courts (the adjudication process in the TIPOKOR takes about eight months on average, which includes the appeal process to the Supreme Court, while the process takes about 9.8 years in the Sandiganbayan including appeals to the Supreme Court; and, the effectivity of the sentence is immediate, even if under appeal in the case of the former, not in the case of the latter).

Beyond these specific design features, I would also suggest that what makes the Indonesian case of fighting corruption stronger than the Philippines is the underlying coherence of the state in the former, a point that I made in a previous post entitled Indonesia Rising, Philippines Waning. It should be noted however that despite its successes, recent events have cast doubt on whether the KPK will be able to perform its functions well into the future. Emil calls its history a “cautionary tale” in that within its successes lie the seeds of its own destruction.

Where to from here?

A number of obvious policy recommendations stand out from this comparative case analysis. For me the most salient ones have to do with expanding the investigative powers and prosecutorial capacities of the Ombudsman. Some of the ones Emil highlights which involve exempting select agencies within the bureaucracy from civil service compensation structures I have also discussed here.

The importance of winning cases based on the weight and integrity of the evidence has been highlighted by the impeachment trial of Chief Justice Corona and the “Hello Garci” incident involving former president Arroyo. In both cases, evidence involving bank accounts and wiretapped conversations cannot be admitted due to the illegal nature of obtaining them.

Similarly in the cases involving the prosecution of tax cheats and smugglers, the likelihood of conviction is quite low considering that the Department of Justice was not given sufficient funding to hire lawyers to dispose of its backlog. One wonders what sort of deterrent effect this will have.

For Emil, the litmus test for whether such reforms can succeed is the political support from the executive and legislature. He casts “serious doubts” on whether such structural transformations can occur by saying

(M)any executive officials and legislators are unlikely to welcome the idea of strengthening an agency that could pursue them for corruption.

Any reform he says needs “to be crafted to reflect the constraints and opportunities within the institutions and incentive structures that drive the Philippine political economy”. Mind you what constitutes self interest in this case is really in the eye of the beholder and defined by leaders who are in a position to shape such interests.

Gauging progress

The fact that the corruption perception index of the Indonesia or Philippines has improved recently is not an adequate benchmark for determining the success or failure of their respective reforms. Such qualitative measures merely reflect the overall perception of the panels peering into our world from the outside. While the government is to be congratulated for recent gains in tax and revenue collection, these are not the proper means for determining whether a structural shift has taken place or not.

To use a sports analogy, although the country has acquired a few star players in its team which has lifted its game somewhat, the way to ensure that such performance continues into the future when the star players have left is by playing the “long-game” by having a regimented player development program. Barcelona FC which is rated by many as the top football club in the world (recent events in La Primera Liga and UEFA Champions League notwithstanding) got to be where it is by instituting their way of playing “the beautiful game” decades ago.

The same thing has to occur in fighting graft and corruption in the Philippines. For this reason, the Righteous Path needs to turn a corner. Many of the structural and systemic proposals required have not even appeared on the policy agenda because good governance is not seen as a question of passing new laws, but of simply implementing existing ones.

Even assuming they did bubble up to the surface the enactment of such measures would be hindered for quite some time because the legislature is currently tied up ironically in the impeachment trial (or trails, if we are to believe recent pronouncements from the Palace). This makes the situation diabolically difficult for reformers to reach their destination for without the proper powers, tools and resources, how can they stick to The Righteous Path?

UPDATE: I forgot to disclose as well that it was my father, Noli who, as a delegate to the constitutional convention of 1971-73, sponsored a provision for the creation of an Ombudsman. The Tanodbayan was subsequently created by presidential decree by President Marcos. Its role was taken over by  the Office of the Special Prosecutor under the 1987 Constitution, and the Office of the Ombudsman was given the lead role to investigate complaints of corruption as the new Tanodbayan. My father tells me that the way the present Ombudsman is set-up and operates is not the way he originally intended it to be.

UPDATE 2: Despite these reservations, the third complaint filed with the Ombudsman against the Chief Justice was made by him.

Untrustworthy

That seems to be the label which the instigators of ‘memogate’ want to attach to the Vice President Jejomar Binay.

As the 2013 race for the senate heats up, members of the rival faction within the Palace opposing Jojo Binay have leaked a confidential memo he wrote to the president concerning a case involving corruption in the military. The advice contained in the memo was for the government to enter into a plea bargain deal with the former AFP comptroller General Carlos Garcia.

This mirrored the views of the office of the Ombudsman which at the time was held by Merceditas Gutierrez, Mrs Arroyo’s former justice secretary, who subsequently resigned as an impeachment case loomed against her in the Senate which was filed by palace supporters in the House incensed over her acceptance of the deal.

The tactic of the leakers is quite clear: make the public doubt Binay’s anti-Arroyo credentials, and by doing so, shed light on the fact that he too may have skeletons hidden in his closet. This follows news that the coalition headed by Binay and former president Joseph Estrada announced that it might field Arroyo allies not implicated in cases filed against her in their senatorial ticket come 2013.

Concerns over the integrity of the former mayor were conveniently swept under the rug during the heady days of the anti-Arroyo protest movement. Makati became a bastion of opposition in those days when most local government officials were allied with the administration of Mrs Arroyo. When the remains of former president Corazon Aquino were moved from La Salle Greenhills to Manila Cathedral, the cortege snaked through the streets of the central business district in recognition of the critical role it played as a staging ground for massive rallies.

What memogate reveals is the intention of loyalists associated with his political rival within the administration Secretary Mar Roxas to counter the vice president’s popularity by painting him with the same brush that tarnished Mrs Arroyo’s reputation by exposing his willingness to compromise with her on matters of principle that they deem sacrosanct. These insiders may have wanted the case against Garcia to proceed despite the weak and inadmissible evidence because of Mrs Arroyo’s alleged involvement in the “golden parachute” scheme involving large sums of money in exchange for military support for her government that the case had the potential to expose.

Reacting to an article about the incident reported on Rappler, which speculated on his potential motives for supporting the Ombudsman’s position (according to the report his wife had a pending case before her at the time), Binay called the media organization “reckless, irresponsible and malicious”.

Rappler for its part conceded that Binay got it right. The plea bargain was approved by the Sandiganbayan for lack of strong solid evidence. Although, the president and his allies in the house went to great lengths to reverse both the Ombudsman’s and the Sandiganbayan’s decisions, the general was only pinned down by the AFP for holding a green card to the US while in active service. He is currently serving a two year jail sentence for this infraction.

For his part, the vice president alleges that by making such sensitive deliberations ‘fair game’, the palace insiders have caused harm to the government. This is the fallout of such a propaganda war. By elevating narrow partisan interests above the national interest, these insiders have forgotten their role as custodians of the affairs of state.

On the other hand, such cannot be said of his ally Ernesto Maceda, a prospective senatorial candidate, who in a televised interview connected the case to remove Chief Justice Renato Corona from office with the electoral protest filed by Sec Roxas questioning the vice presidential election results of 2010. “With friends like these, who needs enemies,” the vice president must be saying to himself.

It appears this early that battle lines are already being drawn. The “knights of the round table” in Camelot are laying claim to the mantle of good governance and are intending to lump Binay along with the opposition that was comprised up to this point of Arroyo supporters. Binay on the other hand portrays them as saboteurs out to wreck the president’s effective governance of the nation.

The president for his part is not willing to make a split with his vice president an ‘inevitable’ proposition. He will after all need the support of his deputy in corralling votes in the senate for his proposals if indeed the vice president’s allies control a majority of the upper chamber as polling indicates they will.

The question now is whether the president can and would be able to control the machinations of those that serve in his team to prevent a dysfunction from setting in, if it hasn’t already.