Edsel Tupaz

Back to Front

With revelations of bank transactions involving staggering sums attached to a certain Renato Corona unveiled at the impeachment trial of the Chief Justice who bears the same name, some commentators have come to the conclusion that the Philippines has turned a corner in its path towards good governance.

There was that piece by EdselTupaz (not to be confused with Rep Niel Tupas, Jr.) a private prosecutor for the House panel and Daniel Wagner a country risk consultant, ‘The Fall of the Mighty and the Rise of Justice in the Philippines‘, which waxes poetic and sounds a bit triumphalist. It claims that the Supreme Court ruling on Hacienda Luisita and the proceedings at the impeachment court have revamped the image of the country before the investment community, which is why its sovereign ratings have been upgraded.

“The proof will be in the pudding however;” Tupaz and Wagner warned, “for the justice system to truly be able to say that it has turned a corner, Mr. Corona and Ms. Arroyo need to be sent to prison, and stay there, rather than being able to buy their way out.” And therein lies the problem, since the way the trial has unravelled shows not how the system is finally working, but rather that it is operating back to front. I am referring to the way in which evidence has been gathered which may weaken the case against the accused if and when the proceedings shift from the impeachment court to the anti-graft one.

The most damning pieces of evidence presented in the trial so far have been those relating to peso and dollar accounts that the prosecution claims were owned by the Chief Justice but not included in his statements of net worth. Documentary proof of the accounts was first leaked to the prosecution team and subsequently found to have been obtained unlawfully. Despite this, however, the court ruled to admit them as evidence claiming that its procedures were sui generis or one of a kind.

When advised of this ruling, the bank in question sought and gained an injunction from the Supreme Court to prevent the disclosure of the dollar accounts which under Presidential Decree 1035 could only be examined with the written consent of the account holder. The Ombudsman seemed to have found a way around this by going to the Anti-Money Laundering Council (AMLC) which was set up to monitor the flows of large or suspicious amounts in the banking system.

Having the constitutional mandate to investigate all public officials, including impeachable ones, and armed with the power to request help from other government agencies in this regard, she had secured a dossier from the AMLC detailing transactions involving not only the bank in question, but others as well, which formed part of her testimony at the impeachment court. While the defence had sought to grill her on the means by which she had obtained them (had she gained a court order for instance), the Senate President ruled that such questioning was immaterial and that the regularity of official actions was presumed.

No one among the senator-judges objected to this ruling at the time, since the testimony of the Ombudsman had been highly anticipated. This anticipation had been built up to the point that if the evidence had been suppressed, it would have been likened to the case of the second envelope containing the infamous Jose Velarde account during the trial of President Joseph Estrada which led to the second People Power revolt that toppled him.

It dawned upon some judges the day after they had been treated to a visual presentation of the forensic analysis conducted by the Ombudsman with help from the Commission on Audit the ease with which such a dossier could be compiled. In the age of digital computing technology, the beast that they created, namely the AMLC could potentially devour them and all political foes of any sitting president. ‘Morales’ Powers Feared‘ one headline read referring to the Office of the Ombudsman.

In a piece entitled He Who is Without a False SALN, Let Him Cast the First Vote, I tried to make the point that given how prevalent the practice of doctoring one’s statement of net worth is, that if the same standard of probity were enforced across the board, perhaps no individual in government would come out squeaky clean. Indeed whenever the letter of the law is applied to any single individual, the reaction often is “why me?” which inevitably leads to allegations of conspiracy on the part of the accuser (implying that the law is not being applied equally to all).

Some senator-judges not formally aligned with the Palace in seeking to adjudicate the case fairly probed the Ombudsman as to whether the assumption the court had made regarding the regularity of official functions was indeed justified. ‘Morales’ Acts Illegal?‘ was the rhetorical device posted by one news daily. ‘Blitzkrieg’ was how another labelled the situation.

The Ombudsman admitted at the trial that she did not deem it necessary to gain a court order before requesting the information from the AMLC and presenting it before the public. How could she, if in this case, the only valid court was the Senate? Such a pre-requisite would have been circuitous if not back to front in the investigative process (meaning you normally gather evidence first before charging someone), but that is what the law seems to prescribe as a safeguard to protect the defendant’s rights.

As I have said previously, the only way to address the issue would be to relax our bank secrecy and anti-wiretapping laws and grant the Ombudsman powers to inspect bank accounts and conduct audio surveillance. Without such changes, the office might continue to suffer the dismal conviction rate that it has. But to get the support of Congress for such measures will be difficult since as we have seen  it will be loath to adopt them because of their potentially adverse impact on its political independence.

Perhaps all that is needed to get the proposals enacted would be to draw a line in the sand as Jesus did in the gospel of John (which in this case would mean preventing the Ombudsman from applying the new rules retroactively to acts committed prior to the signing of such legislation, something that Indonesia did with their Corruption Eradication Commission) and charge our public officials as he did the adulteress, to “go and sin no more”.