impeachment

Loose Ends

Lest we get caught up in the notion that Corona’s removal from office has delivered ‘a new dawn’ for public accountability, let us first attend to a few loose ends.

The Corona impeachment showed us as a nation both how to and how not to go about removing high public officers from their posts. The wrong way was summarised by the presiding officer, the Senate President himself who delivered the coup de grace to the former chief justice. In handing down his verdict, Senate President Enrile stated

I was personally frustrated by the loose and hasty crafting and preparation that characterized the presentation of the charges contained in the Articles of Impeachment. It seemed that the case was being built up only after the charges were actually filed (emphasis mine). The repeated recourse to this Court’s compulsory processes to obtain evidence which normally should have formed the factual basis of the charges in the first place further burdened and, at times, taxed the patience of this Court.

We have witnessed with disdain the indiscriminate, deliberate and illegal machinations of some parties who have been less than forthright with this Court in presenting dubiously procured and misleading documents which were spread to the media obviously to influence this Court’s and the public’s opinion.

And yet, despite these “underhanded tactics” employed by the prosecution, some would say that they were effective nonetheless. As Dean Tony La Viña wrote

(T)he conviction of Mr Corona was arrived at, not principally because of the evidence of the prosecution, but because of evidence that ironically the Corona defense presented…The prosecution however should be credited for presenting enough evidence to compel the defense to take the risks they did in presenting the Ombudsman and Mr Corona.

I would even go further than that by saying that without the intense trial by publicity and public vilification of the character of the former Chief Justice, Mr Corona would not have felt the need to come clean at the Senate. After suffering physically, mentally, emotionally and socially from the vehement campaign to shame him into capitulation, he was pressured to take steps to preserve the dignity of his public “face” that in the end led to his conviction.

The wrong way can be summarised by the phrase: the ends justify the means. Many from the bloc comprised of Enrile and six other independent senator-judges plus a pro-administration one in the person of Ralph Recto who were crucial to secure a conviction expressed concern and apprehension at the way this philosophy appeared to govern the pro-conviction side. Some of them had suffered at the hands of similar biased treatment during their political careers. Still they decided to settle the moral dilemma “in favour of upholding the law and sound public policy”.

What this episode in our history should teach us is that when the facts are presented in a manner so clear and convincing, nothing can prevent the right decision from being rendered even by those who are not allied with your cause. The administration had feared that if it had not acted hastily in passing the impeachment through the lower house that the Supreme Court would have been called on to intervene and prevent the case from prospering.

Such a course of action was resorted to by its enemies in the past. This is why in its estimation, the ends justified the means. But if it had built its case on solid evidence, which is eventually what happened in the course of the trial in a back-to-front sort of way, it would have had nothing to fear. Senate President Enrile reminds us that in the words of Dean La Viña the “Supreme Court cannot intervene because the decision would be based, not an on interpretation of law, but on a finding of fact”.

But if this case shows us how not to prosecute public officials we suspect of wrong-doing, its converse would provide a template for the right way to do it. It is in discussing this converse case that a few loose ends crop up. Let me enumerate them in passing.

The role of whistleblowers

The prosecution procured some evidence from an anonymous source tagged the “small lady” contained in a large brown envelope. Whistleblowers may or may not wish to reveal their identities as some of the information they reveal may have been illegally acquired or illegal to disclose as in this case, but wherever possible, they should be encouraged to come forward. Giving them protection through legislation which is currently pending would help in uncovering corrupt practices in the future.

Once these cases are reported and become part of the public domain, through “barbershop talk” or otherwise, the impeachment case demonstrates that it can then form part of a complaint filed with the office of the Ombudsman. In fact, the Ombudsman does not even need to wait for such complaints from concerned citizens to be filed. It can commence its investigation based on such reports.

The role of ‘freedom of information’

Public access to information particularly the sworn statements of assets, liabilities and net worth (SALNs) of public officials would be vital in mounting a challenge to the truthfulness and accuracy of such declarations. It would also be useful as the government seeks to make its use of resources more transparent to the public. Pending legislation could allow for greater availability and accessibility of such information.

Any private citizen with personal knowledge of certain assets owned by government officials could then compare it with what appears in their SALNs. Likewise, anyone with personal knowledge of transactions engaged in by any agency can compare it with the financial statements and specific records kept by that agency.

Any discrepancy or inconsistency can then be used as prima facie evidence to launch a public inquiry into the anomalous statement or transaction.

The role of the Ombudsman and AMLC

Perceptions of a witch hunt due to the orchestration of various public agencies including the Land Registration Authority, the Bureau of Internal Revenue and the Anti-Money Laundering Council to investigate the assets of the former chief justice and his family could have been avoided, if it had been handled by the Office of the Ombudsman. This office has the power to investigate all public officers, even impeachable ones.

The problem however arises in interpreting bank transactions provided by the AMLC in proving or disproving the entries in the sworn SALNs of public officials. The banks are only required to report transactions or flow of funds into and out of client accounts. What is required are the account balances to compare them with the items in the SALN which are a snapshot of the stocks of assets and liabilities at a given point in time.

On top of this, the AMLC can only provide reports to investigative agencies when the accounts in question are being suspected of being used as a vehicle for money laundering. Proposed amendments to the law governing the agency should allow this to be expanded to cover corrupt practices and tax evasion. Of course, the rights of the suspect will still be protected as a court order will still be required for such information to be handed over.

The role of bank secrecy waivers

We have seen how the veil of bank secrecy was almost lifted during the Corona impeachment trial. I say almost, because neither side chose to present any documentary proof from these accounts despite the execution of an absolute waiver. Given perceived inconsistencies between the SALN law and the Foreign Currency Deposits law, the coverage of the waiver executed by public officials when they file their SALNs became a contestable issue.

A few senator-judges highlighted the need for amending these laws to remove any ambiguity or inconsistency between them. In my view, the economic conditions now prevailing in the country no longer warrant absolute confidentiality for foreign currency deposits. While the impeachment trial was being litigated, the outlook for the country was upgraded to positive by one credit rating agency. The nation has also become a net creditor to the rest of the world. Inflation and interest rates have settled much lower than they were when the country experienced a debt crisis.

The rapid accumulation of foreign reserves from investments, exports and foreign remittances has strengthened the peso and put a lot of pressure on domestic firms who have had to compete with imports that are now cheaper due to the peso’s appreciation and on exporters whose products have become less competitive because of the same. It has also lowered the spending power of families who receive the bulk of their income from overseas remittances. The time has come to review the foreign currency deposit law to see whether the incentives provided there for maintaining local dollar accounts are still required or even desirable.

The role of surveys and public opinion

We have seen how public opinion polls were used to apply pressure on senator-judges to cast a vote that agreed with the majority as next year is an election year. The quasi-political nature of the impeachment trial meant that the sub judice rule was not applied. The prosecution, defence and judges were allowed to air their views, present their evidence to the media even prior to their appointed time in the court even when parties were warned not to parade their evidence outside the court room.

Somehow I feel this lack of restraint will force the Senate to adopt a different set of rules the next time around. Thankfully, only one senator, Vicente Sotto III, who experienced a voter backlash following the previous trial of former president Joseph Estrada, based his verdict on the views held by the majority according to the polls which were taken right after the prosecution had presented its case. The rest followed their conscience based on the evidence.

The subdued reception by Malacañang Palace of the verdict in which it stated that Mr Corona was “merely the public face of the things that ail our justice system” demonstrated that it had been chastened somewhat, and rightly so, by the admonitions of many senator-judges for fomenting public rage against the former chief justice. Luckily in this case, public pressure did not result in self-harm or death as it did with former defence secretary Angelo Reyes.

The role of trust

Finally, I would like to highlight the need for public trust in the system for dispensing justice. Many on the winning side of the argument are claiming that the outcome of the trial has restored a sense of faith in our institutions. That point is debatable, but let us take it at face value and assume that at least for those who are pronouncing it, that it is true.

One thing we should hope for is that the next time around, this renewed sense of public trust will prevent them from exercising underhanded tactics to advance their cause. Let us hope that next time around, they will have enough faith in the system to allow it to follow its procedures, allowing a preliminary investigation and preliminary trial through the responsible committees and agencies tasked with determining if there is probable cause for mounting a case.

If we are now to believe that the country has reached a level of maturity, that it can now trust in its democratic and judicial systems to deliver the right outcome regardless of the personalities involved, be they friend or foe, then perhaps in the future we ought to leave it to those systems to function as they were designed to and not try to over-ride them. None of these systems are perfect, of course. In fact no system based on human agency can be, but if we are to live under the rule of law, then we will have to trust in them.

With the impeachment trial now over, and with elections a little less than a year away, let us hope that all of these loose ends get tidied up.

“In the manner provided by law”

After closing arguments, the fate of Chief Justice Renato C. Corona seems to hang on the meaning of this phrase and on one strategically placed piece of punctuation.

The case can be summed up in one question: did the chief justice obey the constitutional provision which commands that ” A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth”?

The defence claims he did, despite omitting some millions of dollars’ worth of holdings in foreign deposits. They hold that this is consistent with the same constitutional provision which states that “In the case of…the Supreme Court … the declaration shall be disclosed to the public in the manner provided by law”.

So does the phrase “as required by law” or “in the manner provided by law” exempt dollar holdings from being declared?

Two schools of thought seem to emerge. On the one hand, Fr. Joaquin Bernas, Ateneo Law School Dean Emeritus, hints that it does. In an article entitled “The Moment of Truth“, Fr Bernas states

How do I read the limitation that the declaration shall be made “in the manner provided by law”? I take this to mean in the manner provided by law either already existing in 1987 when the Constitution was adopted, or promulgated after 1987.

He goes on to tackle the relevant laws covering the sworn statements of assets, liabilities and net worth both before and after the 1987 Constitution and The Foreign Currency Law which provides for absolute confidentiality to dollar accounts. Based on this thinking, there certainly were legal grounds for the chief justice to leave out his dollar accounts. It may violate some people’s sense of morality regarding public accountability, but that is what the law provides.

On the other hand, there is the view that the presiding officer of the Senate Impeachment Court seemed to hold. A strategically placed comma seems to be all that separate the Chief Justice from an acquittal. When Senate President Enrile read the provision out loud to defence lead counsel Serafin Cuevas, he placed an emphasis on the punctuation. The limiting phrase, “upon assumption of office and as often thereafter as may be required by law” is separated by two commas before and after it.

Had the second comma come before the phrase “as may be required by law” then the corresponding laws that Fr Bernas covered would be pertinent. However, the second comma came after it, which would mean that the fragment “as may be required by law” refers to the frequency of the filing, not the content of the SALN. The latter part of the constitutional provision that states “the declaration shall be disclosed to the public in the manner provided by law” on the other hand refers to the procedure in making the information available for public consumption, not the manner by which the declaration is made.

Can the Chief Justice claim innocence because he filed his statement of assets, liabilities and net worth “in good faith” and “without malice” or that it was not his intent to disobey the constitutional provision since it was based on his personal reading of it? In other words, can he be let off on grounds that the offence he committed did not rise to the level of an impeachable one? Again there seem to be two schools of thought.

Fr Bernas on the one hand maintains that the charge of “high crimes” already covers “culpable violation of the constitution and betrayal of public trust”. Based on the principle of eiusdem generis, a high crime must be “of the same kind” as treason and bribery, “paradigmatic impeachable offenses”. Based on the lighter penalties prescribed for violating the SALN law, the failure of the Chief Justice to file an “accurate and truthful” account of his wealth does not make him guilty of committing a high crime.

On top of that, Fr Bernas subscribes to the notion that a high crime must be “obviously wrong” citing an American constitutional law professor, Charles Lud Black, Jr. whose views on impeachment were influential during the Watergate scandal. Given uncertainty over the meaning of the phrase “in the manner provided by law”, Fr Bernas seems to think that what the Chief Justice did cannot be classed as a high crime.

Senate President Enrile on the other hand seemed to hold an opposing view. Zeroing in on the meaning of “culpable violation”, he drew upon his training in the UP College of Law which told him that for someone to be culpable or guilty of an offense, whether by commission or omission, that person’s intentions are irrelevant.

In civil cases where damages are claimed, a person entrusted with the property of someone else will be liable to provide compensation regardless of his or her motives. The standard applied to determine whether someone is culpable or not, and the extent of the liability depends on the level of care expected of that person. In this particular case, a public official was entrusted by the people with public office. Did that person exercise enough care in executing his duties under the law? That seems to be the burning question in Enrile’s mind.

On top of that Enrile appealed to John Austin’s command theory of law from the 19th century when the transition from natural or divine law based on moral views to constitutional law based on the sovereign people occurred. According to this concept, a rule is legally valid if and only if it is commanded by the sovereign and backed up by threat of sanction.

So, according to the logic of this theory, by including foreign dollars in his sworn SALN, the Chief Justice would not be violating any laws (disobeying the command of the people). The laws on foreign currency deposits do not sanction depositors from declaring their holdings, only banks. On the other hand, failure to render a “truthful and accurate” SALN does come with a penalty for public officials. Would a more judicious and careful public servant therefore err on the side of caution? Would he be negligent in not doing so?

The answer in my view seems quite obvious.

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.

Schedule of 2011 PDAF releases to Navotas Rep. Toby Tiangco

Navotas Rep. Toby Tiangco, acting as a defense witness at the impeachment trial of Chief Justice Renato C. Corona, claimed yesterday that the release of the Priority Development Assistance Funds (PDAF)—more commonly referred to as “pork barrel funds”—allocated for his district was delayed as a result of his opposition to the impeachment of former Ombudsman Merceditas Gutierrez. He testified that he received the first tranche of the PDAF on August 1, 2011.

Navotas (Lone District) Rep. Toby Tiangco
Courtesy of the Toby Tiangco page on Facebook (www.facebook.com/pages/Toby-Tiangco/185633641527060)

In the interest of discussion, we are publishing the schedule of the pork releases in 2011 to Rep. Tiangco as recorded in the Department of Budget and Management (DBM) web site.

2011 PDAF – Tiangco, Tobias Reynald M.