FRANKLY SPEAKING
by Frank Wenceslao
The biggest mess Gloria Macapagal Arroyo is leaving to Benigno Aquino III is a budget deficit which, according to former NEDA head, now Senator-elect Ralph Recto would be P400 billion this fiscal year.
Aquino’s urgent need is to increase revenue and reduce the deficit without raising taxes or he will stunt businesses and kill jobs. The best possibility is saving or minimizing the P800 billion the Philippines loses annually to graft and corruption (G&C) and hasten the search and recovery of the estimated billions or trillions of pesos of ill-gotten wealth hidden abroad by Filipinos or ex-Filipinos naturalized in foreign countries made easier by international agreements such as the UN Convention Against Corruption and the London G20 Summit of April 2009 lifting bank secrecy law, which led then UK Prime Minister Gordon Brown to declare, “The days of bank secrecy are over.”
The greatest news to Pamusa’s supporters and perhaps all overseas Filipinos after Aquino’s apparent victory is that former President Manuel Noriega of Panama has been extradited on April 27/10 to face trial for money laundering in France. It’ll be recalled American troops invaded Panama to arrest and extradite Noriega to be tried in the U.S. and began serving in 1990 a 30-year sentence in a Miami federal prison for money laundering, racketeering and drug trafficking.
His sentence was reduced to 27 years and he could’ve returned to Panama in 2007. However, the French applied for his extradition to try him for money laundering while still Panama’s president which was opposed by his lawyers but nonetheless granted by a U.S. court by virtue of UNCAC’s international cooperation provisions (UNCAC-ICP).
According to a Filam lawyer, Noriega’s case established a precedent more firmly the UNCAC-ICP makes it possible to prosecute in the European Union and Switzerland Philippine government officials guilty of corruption and related crimes from Marcos to GMA including close associates and immediate family members, or private businessmen and individuals that colluded with them for money laundering. The U.S. has added the following crimes in enforcing the UNCAC-ICP, among others, to wit:
Wire Fraud – In the United States Code, wire fraud is any criminally fraudulent activity that has been determined to have involved electronic communications of any kind, at any phase of the event such as the transferring funds from illegal source or proceeds of corruption to and from the U.S.
Money Laundering – It is the process of creating the appearance that large amounts of money obtained from serious crimes, such as government corruption originated from a legitimate source. It is a crime in many UNCAC signatories with varying definitions.
Racketeering – It is the violation of RICO (Racketeering Influenced and Corrupt Organizations Act) by committing crimes for profit in the U.S. especially when the money is obtained by fraud (government corruption) or extortion (bribery).
Foreign Corrupt Practices – Violation of the Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. §§ 78dd-1, et seq.) is a U.S. federal law known primarily for two of its main provisions, one that addresses accounting transparency requirements under the Securities Exchange Act of 1934 and another concerning bribery of foreign officials by American citizens or companies including foreign firms doing business in the U.S.
Criminal Conspiracy – In U.S. criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement such as committing any of the above crimes.
It will be recalled Imelda Marcos was charged in 1988 by Rudy Giuliani of racketeering. Although acquitted of the crime, she can be sued civilly in the U.S. by Pamusa to recover Marcos’ and cronies’ ill-gotten wealth held by her, her children and siblings especially Kokoy Romualdez’s illicit assets transferred to his sons, New York Architect Daniel and Leyte Rep. Martin Romualdez.
The latter is allegedly the paymaster of GMA’s every foreign trip with the usual big entourage, one of the conditions by her to protect Marcos’ ill-gotten wealth from being seized by PCGG. GMA got reimbursed by the government which she then deposited to her foreign bank account in a local bank; hence, she’s guilty of money laundering in the Philippines just as her husband and his brother Cong. Ignacio Arroyo in depositing millions of pesos of political contributions they admitted in a Senate committee hearing.
One important thing to note, GMA’s violation of the Constitution and disrespect for the rule of law in packing the Supreme Court and judiciary with her appointees to thwart the criminal and civil suits she, her family and close associates will face are in vain because they can be tried in a foreign country like Noriega and other corrupt, discredited and unlamented foreign leaders.
However, government officials from Marcos to GMA and their co-conspirators have an option to negotiate settlement and return to the government ill-gotten wealth from the proceeds of corruption. Or else, the incoming Aquino administration may opt for their prosecution in the States through the cooperative framework established by Pamusa with FBI, U.S. Departments of Justice and the Treasury’s Financial Crimes Enforcement Network (FinCEN).
It’s now internationally agreed to be almost a fact that the amount of money extorted and stolen each year from developing countries makes government corruption a crime against humanity on account of the poverty and sufferings of the poor denied of basic government services. Hence, like the war crime trials in Nuremberg after the fall of Nazi Germany and prosecutions at the International Criminal Court at The Hague, not just Filipinos will be complainants against Marcos’ heirs and cronies, the Arroyos and their ilk but all the world civilized people with collective indignation embodied in the UNCAC.
My point is Aquino’s “regime change” should make it unmistakably clear to Filipinos at home and overseas and the international community that he wholeheartedly means to flesh out “kung walang corrupt walang mahirap.” Thus, his Executive Order No. 1, like his mother’s EOs 1 & 2, s. 1986, should direct the PCGG to consolidate its evidence with that of the Ombudsman and other government agencies in the search and recovery of ill-gotten wealth of the Marcoses, Arroyos and their co-conspirators and in a cooperative agreement (MOA) with Pamusa seek the assistance of U.S. federal agencies and foreign counterparts invoking the UNCAC-ICP and other international agreements.
Aquino needs a Presidential Adviser on the UNCAC of Cabinet rank to supervise and coordinate the incoming administration’s Anti-Graft and Corruption Program (AGCP). In addition, the adviser should interface and ensure the coherent application of anti-graft and corruption efforts for quality assurance. It may be advisable the adviser be named interim PCGG chairman concurrently until legislation is enacted for the Commission’s replacement to take overall charge and hasten the search and recovery of ill-gotten wealth rather than the years they’re taking now.
Pamusa will submit PCGG’s evidence on Marcos’ and cronies’ ill-gotten wealth and the Ombudsman’s evidence from G&C investigation to U.S. federal law enforcers and their foreign counterparts. At the same time Pamusa will retain U.S. private law offices specialized in multi-disciplinary, multi-jurisdictional litigation; avail of experts and financial crime investigators to hasten asset-search and recovery; and, more importantly forensic accountants to unravel the sources and applications of funds in complex transactions and uncover whether they’re legitimate or not.
This will hasten the investigation and legal actions of the FBI, USDOJ and other U.S. law enforcement agencies with foreign cooperators in tracing, freezing and seizure of the proceeds of corruption and their return to the Philippines.
Let me quote my favorite passage in President John F. Kennedy’s inaugural address, “For only when our arms are sufficient beyond doubt can we be certain beyond doubt that they will never be employed.” Hence, when Filipinos with stolen and inexplicable assets know that Aquino can avail of worldwide anticorruption authorities and tools to search and recover ill-gotten wealth sooner rather than later, the more likely negotiated settlement becomes a better option of offenders to avoid enormous legal defense cost, the risk of losing all and perhaps spending years in a foreign jail like Noriega.
Overseas Filipinos are almost unanimous that the success or failure of Aquino’s policies and programs depend on the competence of officeholders to apply two important words, i.e. “coherence” and “correlation.” For example, Aquino will depend on PCGG and other anti-G&C agencies to recover ill-gotten wealth to “cohere” or “correlate” with other programs and projects such as reducing the budget deficit; enhancing social amelioration projects, e.g. free textbooks and lunches for grade school children; prenatal, pediatric and health care for seniors with free prescription medicines ala U.S. Medicare; and adult education emphasizing national discipline, honesty and civic responsibility with favorable multiplier effects across Philippine society’s broad front.
Moreover, Aquino in his administration’s first year can have his AGCP hanging overhead like “a sword of Damocles” to deter quick-money schemes, rigged government contracts and criminal enterprises to save or minimize the said P800 billion the government loses annually and hasten the search and recovery of ill-gotten wealth maybe after whistle-blower rewards is publicized and understood by the general public.
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