Closing the door to corruption!

Frankly Speaking
By Frank Wenceslao

In the remaining three years of his term President Aquino is on the threshold of bringing graft and corruption down to insignificance it could be just an ordinary crime the police can handle. Maybe not like the eradication of small pox but nonetheless tantamount to closing the door to the conspiracy that has made the scourge tantamount to organized crime that has debilitated the nation’s political, socio-economic, cultural and moral institutions.

Awaiting decision now is the PCGG-Pamusa Cooperative Framework (“coop”) perhaps eventually including the Office of the Ombudsman (OMB) which can bar a case similar to Maj. Gen. Carlos Garcia’s never to happen again. The coop will hasten recovery of the country’s stolen resources from Marcos’ to Arroyo’s administrations and make government corruption so unattractive and risky only the criminally inclined would dare be involved in it.

All concerned can begin with Garcia’s sweetheart deal with former Ombudsman Merceditas Gutierrez, government prosecutors and the Sandiganbayan justices involved in the case should be looked into deeper so that those still in office should resign immediately on the heel of the Supreme Court’s TRO nullifying the plea bargain agreement. Moreover, former SC justice and now Ombudsman Conchita Carpio-Morales should investigate motu proprio the extent of the movements of substantial amounts of money from Garcia, his family members and lawyers to the bank accounts of Gutierrez, government prosecutors, and Sandiganbayan justices that tried the case.

This is probably the first time it’d be done, Finance Secretary Cesar Purisima should immediately constitute a panel composed of Anti-Money Laundering Council (AWLC) and BIR representatives to investigate and track the bank statements and unusual deposits and foreign currency transfers of Gutierrez, the prosecutors and Sandiganbayan justices. It’d be recalled that Ombudsman Carpio-Morales nailed former Chief Justice Renato Corona on the basis of his dollar accounts in different local banks the AMLC furnished the Ombudsman that Corona’s defense lawyers couldn’t convince the impeachment court (Philippine Senate) to disallow. Now, that the anti-money laundering law has been amended and given more teeth it’d be more difficult for defense lawyers to exclude the information gathered by the AMLC-BIR panel on the inordinate inflows and outflows of money in the bank accounts of said individuals in the Philippines and abroad.

Criminal psychologists claim that a criminally inclined person has his/her usual modus operandi. Those in high positions who receive bribes will spend the money almost immediately, for instance, buying expensive gifts for spouses or girlfriends, wearing expensive suits or barong Tagalog, remodeling their houses, etc. Of course, investigation of these government officials should include their family members and close associates who may act as their dummies or the private individuals and companies doing business with them.

According to a US Pinoy who wishes to be unidentified for obvious reasons, this is how the FBI investigates violation of federal laws against corruption and financial crimes. Moreover, the FBI charges with obstruction of justice the person or persons caught lying during the investigation. We do not know if Philippine law enforcers such as the NBI and PNP are empowered to charge obstruction of justice when lied to like the FBI. I’m sure the DOJ has such powers and Secretary de Lima who’s almost always involved in the investigations of high-profile crimes can nail those lying during investigation of corrupt practices and other financial crimes.

The Pamusa volunteers that conceptualized the PCGG-Pamusa coop are decided to include the OMB even if the formality is done later on. Under the coop the PCGG continues the hunt for Marcos’ and cronies’ ill-gotten wealth while the OMB opens a new front to recover the illicit assets of current and former public officials and employees, their family members and close associates, or the private businessmen and individuals that colluded with them in the post-Marcos years. On its part, Pamusa will continue its research on the latest international cooperation and weapons against corruption, build up its capacity and enhance its network of supporters, volunteers and the general public in information gathering and the latest development concerning the UNCAC and other international anticorruption cooperation agreements (IACA) the Philippines is a signatory.

For instance, it took a retired UP law professor and Court of Appeals justice to suggest to me to bring to President Aquino’s attention so that no one else can claim it as his own that usually happens in bureaucratic credit-grabbing that the evidence against a respondent accused of graft and corruption can be expeditiously gathered at the least cost when investigation is based on violating two congruent PHL laws, namely: RA 1379 (forfeiting in favor of the state unlawfully acquired property and anything of value by government officials and employees) and RA 3019 (Anti-graft and Corrupt Practices Act) for which forensic audit can be used to prove unexplained income.

The usual practice is illicit assets from the proceeds of corruption are converted to US dollars, transferred to US bank accounts and used to acquire US real estate, securities, precious metals, and other properties. This is deemed a violation of the US Foreign Corrupt Practices Act (FCPA), money laundering, and related laws such as conspiracy to violate US laws. Pamusa can therefore file a US lawsuit against the respondent. Moreover, other IACAs permit the exchange of tax information, say, between IRS and BIR to drive hard on tax evasion and avoidance and the lifting of bank accounts secrecy.

The US Foreign Account Tax Compliance Act (FATCA) requires Philippine banks and other deposit institutions holding foreign deposits of American citizens and nationals to ensure the US tax due on the deposits is paid. Conversely, since FATCA has reciprocity and the OECD permits the exchange of tax information between national tax authorities, US banks and other financial depositories can be asked by the BIR to ensure Filipinos’ and former Filipino citizens’ (depending on the dates deposits were made if they were still Filipino citizens) have paid Philippine taxes on their deposit accounts.

Thus far, Pamusa is the only anticorruption entity focused on the Philippines granted authority by the USDOJ to actively participate in fighting our country’s corruption in conjunction with the UNCAC and other IACAs. Meanwhile, I have cleaned up Pamusa’s supporters and volunteers wanting to use it for personal vendetta – e.g. someone has offered to be president and me to be chairman with 6-figure salary as well as finance Pamusa’s operation and legal expenses – if Pamusa would run after a Marcos’ crony owing his family about P5 billion. I have refused the offer because I do not want Pamusa to be used for ala Mafia enforcement.

My hold-out colleagues and I want Pamusa’s to use its authority to hunt for the country’s stolen resources pursuant to the USDOJ’s letter of 11/14/07 which will be enhanced by Secretary de Lima’s writing a letter “rogatory” designating Pamusa’s president to make and receive requests of the US Attorney General pursuant to the PHIL-USA Mutual Legal Assistance Treaty “in connection with the prevention, investigation, and prosecution of criminal offenses, and in proceedings related to criminal matters.”

When the PCGG-Pamusa coop with the OMB becomes operational even if the latter isn’t a formal member yet, Pamusa will help the PCGG and OMB and request the USDOJ’s assistance, as follows: (a) in taking testimony or statement of persons; (b) providing documents, records, and items of evidence; (c) serving documents; (d) locating or identifying persons of items; (e) transferring persons in custody for testimony or other purposes; (f) executing requests for searches and seizures; (g) assisting in proceedings related to forfeiture of assets, restitution, and collection of fines; and (h) any other form of assistance not prohibited by the laws of the Requested State.

However a lawyer looks at it, the coop with OMB joining it later on is tantamount to closing the door for Filipinos’ illicit assets to get out of the country and be brought to known havens now under pressure to ask depositors of hot money to get out of their jurisdiction. The Swiss Banking Authority has taken the first step in lifting the secrecy of bank deposits by furnishing the IRS with the names of American citizens and nationals evading US taxes through Swiss bank accounts. It’s expected that Lichtenstein, the Cayman Islands and British Virgin Islands will follow soon more so when in the recent G-8 Summit in Northern Ireland the 8 world’s most powerful have agreed to use sanctions against tax havens of hot money. Hence, in the service of the PCGG and OMB, respectively, Pamusa can ask the USDOJ’s assistance to recover Imee Marcos’ and Manny Villar’s deposits in the BVI.

Secretary de Lima and PCGG Chairman Bautista should therefore act quickly in order to recover these deposits before they are brought to another tax haven, albeit doubtful to accept the transfer. If there are remaining objections against the tripartite cooperation, these can be overcome by other government officials and agencies thinking of whatis good for the country and extending cooperation. That’s why US Pinoy volunteers who helped Pamusa to craft this recovery program can’t understand why it’s necessary for Secretary Ochoa to have the MOA against corruption signed recently by him representing the Office of the President with Ombudsman Carpio-Morales who must have been dragged into it.

In light of the fact that many IACAs and anticorruption weapons are for the first time in history aligned to help the Philippines to recover its stolen resources, it’s obvious the MOA between the OP and OMB has become redundant. Creating the implementing framework of the MOA will further delay the tripartite coop’s operation, thus losing the opportunities to recover soon at least Imee Marcos’ and Manny Villar’s offshore bank deposits.

Let me reiterate with unmistakable emphasis that the tripartite coop is sufficient for the PCGG to continue its main purpose of hunting Marcos’ and cronies’ ill-gotten wealth; the Ombudsman rendering retributive justice to past and present government officials and employees including private co-conspirators that amassed illicit assets during the post-Marcos years; and Pamusa adding to the nation’s legal resources the USDOJ’s assistance in all proceedings related to criminal matters and the IACAs’ latest weapons against corruption.