By Frank Wenceslao
Rodrigo Duterte
A PAMUSA legal adviser has been asking me to urge President Aquino and Executive Secretary Ochoa to sit down with Justice Secretary Leila de Lima and clarify if the three are on the same page in the dispensation of justice.
The above gained importance when Davao City Mayor Rodrigo Duterte went public and chided the DOJ Secretary for his frustration on the slow-moving investigation of rice smuggling that he perceived “criminal negligence.” That led another Pamusa legal adviser to ask why the DOJ is investigating a smuggling case when it’s a violation of the Tariff and Customs Code under the Bureau of Customs. There’s also the question why tax evasion cases and other Internal Revenue Code violations are investigated by the DOJ?
Leila de Lima
I’ve resisted criticizing the DOJ up to now in order not to repeat my mistake early in Aquino’s presidency when De Lima apparently took my questions on the DOJ’s program against graft and corruption as critical of her credentials. I could sense she’s punishing me up to now by being personal in rejecting the anticorruption tools and weapons I’ve advised her to adopt. True, graft and corruption can’t be eradicated until an international agreement has closed loopholes for government officials, their family members and close associates or private businessmen and individuals stop colluding and covering up each other in amassing ill-gotten assets from the proceeds of corruption but it can at least be minimized instead of resurging as many now feel is happening during the Aquino administration.
Since the Philippine criminal justice system hasn‘t effectively addressed graft and corruption, Filipinos tend to dismiss anticorruption U.S. laws, which could prove the undoing of former President Joseph Estrada, Panfilo Lacson, Michael Ray Aquino, Reynaldo Tenorio and former BW Gaming and Entertainment president Dante Tan who prompted me to comment in my next column about the recently decided damage suit that Bubby Dacer’s children filed against them in San Francisco’s Federal Court presided by Judge William Alsup.
Meanwhile, our legal advisers believe to have found what’s wrong with the DOJ after examining two (2) originals of the same DOJ letter dated 4 December 2013 Ref: LML-L-04l13-1443 signed by De Lima in blue ink sent to me; hence, one wasn’t a copy of the other. The first was scanned, emailed as attachment and received by me last Christmas Day to which I replied to and argued the opinion was wrong; while the second was received one month later on 1/25/14 via airmail.
Even Pamusa’s non-legal advisers have concluded there’s confusion in the DOJ’s record-management which appears to be out of control. The identical originals of the letter contain the same legal opinions of Section 1 (Declaration of Policy) and Section 2 (Mandate) of the Administrative Code of the Philippines concerning the DOJ, as follows:
1. The designation of a legal attaché abroad I recommended to work with Pamusa to fight Philippine corruption by seeking U.S. assistance isn’t allowed in the Code; and
2. Only the DOJ is mandated to “administer the criminal justice in accordance with the accepted processes thereof.” This explains why De Lima is present in every discovery of a high-profile crime with photo-op making statements that could compromise the evidence that eventually the government case may rest in smuggling, tax evasion, electric power generation and distribution and pricing, etc.
The opinion-writer as though a second thought added as follows: “Anent the designation of a private corporation as a partner in prosecuting criminal offenses, suffice it to say that the prosecution of criminal offenses is a governmental function and cannot be delegated to private corporations or organizations.”
By a stroke of a pen, the opinion-writer passed a law (or is it a decree?) that prohibits sending legal attaches abroad and disallowing members of law firms that are basically private corporations or partnerships to act as private prosecutors in criminal cases. However, our legal advisers saw through the opinion to simply conform with De Lima’s opposition for the DOJ to enter into a cooperative agreement with Pamusa to bring action simultaneously in the U.S. against Filipinos accused of corruption if they may have violated similar Philippine and U.S. criminal laws.
After reading the letter signed by De Lima, even a non-lawyer like me concluded she has lost control of DOJ. For how could she uphold such nonsensical opinions, let alone sign the letter ratifying them? It’s therefore up to President Aquino and Ochoa to judge De Lima has the legal competence and management ability to administer a big justice department like DOJ. I may hasten to add that one doesn’t need to be a lawyer that objectively interpreted the operative clause of Sec. 1 (Declaration of Policy), “administer the criminal justice in accordance with the accepted processes thereof” means using every available means in administering the criminal justice system including the UNCAC and the latest international cooperation agreements against corruption (ICAACs) of which the Philippines is a party.
Besides, the declaration of policy isn’t a provision of law but merely a guide how far execution may go so that there won’t be a need for legislation every time disagreement arises on the real intent of the law whether in its letter or spirit.
Aquino and Ochoa must now confront their doubts if De Lima’s recommendations submitted to them in the last 4 years, say, to pardon or parole a convict with years still to serve might’ve been based on wrong legal opinions? Could De Lima really allow a twisted legal opinion to serve her purpose? How could she uphold an opinion the Philippines isn’t allowed by law to send legal attaches abroad when since the July 4, 1946 the country has been sending commercial, BIR, labor and other attaches as a practical, economic and wise budgetary solution to perennial lack of funds for promoting the country abroad?
The truth is Janet Napoles and co-conspirators especially Sen. Bong Revilla won’t be belligerent as they are and probably would’ve considered a plea agreement faster if the Bangko Sentral or its implementing arm on money laundering (AMLC) followed where the money went in Napoles various scams. Had the DOJ cooperated with Pamusa and we were tipped that proceeds of the scams were brought to the U.S., we could’ve asked the FBI to investigate, which in turn would’ve asked the U.S. Treasury Department’s FinCEN if there have such suspicious inflows of money from the Philippines.
Considering that Pamusa has been authorized by the FBI since 11/14/07 to participate in fighting corruption, we could’ve most likely prevented Napoles’ scams to continue had De Lima accepted Pamusa’s cooperation early in the Aquino administration. In fact, De Lima and I were delegates to the first International Corruption Hunters Conference in Washington, DC in Dec. 2010 and we could’ve established a cooperative framework and most probably Aquino’s “Tuwid na Landas” to fight corruption would’ve been very credible and its resurgence during his administration would’ve been checked.
De Lima from the outset has shown wariness of Pamusa as probable competitor and would earn the credit that belonged to her. Or, she’s afraid Pamusa will comply faster with the UNCAC provision because U.S. law enforcement agencies gather evidence and file charges in court faster than the DOJ as would happen with Janet Napoles and her co-conspirators especially members of Congress like Sen. Bong Revilla and their staffers, to wit:
“Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Countries are bound by the Convention to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court, to extradite offenders. Countries are also required to undertake measures which will support the tracing, freezing, seizure and confiscation of the proceeds of corruption.”
Pamusa hasn’t been remiss in offering our services borne out of 6-year research on fighting corruption to Ochoa and his assistant Ronaldo Geron, PCGG Chairman Bautista with the commission members and others concerned. My problem is they themselves might be covering up people with unexplained wealth if not themselves and won’t let Pamusa be near it. Lest they’d be the first to be caught. Or, are they constrained by tayo-tayo system?
Then, they must be complicit with De Lima’s objection to work with Pamusa and the use of the latest anticorruption tools, weapons, prosecutorial discretion, UNCAC and other ICAACs. If there’s an iota of truth to this suspicion, the Aquino administration’s highest officials don’t seem to care if the country’s unabated graft and corruption is coming back. They don’t seem worried history will blame them for the resurgence of graft and corruption becoming worse than in the Marcos dictatorship and fast becoming like the earthquake and tsunami that hit Japan in March 2011 from which the Philippines will never recover.
Pamusa’s organizers, supporters and volunteers all of whom voted for Aquino collectively ask if the President realized his administration is now locked on a slippery slope and doomed to fail with the continuing loss of opportunities to turn around the nation’s rapid deterioration due to resurging graft and corruption. They also collectively ask if President Aquino and his top officials don’t realize the law is not a solution but merely a catalyst to connect the dots that when properly put together make up good governance.
In baseball, after 3 strikes a batter is out so let’s look at the record. After only three months of the administration, Finance Secretary Purisima and BIR Comm. Henares announced to have endorsed to the DOJ over 30 tax evasion cases which reached 39 after I stopped counting. Thus far, the DOJ hasn’t filed in court against a single “big-fish” out of these 39 tax evasion cases. Strike 1.
The DOJ under De Lima reported that Janet Napoles began her series of pork barrel scams in the Arroyo administration. With the unexpected success of the hundreds of millions of pesos of pork barrel funds her fake NGOs got, Napoles et al. decided to try new and bigger sources such as the Malampaya fund and the Disbursement Program (DAP) that multiplied Napoles’ take. This is already during the Aquino administration. Strike 2.
Yet, to date not a single court hearing has been held to begin the trial of Napoles or any of her co-conspirators, let alone the accused members of Congress especially Sen. Revilla and staffers and other high-profile criminal cases. Strike 3.
There are, of course, more strikes such the Mindanao Massacre, Atimonan shoot-out and hundreds of crimes pending investigation and court filing whose resolution can’t be decided because De Lima wants to personally review each but she’s decided photo-ops are more important that she often spends the whole day in Senate and House hearings where she has been reduced to an eye-witness identifying, for instance, the suspected rice smuggler, Dante Tan.
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