Two PDAF columns - on the Napoles affidavit and on the creation of a truth commission

June 5, 2014 at 11:17pm

A problem called Napoles (31 May 2014)


When the Philippine Daily Inquirer first exposed the pork barrel scam on July 12, 2013, only 28 members of Congress (five senators and 23 representatives) were tagged as participants. More recently, the Napoles signed affidavit submitted to the Senate by Justice Secretary Leila de Lima, listed 20 former and incumbent senators as well as 100 former and current representatives. Then there are the Luy records, first disclosed by the Inquirer and now submitted officially to the Senate by Sec. de Lima (and subsequently released to the public by Senator TG Guingona, chairman of the Senate Blue-Ribbon Committee investigating the PDAF scandal).


With every statement and files that come out in the public, more and more names have been dragged into the scandal. At present, in my estimate close to 200 personalities have been tagged as either participants (a new meaning to the word “agent” has been given by Napoles) or beneficiaries  in the PDAF and/or Malampaya scam. These include senators, representatives, a former Supreme Court justice (who was a former legislator himself), department heads, media and show-biz personalities, heads of government-owned and -controlled corporations, government employees of various agencies, local government officials, lawyers, military officials, personalities, employees of the Senate and the House of Representatives, priests, and private individuals .


The question is – how do we now proceed to make a sense out of all the information that has come out?


I am in favor of the steps that Senator Guingona has taken to disclose all of this in the interest of transparence? But I think that there is also a responsibility by government officials, media, and academics like me to guide the public understand what is happening and what the next steps should be. In this and the subsequent column, I will seek to do my duty as an opinion writer, as a professor of the law on public officers, and as an academic expert on corruption and governance, to do just that. 


For me, the easier thing to do is how to deal with the Napoles affidavit. From a legal and probative (as evidence) point of view, I think the affidavit is irrelevant and should not be taken seriously. I will not take her word even against the three senators already accused – Enrile, Estrada and Revilla. To present her as a witness against those three would be legal suicide for the prosecution. Her testimony will only weaken the case against them.


I will also certainly not use the affidavit of Napoles as a basis of filing charges against the likes of Secretaries Butch Abad and Alcala, or against Senators Legarda, Koko and Nene Pimentel, Angara, etc. This view was based on my personal knowledge of them and after reviewing the affidavit of Napoles; nothing she states there has changed my mind.  Previously, I have already stated my belief that I cannot imagine these good men and women in the Napolist as being part of the PDAF scam. I would add the names of Senator Jun Magsaysay and Antonio Eduardo Nachura, both eminent personalities known for their probity and integrity, to that group I would not conceive as being part of any scam.


Take the case of Secretary Abad and the allegations against him. What is good about the assertions of Napoles in her affidavit is that they can be verified by documents. For example, does the Special Allotment Release Order (SARO) she claims she showed Sec. Abad exists? Where is it and what does it contain? The Batanes Electric Cooperative, Inc. (BATANELCO) has already affirmed it was never a recipient of a ten million-peso fund with SARO, contrary to the allegation of Janet Napoles in her statement. BATANELCO has even listed all their projects and the funds from them and none fits the Napoles claim. As far as I am concerned, Secretary Abad has nothing to worry about if this is the only thing Napoles has to say about him.


Incidentally, people have asked me why I have consistently stood by Secretary Abad in this corruption crisis when we are not even close personal friends? Some of  my readers and Facebook friends are concerned that I am staking my credibility in this defense of Abad.


The answer is really simple – in the toxic politics of our country, you have to have trust on people. I cannot be in the business of teaching politicans and public officials if I am going to be overly cynical and skeptical of everyone in the system.  You also have to trust your own judgment based on an objective appreciation of facts. If course, Secretary Abad is a saint and I know he is a politician, but it is precisely because of this that I support him. We need people in the system who is committed to reforms for good governance and who are passionate for social justice. Thirty-five years of watching Butch and his wife Dina Abad in their public lives is enough basis for my trust. At the same time, I do examine the claims and evidence and is open to changing my mind if in fact there is a basis for doing so.


Having concluded that the Napoles affidavit is not valuable legally and from an evidence point of view, it is still important to look at as an investigative tool to cross-reference to other testimonies and data. I think that all those implicated in the Napoles affidavit must come forward with their version of the facts, with proof as possible as Secretary Abad and Senators Sonny Angara (with his widely applauded posting all of his PDFAF projects) and Pimentel (by filing charges against those who falsified his signature) had done.


This brings me to the Luy files and what they imply. The next column will explore this question and propose a next step to ensure that we have a good, satisfactory conclusion of this PDAF crisis.


A truth commission is essential (3 June 2014)


In my column last Saturday, I pointed out that close to 200 personalities have been implicated in corruption schemes hatched and run by Janet Napoles. Every one of these has denied participating or benefiting from these schemes. They have either denied knowing Janet Napoles altogether or have rejected accusations that they received bribes or kickbacks in exchange for endorsing projects that Napoles’ so called fake NGOs were supposed to implement.


As I also wrote, dealing with the Napoles affidavit and list/s is not a difficult decision. It should just be rejected by the Ombudsman and should not be used in any way to bolster the case against Senators Enrile, Estrada and Revilla. Nor should these documents be the basis for filing a new batch of criminal charges. Using the Napoles documents is a sure guarantee for acquittal as it is clear that it cannot withstand careful scrutiny. My sense too is that Mrs. Napoles will wither in front of unrelenting and rigorous cross-examination.


It follows as well that neither Mrs. Napoles and her family members should be given any kind of accommodation by the Department of Justice and the Ombudsman, much less granted immunity as a state witness. That would be so colossally erroneous and wrong.

But does this mean the Napoles revelations are totally useless? Actually no. I would consider them investigative tips, and as all such tips goes, some would lead somewhere while others are false leads intentionally placed to muddle the issues and confuse people further.

This is the same status that should be accorded to the so-called Luy files, contained in a hard drive with 20,103 files held in 2,156 folders that record the transactions of the JLN Corporation for the period 2002 to 2012.


Do the records that have been unearthed so far corroborate or contradict each other? In case of inconsistencies, can they be reconciled? Given the pace with which “incriminating” files and records are coming out, are we expecting even more evidence to be made public or used during trial? Considering the extent of this corruption scandal, can we truly say that the investigators have dug deep enough to get to the bottom of the greatest scandal in the annals of our political history? Do the Ombudsman and the Department of Justice have the institutional capacity to ferret out the whole truth considering the enormity of the crime and the number of personalities involved?


The National Bureau of Investigation (NBI) headquarters in Manila shipped a truckload of around a million documents to the Office of the Ombudsman in Quezon City in preparation for the filing of a complaint against the first batch of accused. At the current rate personalities are being implicated, how many more truckloads of evidence will have to be collected to build up a strong case against the increasing number of accused? More importantly, do our existing institutions have enough personnel, resources and expertise to tackle a crime of this magnitude?


What is clear now is that the regular institutions and normal processes cannot cope with the enormity of this corruption scandal. Surely, the DOJ and its attached agencies like the NBI cannot realistically focus all its resources on the PDAF investigation alone and jeopardize its other concerns, i.e. prosecuting and investigating thousands of cases among other responsibilities. Unfortunately, given the number of senators that have now been mentioned, any finding from the Senate Blue Ribbon committee would probably not be credible to many. Yet the transcendental importance of finding out the whole truth behind this scandal and punish the guilty is essential if we are to meaningfully reform our dysfunctional political system.


Given my observations above, I have come to the conclusion that we need an independent and impartial fact-finding body, a truth commission in fact, that will have the principal duty of uncovering the facts behind the PDAF and Malampaya corruption scams, and laying them out for the public to understand and make judgments. Such body, preferably created through legislation, shall be composed of individuals with reputations of high moral integrity and probity – chaired by a former Chief Justice of the Supreme Court (Reynato Puno, Artemio Panganiban, or Hilario Davide are excellent for this role) - and have authority to issue subpoenas for documents and witnesses. It may also recommend to the Ombudsman who could be given immunity as a state witness.


The commission should also be mandated to give policy recommendations to Congress, the President, and the relevant independent constitutional commissions (the Civil Service Commission and the Commission on Audit) so that Napoles-like schemes will never again be resurrected in our governance system.


Finally, the commission shall be mandated to work with the Ombudsman on the prosecution of criminal complaints against those persons where the evidence warrants the filing of cases. The law creating it should authorize the Ombudsman to deputize the commission to prosecute the PDAF and Malampaya cases with oversight retained by her.


To do its job well, the commission must be given sufficient resources so it can hire the best possible investigators and lawyers available on the market. Additionally, such body must follow the highest standards of transparency so that people would have confidence in its impartiality.


Many good individuals have been maligned these past few days. I have written about some of them; others I don’t know well enough to vouch for their integrity. Some are already planning to take action, including the filing of libel, perjury and other charges against Mrs. Napoles.


Creating a truth commission is not about prejudging or denying the right to due process or violating the principle of presumption of innocence; this is about the positive act of clearing the air for everyone for the good of society. Otherwise, the political economy of lack of institutional capacity will prevail and we will not be able to get to the bottom of this corruption crisis. And without accountability, it will happen again, many times over in fact, certainly too many in a citizen’s lifetime.