Much ado about nothing
By ElCid Benedicto
Such would likely be the case, in the end, of the Senate blue ribbon committee in taking great pains in securing a copy of the widely-publicized alleged digital files of pork barrel scam principal whistleblower Benhur Luy.
The committee headed by Sen. Teofisto “TG” Guingona III is facing the difficult task of hurdling some legal obstacles in proceedings with its halted investigation into the pork scam, a matter which probably explains why he has been conspicuously silent until now as to when the panel could schedule a hearing to tackle the “digital files.”
There now exists some provisions in the law, under the Cybercrime Prevention Act of 2012, which could probably prove to be a stumbling block in taking up anew the issue, add to the fact that the case has been formally turned into the hands of the anti-graft court by the Office of the Ombudsman.
Senators, in various interviews, appear to be now in conflicting positions as to whether they should still continue investigating the P10-billion pork barrel scam as there are those who admitted that it’s eating too much of their time, while others, came off to have some personal agenda – that of exonerating themselves from the mess after their names have been included by no less than Janet Lim Napoles in her so-called “list.”
More than the issue of the Senate probe practically opening a can of worms, was a possible legal consequence that could prove to be damaging to the institution.
Remember the time when the Senate’s Committee of the Whole was barred by the Supreme Court from proceeding with the call of some senators to replay the “Hello, Garci” takes in their hearings then?
Even before the SC handed down its decision, two senator-lawyers – Miriam Defensor-Santiago and Richard Gordon – issued a stern warning to their colleagues, coupled with a threat of bringing the issue to the High Court, if the tapes will be made public, as they were of the position that replaying an illegally-recorded conversation between two individuals would be tantamount to an invasion of privacy.
The Senate could stand to violate the Anti-Wiretapping Act as well, Gordon pointed out.
Santiago held the position that the right to privacy communications prevails over parliamentary immunity, which includes Senate proceedings.
At that time, the parallel investigation in the House of Representatives already saw the playing of the tapes but Santiago insisted that a duplication of such act would not justify the use of the wiretapped tapes in the Senate proceedings.
“It is the duty of the Senate to educate the House on pressing points of constitutional law,” she said.
Ironically though, the SC stopped the Senate from the playing of the tapes not because of the issues raised by the two senators but it has yet then to publish its rules of procedure governing inquiries in aid of legislation, “in clear derogation of the constitutional requirement.”
The SC even noted that the Senate had admitted in its pleadings and even during oral arguments that the Rules of Procedure had been published in newspapers of general circulation only in 1995 and 1996 and at that time of the said controversy, no similar effort had been made when they first opened their session in June 2007.
In the present case, however, regardless of whether the Senate had already published its Rules of Procedure Governing Inquiries, they have to deal with the provisions of R.A. 10175 also known as the Cybercrime Prevention Act of 2012.
No less than Sen. Vicente Sotto III pointed it out in one of their plenary sessions recently, hours before the blue ribbon committee received from the National Bureau of Investigation (NBI) Luy’s digital files the matter of legal consequences concerning the two-year-old law, particularly Section 4 on covered offenses.
It says that among those that could constitute an offense under the said law, include “access to the whole or any part of a computer system without right,” “intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document or electronic data message, without right including the introduction or transmission of viruses”, “the use, production, sale, procurement, importation, distribution or otherwise making available, without right of,” “acquired without right or with intellectual property interests in it” and so on and so forth.
It should be worthy to note that the so-called Luy’s files were taken from the “files” of the company of Napoles and thus, were not his “property” or owned by him in the first place.
Luy apparently kept the files given his designation as Napoles’ “bookkeeper”, thus, even the laptop that he used to in safekeeping the information is said to be owned by the company he used to be connected with.
By this time, Guingona could very well be aware of these legal impediments which probably explains his “silence” on the issue of whether to continue or not with the halted investigation.
As if these were not enough, his legal team could also be looking at the issue of the legalities surrounding the probe on the documents coming from Napoles – her twin sworn affidavits and so-called “Napolist” – after the Ombudsman junked her plea to be considered as state witness in the case.
Any lawyer would say that such affidavits coming from Napoles, were not a tell-all but rather executed under some conditions imposed by her, that she was offering the information in exchange for some quid pro quo – that of becoming an immune witness or sparing her children from being made co-accused in the case.
It means that her statements cannot be taken against her and with her plea being junked after failing to meet the qualifications of those applying to become an immune witness, what will become now of the Senate probe?
The Senate Hearings
By Ramon Orosa
I HAVE often wondered what the objectives of the Senate were when it chose to hold hearings regarding the PDAF scam. I was questioning the wisdom if not the utility of that move. Well, the results of the hearing, which was focused on Napoles, are clear indicators that the Senate once again lost out in the process.
In the first place, while Senate hearings in aid of legislation are routinely held, in this instance, the matter is now before the Ombudsman who are presumably perusing the COA reports and the evidence that they have been able to obtain to determine if and what charges are to be filed against those involved. The truckload of evidence accumulated by COA has been provided to the Ombudsman for evaluation and suggests that a lot of time has to pass before the charges are eventually filed.
In some respects, the clamor for charging all of those involved and to file those charges as quickly as possible may not be very realistic. The appreciation of evidence for prosecutorial purposes calls for much judicial wisdom and courage considering the personalities involved. This is not to say that the work involved should not be pursued with much studied haste because an improperly considered legal move may mean the dismissal of charges even against the guilty parties or the indictment and eventual conviction of the “innocent”.
My second concern is that even if Napoles did reveal all, was this simply an attempt to provide her with immunity so that she may escape imprisonment? Thirdly, I do wonder whether the Senate would ever come to a conclusion that the involved members of the Senate are indeed guilty which would be a clear pre-emption of the judicial process now in the works.
Third, it would seem there is a clear conflict of interest involved and even if the head of the committee and its members that held the hearing were not ever involved in the past in any PDAF scam, wisdom should have directed them to refrain from holding such a hearing. It would have been preferred if a hearing on whether amendments to the Constitution might be required to protect the PDAF process from being manipulated or becoming just the milking cow of greedy legislators who are ever so quick on blaming others and unwilling to accept any responsibility.
Most people in the know are aware of what has been happening for such a long time; except that it is only now that a courageous COA is acting with integrity and not being part of the problem. Now there seems to be the “smoking gun” evidence to reveal the truth and prosecute those involved without fear or favor. So, to amend the laws so that accountability of those involved in the process is clearly established in plain ordinary English is a most laudable legislative objective. All the senate needs to do is examine the paper trail and to follow the money trail for purposes of revising the governing rules in the process of identifying, allocating, reviewing and disbursing the monies involved.
That is more appropriate for the senate’s concern. To investigate leading to a determination by their convoluted minds and reasoning whether the individual senators are guilty or not, or to create a bogus spectacle of indignation during the hearing as they either bamboozle the witness or grandstand before the public is more likely to have been the objective; a sign of desperation to try and redeem their tarnished names is quite pathetic. Sorry, but Napoles did not accept the role.
Fourth, is that there is a constitutional provision against self incrimination as it is a judicial principle that one cannot be compelled to testify against one’s self. So, any offer of immunity on the part of the Senate becomes counterproductive to the ongoing judicial process. Considering that several senators are involved, it seemed rather unfortunate that the other senators now position themselves as judges over their peers and even provide an opportunity for those involved in the scam to question the person seen as the leading private sector mastermind of the scam.
The PDAF scam in fact is just criminal activity for which no Senator is immune. Could a finding by a Senate Committee be construed as a form of obstruction of justice, even if they are co-equal to the judicial part of government?
The inability of the senators to rise above their own interests is rather saddening as it is indicative of such clubby, self centered behavior. Unfortunately, I suspect most of them still see the people’s anger against the rampant corruption in the highest reaches of government as a storm that will pass soon and then it is back to the same old ways with maybe a little deodorant applied here and there. Cosmetic changes intended to do some damage control but with no real desire to change the system or seek the higher good of the nation, if not punish the guilty and purge that body of misfits unworthy of their office.
In fact, that anger is directed at the reality of the PDAF being disbursed according to the individual discretion of the lawmakers. We all know that the issue is not just kickbacks but also outright estafa as the NGOs and the recipients are said to be fake, though kickbacks are a corrupt practice. That the whole system is syndicated, meaning needing the involvement of at least three persons, seems rather clear and obvious. So finger pointing is going on in the midst of so much hand washing. The essential element, of course, to estafa being the fact of conversion, meaning funds intended for some purpose in whole or in part going elsewhere to one or more persons benefit. Syndicated estafa, of course, makes the offense non-bailable. The deodorizing by calling these shenanigans simply malversation of funds, just does not stick. It is calculated to let those involved remain free due to the offense being bailable.
I hope the Senate just crawls back into the dungeon they come from and keep quiet about these developments. If an involved senator wishes to defend himself, let him deliver his privilege speech like Jinggoy did, though most people admit that was not a real defense because he never denied the charges. All he really did was say in effect that many others are as guilty as he is.
The one question no one is asking is, if the senators have only 200 million pork, how come some of them spent so much more? Where did it come from? Is this part of the DAP program of the Administration? Is that being disbursed willy nilly? Like ok, l give you so much and to the others, so much, etc., bahala na kayo; just support whatever law I am pushing ,etc.? What is the complicity of the President, the Sec. of the Budget, and other parts of the Executive. Are those funds that are surreptitiously “allocated” to get departmental budgets approved? Nothing new, but this is also the point of the people against Presidential discretion! Subject to so much abuse even if personally the President does not gain money and only political muscle! Hey man, the game rules are indeed changing!
Time to call a time out and rethink so many issues.
A Weakened Presidency
By Elcid Benedicto
WHILE many perceive the ruling of the Supreme Court, declaring the lawmakers’ pork barrel funds as unconstitutional as a setback for senators and congressmen, what others fail to recognize is the more serious consequence of the decision: a weakened presidency.
The pork barrel scam which unraveled before the eyes of the public the ills behind the manner in which some lawmakers make use of their Priority Development Assistance Fund (PDAF), it also paved for the disclosure of the fact that the pork barrel is often used as a tool by the President to wield influence among Congress members in deciding on certain crucial issues.
A case in point, was the Corona impeachment trial where allegedly, President Aquino, through his minions, swayed some senators to vote for the conviction of ousted Supreme Court Chief Justice Renato Corona in the 2012 proceedings and on the issues as well on the enactment of the reproductive health (RH) law and sin tax, supposedly.
What will become now of the senators sans the PDAF? Senate insiders said it has now rendered an impossible task for some “enterprising” senators and some of their well-trusted staff the matter of yielding “commissions” from their “soft” and “hard” projects.
“There’s no more scholarship programs for them or projects that they can identify themselves. That’s the practical and immediate impact. In theory though, if there are some congressional districts or congressmen or local government officials that they would want to lend assistance, the (Senate) finance committee chair could opt to tell them to identify the projects early on and have it included in the budget. But there’s no more lump sum appropriations,” Senate sources said.
The possibility of availing of government funds is still there, by having to specify in the proposed national budget, during deliberations period, but it will no longer require the senator’s signature for certification or endorsement.
“Mas malinis na although technically can be viewed as another form of congressional insertions,” was how sources described it.
The scenario being given is that, in the entire budget process, lawmakers can still make some “congressional insertions” while the proposed national expenditure program for the following fiscal year is still in the stage of “budget call.”
The Department of Budget and Management (DBM) issues the national budget call at the start of the budget preparation year to all agencies and contains the parameters set by the Development Budget Coordination Committee as well as policy guidelines and procedures in the preparation and submission of agency budget proposals.
“What will happen now? It will be a weakened presidency. If before, the Executive can dangle before the senators the release of their PDAF, what other option is available? A threat?” a Senate insider pointed out.
“The major effect (of the SC ruling) is on him and not on the senators, unless absolutely PNoy (President Aquino) will no longer consult them on what projects to pursue which they (Executive) can if they would opt to have it included in the budget call.
“It’s a weakened presidency because tinanggalan sya ng pambili (he cannot wield influence on senators and congressmen),” Senate insiders explained.
The power of the President allows him to make use of the issue of the release of the PDAF in the middle of the year which will be a different case in the year ahead.
“Ano na ang pambili nya ng boto on important issues, issues crucial to him ngayon na wala ng PDAF? Hindi na magagamit ang PDAF,” they said.
It’s possible that the Executive would create a new scheme, give PDAF a new name in the succeeding general appropriations bill (GAB) considering the fact that “what has been declared as illegal PDAF is those allocated for this year,” sources said.
Although technically, lawmakers are rendered to with only recommendatory powers which was “mandatory” under the pork barrel fund system, senators and congressmen could still pursue projects by requesting the availability of funds or appropriation before the proposed President’s budget is submitted before Congress, they explained.
Long-time and high-rank cited the possibility of such scenario, the matter of PDAF taking a different label, in the future by having items being requested by lawmakers in the national expenditure program (NEP).
The Executive could propose lump sum appropriations which members of the House of Representatives and the Senate can tap in identifying their programs.
“Unless doon pa lang sa budget call kasama na yung mga senador, pwede rin yun. But there’s no more discretionary powers for them because they can only recommend in the sense as to where some of these funds should be allocated. And when they do so, they can no longer change that, which means that those LGUs and other sectors seeking assistance or intervention from them on funding requirements after the budget bill is passed is no longer possible,” they explained.
Can the President resort to so-called party system? Will it strengthen the party system?
“Let’s see. Sometimes they dangle dangle the party chairmanship or other positions for prestige or honor. But one thing is for sure, they will have to be more creative now as to how to enrich themselves. In that sense, this one stops commission-basis. It lessened the patronage system,” they said.