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Wednesday, September 19, 2007

Sept. 12, 2007

Today, the monster that hounds the Philippines' justice system again reared its ugly head. If it can happen to the most powerful of them, how will ordinary, untitled citizens fare under the same prostituted procedure of what is supposed to be fair, just, and most of all, legal struggle when pitted against the manipulative machinations of one whose very existence depends on how much power it can muster to thwart all efforts towards arriving at the truth, never mind if in doing so it destroys the last few fibers that bind this once proud and DECENT society and flushes what remains to be the last functioning institutions down to the nethermost bottoms. While many pundits have, in other fora, discussed at length how political pressure obviously from Estrada’s nemesis and replacement as the culprit in the guilty verdict, I will try my best to veer away from that angle and base my analysis based purely on merits.

First, the law:

Sec. 2. Definition of the Crime of Plunder; Penalties. - Any public
officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. [As Amended)



The acts referred to are in this Section:

d. "Ill-gotten wealth" means any asset, property, business enterprise
or material possession of any person within the purview of Section two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

1. Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;

2. By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3. By the illegal or fraudulent conveyance or disposition of assets
belonging to the National government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

6. By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

The charge:

“…ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS…” of the following crimes:

1. P545M in jueteng protection/kickback
2. P130M tobacco excise tax
3. P189.7M commission from Belle shares
4. P3.233B Jose Velarde acount


------------------------------------

ANALYSIS:


Plunder, which got its brand new definition just today, can now also refer to taking money NOT belonging to government (the acts are enumerated in Sec 1.d.1). Take note that Sec 1.d.1 and Sec 1.d.6 are similar except that in Sec. 1.d.6, it does not specify whether funds are public or private but it is qualified that there must be damage and prejudice [of] the Filipino People and the Republic.

In its decision, Sandiganbayan's latest entry to legal jurisprudence considers jueteng payola or, as referred to in police parlance as "orbit", as public funds. Well, it could as well be true, when you have top government officials, okay, presidents Erap and Gloria specifically, as main beneficiaries and jueteng protectors, Or governors like the "demonstrably corrupt" Chavit Singson who finances its operations, and an unbelievably huge number of mayors, congressmen, councilors, provincial board members, Police regional and provincial chiefs, station commanders, hell, even barangay captains and tanods who for decades depended on this, their "meager allowances' to build them a mansion or two, afford them the flashiest SUVs, a tryst here and there with their favorite starlets and even campaign money (or for paying Gloria's favorite phone pal) come elections. In THAT context, I concede that jueteng IS indeed, "government" money.

It doesn’t violate Sec.1.d.1 which contemplates violation against public money. Neither does it violate Sec.1.d.6. Granting Erap’s purpose was to enrich himself, it had to be accompanied by “damage and prejudice”. There is none, in fact, the shares of Belle Corporation soared to record levels and at that point made huge profits for the funds had the managers harvested at that precise moment.

Secondly, this decision shows the kleptocratic tendencies of this bogus government have rubbed off with Sandiganbayan, not only in the case of this illegal numbers game which now has spawned several government-sanctioned-versions-that-smokescreens-the-real-thing (hey, didn't that trigger the falling out between partners Chavit and Atong and later Chavit and Erap?), but also with the two biggest state pensions: GSIS and SSS. The two giant funds are private alright, any fruits from the same are, by simple logic, private, too. Sandiganbayan’s decision merely reflects how our leaders regard people's money, which they are only mandated to manage and preserve under trust obligations, as if it were their own. What insatiable greed!

The Supreme Court, in the 1958 case between the Archbishop of Manila vs. SSS, seeking exemption from SSS coverage, the Court said “The funds contributed to the System created by the law are not public funds, but funds belonging to the members which are merely held in trust by the Government”

Granting Estrada may have spoken with the Funds' executives on the benefits of investing in a certain stock, and on the side receive generous commissions from the issuer for the effort, it was still the executives' call, backed by resolutions from their corresponding boards, whether such an investment could actually be profitable. In finance-speak, it's called "extreme due diligence". It's SOP when you gamble in the tens or hundreds of millions. Now, did I say gamble?

Even the buy or sell expert advice of Wall Street's big boys is just that: advice! But in the case of Belle Resources, they DID make profit, didn't they? If Gloria does the same thing today, but the stock fails to produce good returns, or worse, sheds off some of its value, will this jurisprudence still apply? Of course not, unless Gloria demands for a commission whatever the outcome (which she probably does most of the time), there is no legal foot on which this argument can stand much more convict a suspect by an act which profit outcome is never definite.

But that's beside the point. It doesn't change the fact that SSS and GSIS are private and are not in any way the purpose which the law's framers had in mind when they defined plunder. But wait, it just occurred to me now, wasn't Erap the author of the Senate's plunder law? His being the defense witness far outweighs whatever several dozens of prosecution witnesses they can produce. Technically, he was the legislature’s expert authority on plunder.

The sheer number of witnesses either side can produce is not always indicative of the truth (or whatever that side purports the truth to be). Sure, the prosecution produced many witnesses, too many in fact, on the bank transactions alone when the purpose was to prove that Jose Velarde was Joseph Estrada. They totally disregarded the fact that it was Jaime Dichavez’ letter, produced by the bank itself, that instructed the manager to open an alias account.

I find it stupid that the court did not believe the testimony of the bank manager who opened the account and gave the convenient excuse that there was no proof that it was Dichavez himself who opened the account. On the same note, was there any evidence that it was Erap who actually opened it?

With respect to Jinggoy Estrada, according to Gov. Singson, he was the “Jing” listed as an expense in the ledger for P1,000,000.00. It was Gov. Singson’s testimony that FPres. Estrada (after discovering that entry) forbade Gov. Chavit Singson from giving any further share in the jueteng protection money to Jinggoy Estrada and that it will be up to FPres. Estrada to give Jinggoy Estrada a share. For this reason, Gov. Chavit Singson and Jinggoy Estrada hid the fact that Jinggoy Estrada was the collector for the Province of Bulacan and that the latter was receiving P1,000,000.00.

To begin with, the prosecution’s theory that Jinggoy Estrada had to keep his participation in the jueteng collection a secret from his own father belied the allegation that Jinggoy Estrada’s participation in the jueteng scheme was that of a principal or a co-conspirator. The grant of bail to Jinggoy Estrada was anchored on this fact advanced by Gov. Singson in his very own testimony. Although prosecution witness Gov. Singson, and the other witnesses who were under his employ, testified that there were instances that they collected or received money from Jinggoy Estrada,

there was no testimony to the effect that they saw Jinggoy Estrada subtracted
his share from jueteng collections or in any other way received a share from the
jueteng collections. This Court further found it difficult to believe that
Jinggoy Estrada, who was not even a resident of Bulacan, was the collector for
Bulacan. Gov. Singson associates Jinggoy Estrada with Viceo allegedly from
Bulacan. Who is Viceo? Why was Viceo not charged if it was true that jueteng
collections from Bulacan came from him before they passed the hands of Jinggoy?
There was no evidence at all that the money Jinggoy Estrada turned over to Gov.
Singson or the latter’s representatives was part of the jueteng protection money
collected from Bulacan or that he received funds from a certain Viceo.

In this case, the justices were selective in their “reasonable doubt”.

***1. The justices said Jinggoy is not from Bulacan, why should he be collector for Bulacan? True. But Singson is also not from Pampanga or Tarlac or Baguio or La Union or Bataan or Zambales or friggin wherever, except Ilocos Sur! Why should they believe him when he said he was collector for Erap in those provinces?

***2. Sandiganbayan also says no one testified that they saw Jinggoy deduct money from his supposed collections. Again, true. But did anyone testify that Erap got money from the alleged accoutant, Yolanda Ricaforte, or Erap himself withdrawing from Ricaforte’s bank accounts? The same logic produced different results: they doubted Jinggoy was involved because no one saw the exact act. It was the opposite in Erap’s case. Am I stupid or what?

***3. Sandiganbayan even doubted Chavit’s testimony on a certain Jesse Viceo who supposedly was collector for Bulacan who then surrendered collections to Jinggoy. The court asked why Viceo wasn’t even charged or why the prosecution didn’t present him, thus, they decided they had to acquit Jinggoy because they doubted Chavit’s testimony. Correct. But was Bong Pineda charged or presented to the court? Alleged in Chavit’s testimony as the one who originally collected for Estrada, take note here, Singson never mentioned what Pineda’s occupation was, mere dishonesty in this point could have damaged all of Singson’s testimony. He deliberately called them “collectors” and not “jueteng lords”.
“The Court notes that Gov. Singson in the course of his testimony mentioned certain persons who collected jueteng money aside from himself and his employees; namely, Anton Prieto, Bonito Singson (his brother), Bong Pineda, Charing Magbuhos, Celso de los Angeles, Jesse Viceo, Romy Pamatmat and a certain Sanchez of Batangas. In the same vein as that when they decided Jinggoy’s fate, why didn’t the justices cite the same reasons, why aren’t these people charged or why did the prosecution not present them as witnesses as is should have considered in Erap’s? Again, Singson didn’t say they were jueteng lords, just collectors. Big lie! Even the justices know it is, for a fact.

In partial summary, look at the justices’ blunders carefully, while Singson’s testimony was considered Gospel truth in the case of Erap, they found the same witness incredible in Jingoy’s and Serapio’s case. Dishonesty in any testimony is sufficient ground for trashing the same to favor all the accused. One dishonest sentence from a witness is enough to void his whole testimony.

Remember, “Guilty beyond an Iota of doubt?”

Look, I’ve discussed just one paragraph of the 221- page decision (520 KB filesize in Notepad)!

More later. (If I don’t get lazy)

1 Comments:

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