Guingona is right on Napoles

By Dean Tony La Viña

Should Janet Napoles be compelled to testify before the Senate Blue Ribbon Committee on the PDAF scam? Or is this unwise, given the fact that she, with others, have now been charged for plunder and other crimes before the Ombudsman?

Senator TG Guingona has invoked the Senate’s prerogative to call any witness before it for investigations in aid of legislation. He has argued that the Senate investigation on the pork-barrel fund scam would not be complete without the testimony of Napoles, and that he would not allow anyone to obstruct the bid of his committee to ferret out the truth.

Senate President Franklin Drilon, on the other hand, refused to sign the subpoena for the so-called “Pork Barrel Queen” in deference to the opinion of the Ombudsman Conchita Carpio Morales who earlier said that it would not be advisable for Napoles to come to the Senate. The Ombudsman later modified this to say that calling Napoles to testify is up to the collective wisdom to the Senate.

My understanding is that this issue will now be brought to a vote before the plenary of the Senate.

Let us examine the jurisprudential and legal support both sides have invoked to support their positions.

The power of the Senate to conduct legislative instigations is enshrined in Section 21 of Article VI of the Constitution. Explaining the rationale behind this authority, the pre-eminent constitutionalist, Fr. Joaquin Bernas, citing the landmark case of Arnault vs. Nazareno, said that “The power of legislative inquiry is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who might possess it.”

On the other side, Justice Secretary De Lima took the cudgels for the Ombudsman by invoking the confidentiality rule under Rule 5 of the Ombudsman Rules of Procedure Rule 5 to the effect that “When circumstances so warrant and with due prudence, the Office of the Ombudsman may publicize in a fair and balanced manner the filing of a complaint, grievance or request for assistance, and the final resolution, decision or action taken thereon: Provided, however, that prior to such final action, no publicity shall be made of matters which may adversely affect national security or public interest, prejudice the safety of witnesses or the disposition of the case, x x x ” This supplements the Ombudsman Act (R.A. 6770) which allows the Ombudsman, under its rules and regulations, to determine what cases may not be made public.

In my view, the weight of authority seems to tilt heavily in favor of the power of the Senate to summon Janet Lim-Napoles to testify over and above the confidentiality rule being invoked by the Ombudsman and her supporters.

First. As pointed out by retired Chief Justice Reynato Puno, this constitutional right to investigate in aid of legislation cannot be defeated nor diminished by any confidentiality rule, which is only found in the rules of procedure of the Office of the Ombudsman. An administrative rule can never negate a constitutional grant of power. Indeed in the hierarchy of laws, the Constitution prevails over a mere rule of procedure of an administrative body.

Second. The weight of jurisprudence also veers decidedly in favor of the importance of Senate investigations over other kinds investigations, be it judicial or quasi-judicial. The case of Standard Chartered Bank vs. Senate Committee on Banks, Financial Institutions and Currencies is instructive. Here, the Court categorically stated that the mere filing of a criminal or an administrative complaint before a court or quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint.

Third, as a consequence of the previous arguments, a Senate decision that emasculates its own authority will be precedent for other cases. If Napoles is not subpoenaed, others in the same category (those where charges have been filed but no probably cause yet determines) should be excused from a Senate investigation. Napoles cannot be treated as if she is an exception to the rule. If she is not compelled to testify, then the Senate would have adopted what would be become an infamous Napoles rule that would effectively decapacitate Senate power and independence.

Finally, there is an important political function that the Senate investigation fulfills. The truth is that the results of the criminal process will probably not be known for five, maybe even up to 10 years with appeals expected if there are convictions. The Senate investigation can however be completed once Napoles testifies even if she invokes her right to self-incrimination, which is speculative at this juncture. Without her testimony, the Senate cannot come up with conclusions and a final report, as that would be unfair to Napoles. Basic fairness dictates that she should be given a chance to give her side. It does not matter if she says nothing when she appears as long as she has been invited and asked the right questions. Then the committee can make findings about her and not be unfair. Without subpoenaing her and asking her questions, the Senate cannot make conclusions about her role and therefore about anybody else.

Simply put, compel Napoles to testify before the Senate. The transcendental importance of the subject of investigation and the very high public interest in her testimony and the resultant conclusion of the Senate investigation far outweighs the concerns about her appearance.

notes on makati the rally

i had not planned to go, thinking that katrina could move more freely, even help out backstage as she did in previous rallies, if she didn’t have her nanay to make alalay, pero ang bumungad sa akin sa facebook that morning were many statuses altogether warning of evil forces out to hijack the scrapPork movement, the alleged agenda being to shift public anger away from charged plunderers enrile, estrada, revilla over their thieving use of millions of PDAF bucks, and to redirect the fury toward the president and his budget sec abad for channeling billions in savings into a DAP for porkbarrel-like purposes, which (it is feared) could only lead to oust-aquino conspiracies fuelled and funded by the sinister forces embodied by enrile estrada revilla if not the binays and the marcoses, among other threatened oligarchs.

it reminded me that from the first luneta rally, the call was already for the abolition of ALL pork.  this was long before the DAP expose(y), when all we were going on was leonor briones’s and neri colmenares’s detailing of the 2014 budget’s trillion pesos in presidential pork that included billions in unspecified special purpose funds from which the PDAF is drawn.  even then, there were dissenters who carefully, deliberately, went on the record to say they were for reform, not abolition, but that they were going to luneta anyway.  this time, it would seem, they chose to stay away and just nag, kibitz, from the bleachers.

i wondered, even then, why they did not organize their own march instead, in support of the president’s promise to reform the pork barrel system.  and i ask now, why do they not organize their own rally instead, in support of DAP, i.e., in support of the president through thick and thin, through tuwidnadaan and likoliko, simply because there is no one better and an ouster would mean a dreaded binay presidency?  the pro-PNoy contingent should be a huge one, if we go by the trust ratings.  or maybe, not all might be willing to surface as they could be suspected of vested interests, e.g., kumikita, nakikinabang, directly or indirectly, somehow, somewhere, sometimes, sa pork barrel system?

because, seriously, if their disapproval of the abolish-all-pork movement is purely the major major fear of an underhanded hijack by the marcoses and enriles and estradas that would install binay and UNA, then they are only contributing to that very possibility by criticizing the movement from the outside, i.e., by being divisive rather than being part of the united front and helping keep the devils at bay from the inside.  nakakahinayang dahil karamihan sa mga negang ito sa social media ay kabilang sa kulturati’t literating tinatawag, napakarami nilang followers, ang daming bilib, naniniwala, sa kanila, and i’m not even counting the purely sipsip.

at tungkol naman sa puna na sa kababanat sa pangulo at sa kanyang pork, hindi na nababanggit sina enrile, revilla, at estrada, na tila daw pinapawalang-sala na ang mga ito…   on the contrary.  huling huli na ang mga ito, may nakalap nang mga ebidensiya, may kaso nang nakasampa sa ombudsman, and we are trusting that the justice system will finish the job.  meanwhile, puwede nang ibaling ang atensiyon sa iba pang legislators na hinihinala rin ng publiko na kumita rin ng limpaklimpak na kickback sa PDAF at DAP, pinagnakawan rin ang bayan, ngunit kung magsalita at umasta ay para bagang mga santo santito.

at totoo rin naman na sa pangulo, higit sa lahat, nakatuon nakadiin nakatutok ang pinakamatitindi at nanggagalaiting puna.  after all, it is the executive department that has the power to abolish all pork and investigate and take to court all plunderers.  also, it is the executive department that is called on to come up with an alternative strategy, clean and coherent and competent, for inclusive economic growth.  alas, he has instead, along with congress, asked the supreme court to lift the TRO on the remaining PDAF.  mapapatanong ka: sino kaya talaga ang boss niya?

as for the suspicion that the rallies are being funded by forces out to oust the prez… as far as i know, the groups comprising the broad scrapPork coalition, from left right and center, all contribute what they can to the cause.  and from what i saw of the makati rally, i’m convinced there’s no money going around to either mess up or disrupt or hijack the movement.  if anything, the makati rally was such a level-up from the luneta march-cum-picnic where people and groups were scattered and largely left to their own devices.

in fact it’s the best rally i’ve been to yet.  it didn’t feel like a small crowd that gathered around the stage, and it was quite a mixed crowd, seemed like a micro of the macro that went to luneta, including the guardians who went on stage briefly to express their support.  the messages from the different sectors were focused.  mini-lectures by liddy nakpil, ganni tapang, and leonor briones, complete with pie charts atbp., in simple tagalog that everyone could understand, were enlightening, reinforcing, affirming.  a brief but pointed speech from national artist for literature bien lumbera promised the president na hindi ito tatantanan at patuloy na uukilkilin hanggat di naa-abolish ang pork.  mae paner was a riot — oo nga, ninoy, tulungan mo naman kami… lol, laughter to kill the pain.  and the music, especially the songs of the tres marias (cooky chua, lolita carbon, and bayang barrios), songs of love for nation, touched deeply.  and coritha singing her anthems to freedom back in the bad old days of martial rule was an eloquent reminder of how little has changed since that freedom was won.

here’s a quickie kuwento from mae paner, swiped (with her permission) from a facebook thread that was an interesting — even upbeat, despite the fears and disagreements — postmortem on the ayala rally.

Mae Paner : sa MPM@Ayala kasama ko ang mga taong simbahan may mga militar na tahimik na sumusuporta, at ang mga kabataan na maalab ang damdamin di mawawala, tried and tested na mga manggagawa, magbubukid, at propesyunal. kasama rin ang mga netizens. meron pang kasamang mga nasa gobyerno- naks! ilang milyonaryong bonggang-bongga, ang cute ng mga matronang mayayaman na mga naka suot ng snout na bago magpakuha ng litrato ay nagsabing we are against pork but pro PNoy ha? nakakatuwa ang mga empleyado ng makati na di alintana ang ulan at talagang tinapos ang programa. at syempre touched ako sa mga kapwa ko artista. natuwa ako sa paglilinaw ni cookie chua kung oust PNoy daw ba ang ng rally. at nung magtiwalang HINDI ito oust PNoy ay nagpaunlak sya. at ang parte nya w bayang barrios at lolita carbon ay highlight ng gabi. mabuhay kayong tres marias. ang konek nila sa audience ay super bongga. pero may mga tao akong na-miss na rally na ito. ang ilang dati kong mga kasamang hindi ko na nakikita. na-miss ko na kayo. promise! malungkot dahil nung i-suggest ang inyong mga pangalan, may mga nagsabing huwag muna sila ngayon. sana sa future may dahilan ulit para magsama tayo. naalala ko ang isang line na isinulat ni Rodolfo sa pelikulang juana c. the movie, “HIndi lahat ng kakampi mo ay kakampi mo sa lahat ng bagay.”

true.  but, yes, good to keep lines of communication open.  dapat ay kayang pag-usapan nang mahinahon at bukas-loob ang bawat isyu na humahati sa kilusan kung ibig nating makamit ang pinakaasam na pagbabago.  pag-uusap na totoong level-up.  sabi nga ni junie kalaw the environmentalist in an essay on the new politics, post EDSA (1989) based on the concept of wholeness (the whole is more than the sum of its parts; ang sakit ng kalingkingan ay sakit ng buong katawan):

There are two ways of effecting change: revolution and transformation. In the new politics, transformation is the way to wholeness. Transformation involves the synthesis of opposing forces on a higher level of wholeness. For instance, the conflict between communism and capitalism can only be resolved at a higher level of consciousness. It is the task of politicians to take from each ideology its life-affirming features and to come up with a new ideology that will unify the divided whole. It is a design process, this synthesis and creation of alternatives. It will be the supreme political skill.

[Exploring Soul & Society: Essays on Sustainable Development. Anvil, 1997. 126-127]

*

Hijackers of the anti-pork movement 

The sum of our “fears”: Defending pork by attacking the Left

Eight concrete calls of the #SCRAPPORK Network

notes on luneta the rally 

A permanent solution to the broken budget System

By Benjamin E. Diokno

… Recent events show what’s wrong with the present budget system. After almost a year of budget preparation (January to July) and budget authorization (August to December), the President may choose to reorder the budget and implement it any way he wants. In 2011, the President, acting on the recommendation of the Budget Secretary, created a P72.2-billion Disbursement Acceleration Program (DAP).

The DAP was the source of P1.1 billion in additional pork barrel a few months after the senators voted to convict former Chief Justice Renato Corona last year.

Except for four senators — Ping Lacson, Joker Arroyo, Pia Cayetano, Bongbong Marcos, and Miriam Defensor — all 20 senators received an amount ranging from P44 million (for Teofisto Guingona) to P44.5 million (for Koko Pimentel) to P92 million (for Juan Ponce Enrile) and P100 million (for Frank Drilon). The other senators each received P50 million.

Call it anything you want — a bribe, an incentive, or a reward — but clearly, this suggests that the market-clearing price of a vote convicting Corona is roughly P50 million. The congressmen who voted to impeach Corona got their own fair share. Mr. Abad has yet to reveal the list of congressmen who received the additional pork and how much.

Mr. Abad revealed that the additional pork came from DAP which was introduced in 2011 and reintroduced in 2012. Curiously, no such budget items exist in the General Appropriations Acts (GAA) of 2011 and 2012. It came about as a result of the almost limitless power of the President to slice and dice the GAA to generate large lump sums as a source of discretionary spending.

In a sense, this confirms the huge pork barrel at the discretion of the President. In 2011, as part of the P72-billion DAP, Mr. Aquino released an additional P10 billion to the National Housing Authority, P5.4 billion for the Department of Agrarian Reform, P8.6 billion for the Muslim Mindanao Autonomous Region, and augmented the Internal Revenue Allotments by P6.5 billion.

The preparation of the DAP was done at the inner sanctum of the Department of Budget and Management (DBM), away from the public’s eyes and definitely without the participation of members of Congress.

The following questions might be asked: How were the new budget commitments arrived at? Where did all these monies go? Who were the service providers? Were they chosen through competitive biddings? And who were the real beneficiaries?

For 2012, the DAP reemerged. Because the budget was not carefully reviewed by Congress as before and because project implementation was still slow, the President realigned and reshaped the budget so some new projects could be funded. Some of these projects were the Department of Tourism and the Department of Public Works and Highways (DPWH) projects (P5 billion), premium payments for teachers (P4 billion), Tulay ng Pangulo (P1.8 billion), rehabilitation of regional health units (P1.96 billion), the Department of Education’s public-private partnership for school infrastructure (P4 billion) and Bangko Sentral’s capital infusion (P20 billion).

Now, it is the Commission on Audit’s responsibility to find out how these pork barrel funds — congressional and presidential — were allocated and disbursed. Was the money spent well, leaked out with the help of some corrupt NGOs (not necessarily Napoles’), or did it end up in the pockets of some legislators?

Most Filipinos, especially those who pay their taxes diligently, are furious at their leaders for misallocating, misusing, and directly partaking of their taxes.

There is hope. But only if the Aquino administration will act on some real budget reform proposals like the Budget and Impoundment Control bill and the Freedom of Information (FOI) bill. He should also commit to strengthening the budget review staffs of both Houses of Congress.

But there are reasons to despair, too. First, the President has shown his willingness to defy the overwhelming public outcry against the pork barrel. He appealed to the Supreme Court for the lifting of the TRO on the release of the balance of the Priority Development Assistance Fund for 2013.

Second, his allies in House of Representatives are equally defiant and totally unresponsive to people’s preference. The House passed the P2.268 trillion President’s Budget for 2014 with the P25.4-billion pork barrel intact — hidden in the budgets of various departments, the bulk of which will go to DPWH. The Department of Health and the Department of Labor will each get P3.69 billion, while the Department of Social Welfare and Development will receive P4.71 billion.

The Department of Education will receive an additional allocation of P1.02 billion, while the Commission on Higher Education will get P2.67 billion for scholarship programs.

The redeployment of the budget from PDAF to line ministries is illusory. But it doesn’t fool the general public. In practice, there is no guarantee that these new line items will be released by Malacañang. Under existing budget rules, the President retains his power to cherry pick, to choose which budget item to release and which to withhold.

Third, the President refuses to integrate into the regular budget the following off-budget sources of revenues: the P130-billion Malampaya Fund, the P12.5-billion motor vehicle users’ charge, the Philippine Amusement and Gaming Corp. social fund and the Philippine Charity Sweepstakes Office’s charity fund.

The current pork barrel controversy, and the perceived and real abuses of the presidential power to disburse, have given President Aquino III a rare opportunity to permanently fix the flawed budget system. Such opportunity, if seized, will strengthen the weak political institutions. Otherwise, elections will forever be available only for the rich and Congress will forever be subservient to Malacañang.

It would be a monumental tragedy if Mr. Aquino would let this opportunity to fix what’s wrong with the budget system go to waste.

Dr. Diokno is Professor of Economics at the U.P. School of Economics and was Secretary of Budget and Management.

DAPork, drilon, poverty

on top of PDAF, meron palang DAP.  Disbursement Allocation Program.  heh.  more like Da Additional Pork, huwag nang i-deny.

But Senate President Franklin Drilon said the DAP was primarily a “stimulus fund” meant to address criticisms in the first 18 months of the Aquino administration that economic growth was only half the 7-percent gross domestic product targeted by the government to make any wealth expansion meaningful to a broader base of Filipinos.

Drilon said that the P100-million DAP he received was used to build a convention center and widen roads in Iloilo as part of his home province’s bid to be one of the sites for the Asia-Pacific Economic Conference summit in 2015.

“The issue here is whether the funds were misused or not. I hope the public will listen to our explanation that we did not pocket everything,” he said. [bold mine]

WE DID NOT POCKET EVERYTHING!  ahah!  slip of the tongue?  so you did pocket some of it, yes?  like maybe 50 %? 70 %?

on teleradyo yesterday, vic lima listed the projects that chiz escudero spent his DAPork on, and on that basis pronounced him not-guilty of misusing DAPork.  excuse me, right now all i care to know of every senator and representative regarding PDAF and DAPork is, did s/he or did s/he not get commissions / kickbacks from the agencies and/or contractors concerned?  if yes, how much each time, and how much all in all over time?  what did s/he do with the money?  break it down, please.

it doesn’t matter what abigail valte is saying right now on live tv, that DAP is not pork.  what matters is that the senators thought it was pork, and they spent it like it was pork.  GOOD JOB, GUYS.

the bottom line is, we have yet to hear any porker senator or representative speaking up and saying s/he has or has not received any kickback / commission from his / her PDAF or DAPork.  so drilon’s “we did not pocket everything,” slip of the tongue or not, is quite a gem to be treasured.  at last, meron nang umamin, kahit pa hindi sinasadya ang pag-amin, kahit tila nadulas lang, puwedeng puwede na rin.

meanwhile, i imagine it’s all very busy behind the scenes for the entire network of porkers, trying to clean up acts that go back a long way, maybe even cleaning out bank accounts, holding fire sales, antedating documents, but quietly, quietly… because walls, and celfones, have ears.

meanwhile, senate prez drilon seems to think that giving up their PDAF will be enough to placate the public.

“While an actual vote has yet to be officially taken, a majority of our senators, myself included, have publicly declared that we will do away with our PDAF allocations in 2014 in response to the people cry for change,” Drilon said.

“There is no turning back as far as the pork barrel system is concerned. We have to institute these reforms in order to regain our people’s trust and conference,” he said.

if that’s trust and confidence (huy, inquirer!), the only thing that would bring back our trust and confidence in you, mr. drilon, would be if you set the example and voluntarily released for public consumption a fully documented accounting of how you spent your pork barrel from 1995 to 2007, and from 2010 to 2013, and how much went back to you as kickbacks / commissions — no doctoring, please, warts and all — and maybe your resignation as senator, unless of course you change your mind and allow napoles to testify in the senate, take the people’s side in this struggle for good governance, atbp., let the chips fall where they may.  but napoles or not, resign or not, you’d have to give back the money, of course, deducting only what expenses you can justify to the people.

the most depressing thing about the DAP exposey really is not that it distracts from the PDAF issue — because it does not, they are of a piece — but that it confirms yet again the saddest shortcoming of the aquino admin, i.e., the lack of a vision for nation, and therefore the lack of a development strategy, and a concerted effort, to achieve that vision.

asked at a presscon why the savings, the DAP fund of some 72 billion bucks, did not go instead toward poverty alleviation measures, da abigail replied, but there is so much criticism of the conditional cash transfer, referring to DSWD sec soliman’s dole-outs to the poorest of the poor.  ahahaha.  talagang yun na pala yon, next to trying to attract foreign investors to provide jobs.  so pyestang pyesta lang the government agencies and members of the senate and house of reps who are free to decide what infra to ramp up spending on, the faster the better, kanya-kanyang diskarte, in the name of “priority development assistance.”

in the context of worsening poverty countrywide, the question is, what development, and for whom?