Business World, 15 July 2014


The arrest in June of three senators for plunder — two of whom have designs on the highest office of the land and the third considered for 40 years virtually untouchable in Philippine polity — is a first in our democratic history. It is a reason for hope.

Those of us who long considered upright governance as sine qua non for social progress could not have hoped for a better follow-up to the ouster of Chief Justice Renato Corona and the arrest of Gloria Arroyo. Never mind that, like the last two, this was completely unforeseen and just fell on the lap of the Aquino administration as a result of a fortuitous falling out in the Janet Lim Napoles scam organization. Subsequent revelations exposed a massive plunder of the Priority Development Assistance Fund (PDAF) perpetrated on the Filipino nation. The big difference here is that the fraud was documented and corroborated by a detailed paper trail.

Consider the events that had to happen for this to become a viable legal case: that the Napoles-Benhur Luy rift happened at all; that it would deteriorate into a life-threatening kidnapping of Luy; that Luy was rescued before being rubbed out; that Luy kept a detailed separate record of the transactions, payoffs and handoffs; that Luy felt threatened enough to submit it to the Philippine Daily Inquirer which subsequently exposed it; that these transactions had corroboration in official documents; that other whistleblowers crawled out of the woodwork to further corroborate Luy’s account.

Each of these is a mere happenstance. But without each of them, the case would have had no legs to stand on. That all of them happened is a statistical improbability. Technical fanciers will pronounce it “a black swan.” Simpler folks like us will just say “It’s a miracle.” Heaven it seems has put this together but, in its wisdom, left it to us to finish the job.

For the inevitable counterattack has been mounted. The best defense, as they say, is a good offense. First, the familiar “turn heroes into villains”: “Political persecution!” protest the convictees, as if Luy’s hard disk files, the Luy-Napoles rift and the subsequent kidnapping were just elaborate machinations of the sitting government to get rid of enemies. Another is to turn suspected plunderers into victims clutching Bibles and rosaries.

More serious is “traffic the sizzle to ditch the steak”: demand that no one be prosecuted unless all those contaminated are prosecuted. It has the sizzle of fairness but if followed through will jettison the steak of real justice — meting penalty on the guilty. It is a sure-fire avenue to utter futility in the jungle of Philippine politics and jurisprudence where, if you go after everyone, you will catch no one. Even lion prides subscribe to this wisdom: in the eyes of lions all zebras are equally guilty of being tummy-fillers, but unless they zero in on the most guilty because old or impaired, they will go hungry.

In this frenzied atmosphere, the decision by the Supreme Court to declare the Disbursement Acceleration Program (DAP) unconstitutional, which in pre-PDAF times would have been at best considered an error in judgment and meant to do no more than “cease and desist,” is now by deft media spinning equated with the plunder of PDAF. The Budget Secretary has offered to fall on his sword but PNoy has refused, correctly in my view, to accept his resignation. The battle for the soul of this country rages on.

All these graphically illustrate the immense difficulty of self-healing in a compromised democracy. Philippine democracy has been sick for a long time. Prolonged infirmity engenders a constituency of disease whose survival and provenance hangs on the continued infirmity of the host. The main survival strategy of this malignancy is “strategic inclusion”: get everyone, especially key decision-makers, enforcers and judges, in on the action. With everyone contaminated, the pall of omerta descends on the institution and solid evidence cannot be extracted.

This is exactly as Dr. Karl Chua, now of the World Bank, in his University of the Philippines PhD dissertation on corruption, depicted as the modus operandi of the syndicates in the tax collection agency.

Then Internal Revenue Commissioner Rene Bañez paid dearly for trying to run the syndicate out. Instead he was run out when, at the height of the struggle, he was abandoned to the dogs by then President Arroyo. He still faces a case filed with the Ombudsman by his enemies in that struggle. It was a classic case of turning heroes into villains in the eyes of the public.

We are today witnessing a replay of that sad episode, if on a larger stage and over much weightier stakes. Expect a rehash of the disease constituency’s superior prowess in navigating the legal quagmire and exploiting to the hilt every legal loophole.

Now as then, the legal principle De minimis non curat lex (“The wheel of justice turns only over substantive matters”) will be turned on its head. Instead, the wheels of justice will be made to grind to a halt by endless technicalities. Before you know it, it’s 2016 and absolute pardon — the ultimate shield brothers in the constituency of disease accord each other — looms. It is our future at stake; we must not take this lying down.