BACKBENCHER
Rod P. Kapunan
1/5/2013
It is not a question of closing down the biggest money-making agency of the government. Rather, the Presidential Commission on Good Government should never have been created by the so-called "God-sent" hypocritical government. Maybe there was a noble motive, which was to run after the fabled $10 billion loot of former President Ferdinand Marcos, his wife Imelda, and so-called cronies.
Although it managed to recover about P164 billion or $4 billion of the so-called "stashed loot" consisting of prime real estate property, jewelry, paintings, and bank deposits, the agency has yet to convict a single accused despite claims of overwhelming evidence. This in the 26 years of its existence with all the plenary powers vested unto it.
It is this paradox of having recovered portions of the alleged ill-gotten wealth and the failure to convict that has led our people to wonder. They wonder because the rudiment of due process taught them that sequestration could only proceed once the accused has been convicted. Their conviction is the ligament that will serve to resolve the status of those sequestered properties as either stolen or ill-gotten wealth. Without it, they ought to be returned to the owners. They can never be declared res nullius nor can be summarily classified as "ill-gotten".
But in its inability to convict the accused, the court proceeded instead to convict the property and the money just for the PCGG to get hold of them without having to prove anything. That resulted in the denial of due process to all the accused. PCGG chairman, Andres Bautista, despite his extraordinary powers even inverting the time-honored principle that the burden of proving the guilt of the accused is on the accuser, now admits that it is next to impossibility to convict the accused.
Even if there was prima facie evidence to justify the temporary confiscation of those properties pending the final outcome of the case, not one of those accused has been convicted. Yet, many of those items that were arbitrarily taken from them have been either been sold, dissipated or simply bubbled out into thin air. This uncanny circumstance now leads many to suspect that the hypocritically honest government was only after the money.
Despite the fact that those cases have been dragging on for two decades and six years, the possibility of convicting anyone is nowhere in sight. Suffice it to say that the body of the crime or the corpus delicti—the sequestered properties—have long evaporated. Yet, the presidential good-for-nothing commission persists in prosecuting the accused, knowing that the property in question is no longer in their custody and could no longer be presented in court.
Cocky as ever, the government— with the collaboration of the courts— proceeded instead to convict the money and the property, thereby allowing the PCGG to justify its continued sequestration.
For instance, to make sure the Marcoses would not be able to have a legal standing in the very court where they were charged; for them to rebut all the allegations, the court made mandatory the imposition of docket fees to party-litigants without qualification. Failing to cough up that huge amount for them to contest the move of the corrupt Arroyo government to withdraw the $687-million escrow deposit made by the Swiss government with the PNB, the court promptly declared them in default.
The clever scheme thus converted the trial to one of a circus called summary proceedings with the court given a free hand to render a summary judgment on the basis of ex parte proceedings. That in effect resulted in the absurd conviction of the money, and not of the accused. In the end, the corrupt Arroyo government was able to circumvent the condition of the escrow agreement that demanded a final criminal conviction of the accused for their release.
While nobody would want to argue on the rules set by the Supreme Court, the people at the least want those rules to be logical. This they insist because what they perceive as just and equitable must reconcile with logic or should not run counter to common sense. This they say for how could the court demand from the Marcoses the docket fee when it was obligatory for them, as accused, to answer the petition? Yet, for failing to pay the docket fee, they were denied of their right to appear and testify by declaring them in default.
It did not even seep into the crevices of their skull that they were appearing in court essentially as respondents. The issue of ownership has, at the outset, been resolved by the condition in the escrow agreement, viz that failure to secure a criminal conviction against the Marcoses by final judgment meant that the deposit should be returned to their rightful owners/depositors. The Marcoses, on their part, were not asking for the release of the deposits, or were demanding damages, but merely arguing on their defense as accused/respondents, they having made to answer.
For that, the court brazenly short-circuited their right to defend themselves, to confront he witnesses against them, and to present evidence in their defense. Many were shaking their heads because it was an obligation set by the court itself; that failure to answer could result in their being declared in default.
Moreover, the PCGG should have been disbanded upon the ratification of the Constitution in 1987. Section 26, Article XVIII provides that "The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period." In addition, "the sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided."
Instead of observing that constitutional mandate, the Cory-appointed constitutional commissioners drafted a provision giving President Aquino the authority to certify to the reconstituted Congress to pass a resolution extending the life of the PCGG. That provision repeated the idiocy in having to prohibit political dynasties, but conditional to a law which Congress has yet to enact.
(rpkapunan@gmail.com)
Although it managed to recover about P164 billion or $4 billion of the so-called "stashed loot" consisting of prime real estate property, jewelry, paintings, and bank deposits, the agency has yet to convict a single accused despite claims of overwhelming evidence. This in the 26 years of its existence with all the plenary powers vested unto it.
It is this paradox of having recovered portions of the alleged ill-gotten wealth and the failure to convict that has led our people to wonder. They wonder because the rudiment of due process taught them that sequestration could only proceed once the accused has been convicted. Their conviction is the ligament that will serve to resolve the status of those sequestered properties as either stolen or ill-gotten wealth. Without it, they ought to be returned to the owners. They can never be declared res nullius nor can be summarily classified as "ill-gotten".
But in its inability to convict the accused, the court proceeded instead to convict the property and the money just for the PCGG to get hold of them without having to prove anything. That resulted in the denial of due process to all the accused. PCGG chairman, Andres Bautista, despite his extraordinary powers even inverting the time-honored principle that the burden of proving the guilt of the accused is on the accuser, now admits that it is next to impossibility to convict the accused.
Even if there was prima facie evidence to justify the temporary confiscation of those properties pending the final outcome of the case, not one of those accused has been convicted. Yet, many of those items that were arbitrarily taken from them have been either been sold, dissipated or simply bubbled out into thin air. This uncanny circumstance now leads many to suspect that the hypocritically honest government was only after the money.
Despite the fact that those cases have been dragging on for two decades and six years, the possibility of convicting anyone is nowhere in sight. Suffice it to say that the body of the crime or the corpus delicti—the sequestered properties—have long evaporated. Yet, the presidential good-for-nothing commission persists in prosecuting the accused, knowing that the property in question is no longer in their custody and could no longer be presented in court.
Cocky as ever, the government— with the collaboration of the courts— proceeded instead to convict the money and the property, thereby allowing the PCGG to justify its continued sequestration.
For instance, to make sure the Marcoses would not be able to have a legal standing in the very court where they were charged; for them to rebut all the allegations, the court made mandatory the imposition of docket fees to party-litigants without qualification. Failing to cough up that huge amount for them to contest the move of the corrupt Arroyo government to withdraw the $687-million escrow deposit made by the Swiss government with the PNB, the court promptly declared them in default.
The clever scheme thus converted the trial to one of a circus called summary proceedings with the court given a free hand to render a summary judgment on the basis of ex parte proceedings. That in effect resulted in the absurd conviction of the money, and not of the accused. In the end, the corrupt Arroyo government was able to circumvent the condition of the escrow agreement that demanded a final criminal conviction of the accused for their release.
While nobody would want to argue on the rules set by the Supreme Court, the people at the least want those rules to be logical. This they insist because what they perceive as just and equitable must reconcile with logic or should not run counter to common sense. This they say for how could the court demand from the Marcoses the docket fee when it was obligatory for them, as accused, to answer the petition? Yet, for failing to pay the docket fee, they were denied of their right to appear and testify by declaring them in default.
It did not even seep into the crevices of their skull that they were appearing in court essentially as respondents. The issue of ownership has, at the outset, been resolved by the condition in the escrow agreement, viz that failure to secure a criminal conviction against the Marcoses by final judgment meant that the deposit should be returned to their rightful owners/depositors. The Marcoses, on their part, were not asking for the release of the deposits, or were demanding damages, but merely arguing on their defense as accused/respondents, they having made to answer.
For that, the court brazenly short-circuited their right to defend themselves, to confront he witnesses against them, and to present evidence in their defense. Many were shaking their heads because it was an obligation set by the court itself; that failure to answer could result in their being declared in default.
Moreover, the PCGG should have been disbanded upon the ratification of the Constitution in 1987. Section 26, Article XVIII provides that "The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period." In addition, "the sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided."
Instead of observing that constitutional mandate, the Cory-appointed constitutional commissioners drafted a provision giving President Aquino the authority to certify to the reconstituted Congress to pass a resolution extending the life of the PCGG. That provision repeated the idiocy in having to prohibit political dynasties, but conditional to a law which Congress has yet to enact.
(rpkapunan@gmail.com)
