Friday, 07 January 2011 16:35
I admit to be much enthused when former Chief Justice Hilario Davide Jr. told me of his accepting the chairmanship of the proposed Philippine Truth Commission at the President’s inauguration last June. I promised to share with him Pamusa’s 4-year experience, research and studies of anticorruption strategies and tools in conjunction with the UN Convention Against Corruption (UNCAC) and other international or multilateral agreements as well as serve his adviser.
I’d hasten to admit my disappointment though when in addition to Davide, two retired SC justices and two lawyers were appointed to compose the 5-member body. I didn’t expect an all-lawyer commission with Davide running it as a court of law and his unwillingness to assert his powers and prerogatives as chief executive officer.
Instead, decision-making had to be submitted to commission meetings en banc which would guarantee the same failure of anti-graft and corruption bodies in the past.
Pamusa’s volunteer counsels almost unanimously (which seldom happens among lawyers) asked me to inform President Aquino to await the Supreme Court’s decision on the motion for reconsideration for voiding the PTC, which I see as a blessing in disguise. I share Emil Jurado’s opinion on the move to revise Aquino’s Executive Order No. 1, who wrote:
“Justice Secretary De Lima claims that a new executive order is being drafted to replace the ill-fated Executive Order No. 1, deemed unconstitutional by the Supreme Court for being violative of the equal protection clause of the Constitution.
“I have no idea how De Lima and the Palace lawyers of ‘lesser legal minds’ will craft the new order.
“Why can’t Malacañang just adopt the suggestion of presidential adviser on legal concerns, retired Court of Appeals Justice Magdangal Elma? Elma said that the Presidential Commission on Good Government can put closure to the scams and scandals that hounded the nine-year administration of Mrs. Arroyo.”
Any Malacañang move to go around the Court’s decision to resuscitate the PTC is simply a lawyer’s argument that the EO was correct and the Court wrong. This would be seen in bad light by the general public especially the media when the President is being accused of being hostile to the Court if PR 101 were considered.
The President has actually the high ground. If the Court’s intention is to cover up GMA et al. from PTC investigation, she has actually been pushed from the “frying pan into the fire” because more effective international anticorruption tools are now available to effectively take her and husband, their immediate family members and co-conspirators to account for perpetrating the worst graft and corrupt practices in the country’s history.
The members of the Court might’ve also unwittingly provoked the President and decent Filipinos to subject them to investigation and recovery of unexplained income in acquiring properties abroad and/or opening foreign bank accounts through the World Bank-UN Office on Drugs and Crime “StAR” (Stolen Assets Recovery) Initiative, which has attracted the cooperation of the Millennium Challenge Corp. (MCC), other U.S. federal agencies and international anticorruption bodies manifested in last month’s WB-sponsored International Corruption Hunters Alliance (ICHA) attended by Sec. De Lima, her Usec Jose Vicente Salazar and me.
Thus, even if the Court reverses itself to uphold the PTC, unintended consequences have begun to run making the PTC redundant and an added bureaucratic layer causing internal conflicts and delays for fighting graft and corruption to fail.
At this juncture, let me cite a statement of Rep. Daniel Issa (R-California), incoming chair of the U.S. House of Representatives’ committee on oversight and government reform, its blue ribbon committee. Issa said he needs CPAs more than lawyers to investigate corruption during the Obama administration. The need for CPAs conforms to the latest tools in the search and recovery of stolen government resources given in the WB-prescribed “A Practitioner’s Handbook on Tracing Stolen Assets.”
It is the basis of a cooperative framework Pamusa is working on with the StAR Initiative and MCC. What’s needed really is for the President to establish an efficient link with the StAR Initiative which can be handled by Pamusa, a U.S. nonprofit. This won’t overload with additional duties and responsibilities the members of his administration, e.g. Sec. Leila de Lima on whose shoulders the prosecution of G&C cases will rest if the PTC were allowed to proceed with investigations that will primarily duplicate the Ombudsman.
By the PCGG simply appointing Pamusa its attorney-in-fact will better the above purpose. Pamusa probably can raise funds for its operations, thus won’t be spending government funds in the search and recovery of stolen Philippine resources in cooperation with the StAR Initiative under the UNCAC and related international anticorruption agreements.
I can see U.S. federal agencies as strong winds of the StAR Initiative behind its sails which forebode the end of graft and corruption that Filipinos dream to source instant wealth, to wit:
1. The WB-prescribed “A Practitioner’s Handbook on Tracing Stolen Assets” includes Dave Melton’s book of “Accounting Guide to Asset Tracing.” The book defines asset-search in the context of divorce proceedings as “an accounting process that traces an asset from its separate property beginning through all its mutations and demonstrates that the resulting asset in existence of the date of divorce is either separate, marital, or a combination of both.
2. By forensic audit the USDOJ has an effective tool the StAR Initiative can use to trace from agreed baselines such as income tax returns (ITRs), statements of assets, liabilities and net worth (SALNs), other personal and corporate financial reports when the growth of assets or net worth is within the realm of statistical probability, or boosted by “a process of series of actions through which income of illegal origin is concealed, disguised, or made to appear legitimate (main objective), and to evade detection, prosecution, and taxation.”
To make recovery of Filipinos’ and ex-Filipinos’ stolen assets worthwhile for the U.S. whose assistance is a condition sine qua non, the Philippines should have a trade agreement with the U.S. whereby the Aquino administration would accept repatriation of stolen assets in equivalent value of American exports.
By Frank Wenceslao
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