Thursday, June 12, 2008

Wayback Machine: Terrorist in Robes

Terrorist in Robes

By Dante A. Ang

(Remarks before the Monthly Meeting of the Philippine Constitutional Association, Hotel InterCon, Makati, May 27, 2004)

A statement of faith
Let me first preface my remarks by presenting my fundamental beliefs.
I believe in the Constitution as the basic law of the land.

I believe that one great test of legislation, any piece of legislation, is the issue of constitutionalism. Is this bill constitutional? Or does this proposal violate the intent or the will of the Charter?

I believe in the Bill of Rights, Section 3 of the Constitution. Despite its flaws, the 1987 Charter is redeemed by the forthright explication of the human rights and civil liberties of the citizen.

I believe in due process. No abbreviation of process can justify an arrest or illegal arrest, even of a criminal suspect.

I subscribe to the presumption of innocence. No suspect or individual should be declared guilty in the media or in any public forum unless proven otherwise.

I believe in the institutional independence of the three branches of government. We need an effective system of checks and balances to curb excess and abuse.

I believe in a strong and transparent system of law. Under this system, even a despicable criminal or a lowly suspect, as lawyer Rene Saguisag loves to remind us, is entitled to the protection of the law.

I am a great believer in a credible, fair and effective judiciary, led by the Supreme Court that, independent of the Cha-cha or the Con-Ass, functions as the continuing constitutional convention in the archipelago.

I also believe in a responsive, fast-moving and decisive judiciary. Justice delayed, as a wise saying goes, is justice denied.

Amplifying, Ramon Magsay-say Sr. said that Filipinos who have less in life should have more in law, implying that a great mass of Filipinos, especially the poor, have no or little access to justice.

I believe that the practice of law is one of the great humanitarian services available in society. When the practice of law is imbued with ethics, morals and principles, it becomes a truly edifying profession.

When a lack of professionalism, ethics and principles corrupts the profession, the practice of law becomes a terrible punishment on the poor, the underprivileged and the weaker members of society.

I believe in an effective criminal justice system where all the players�the police officers, prosecutors, penal authorities, judges, justices, witnesses and members of the community�play by the rules.

Finally, I also believe in an alternative system of redress where the aggrieved and the oppressed, or the parties to a quarrel, may have options to justice or settlement, other than those obtained at the courts, the labor relations commission or other forums for hearing disputes.

It is therefore right that apart from the process of legal litigation, the system should encourage mediation, arbitration and other modes of settlement for a speedier and nonadversarial resolution of disputes.

The problems of the judiciary

Having established my bona-fides, which I hope most of you share, let me make some observations about the legal system and the legal profession.

It seems to me that there is no consistency in the decisions of the Supreme Court.

There is a growing proclivity on the part of the courts to intrude into the economic decision-making process, which is best left to experts in the Executive Branch.

Our prosecution service is hard put to prepare, present and defend airtight cases against the perpetrators of graft and corruption.

The Judicial Bar Council has become an Old Boys� Club that has become a preserve for choice appointments to the judiciary.

And finally:

We have allowed a kind of legal terrorism to encroach on the legal system and the practice of law.

A new kind of terrorism

In the criminal justice system, terrorism begins with wayward police officers who, for considerations of money, arrest peaceful citizens, stage mock raids to harass innocent men and women, and generally make life difficult for potential victims.

Prosecutors, for the same considerations, have the power to speed up, delay or bury important cases.

Judges may ignore the merits of a case for the same reason.

The resolution of a case at the court level does not end the regime of legal terrorism. A prison warden or guard may spoil or bully a convicted prisoner depending on the gratuities he receives from the newcomer.

It is well known in legal circles that it is not money alone that determines the shape of justice or the speedy resolution of a case. Friendship and kinship are equally important.

I remember Justice Artemio Panganiban mentioning three �ships� in one of his lectures as important determinants in helping influence a case. But if you�re a friend or relative or compadre or a special compa�ero of the prosecutor, the fiscal or the judge, or a justice, your case is half-won.

Gapangan is the popular jargon for case-fixing. It�s not always lagay. It could be pakikisama or paghingi ng pabor. Others refer to it as paghingi ng balato. Sometimes it could be pagbayad ng utang na loob or repayment for a favor done.

Whether it�s money or friendship, this system of legal terrorism frustrates the ends of justice and tilts the balance in favor of the rich, the powerful and the well-connected.

The victims are generally the poor, the uneducated, and the jobless. Small wonder that 95 percent of those in prison are the masa.

The corruptors of the judiciary could be individual lawyers or giant law firms. Using cash or personal influence, they are able to win cases for their clients, at a cost to the other party, at a cost to society.

We need reforms

Reform in the legal system therefore should begin with the practitioners of law. They may win a case now and then, but they are likely to face more influential counterparts in the future. Thus, their victories are short-lived.

Reform could be achieved if we are able to raise ethical and moral standards in the judiciary. Equally important, we should raise the salaries of police officers, prosecutors, public attorneys, judges and justices.

Most of these observations are common knowledge. Many of them are reported in the media. Friends and associates tell us about their experience with the law. We hear stories from the victims.

A diplomat, US Ambassador to the Philippines Francis Ricciardone once complained publicly about corruption in the judiciary.

According to Supreme Court Justice Panganiban, in a lecture, there are three major problems besetting the judiciary: corruption, incompetence and delay.

By corruption, he meant the ability of cash to buy judges and prosecutors to fix cases and influence decisions.

By incompetence, the justice referred to the slaughter of the English language in the hands of lawyers and judges, rendering opinions and presentations ungrammatical and incomprehensible.

Delays, he said, are caused by numerous vacancies in the trial courts, archaic legal practices and corruption in the bench.

He assured us that the Supreme Court, under the leadership of Chief Justice Hilario Davide, is addressing these problems.

The story of two contracts

Let me just return briefly to two observations I made earlier.

The Supreme Court, in separate decisions on the NAIA Terminal 3 Project and the Jancom trash facility project, faced the same issues and made two conflicting opinions.

The Court said that the Piatco project and the Jancom undertaking both violated the BOT Law. However, it ruled the Jancom contract as valid but decided that the Terminal 3 project was null and void.

The Court said that both contracts deviated from the original bid terms or concession agreement but ruled that the Piatco contract was null and void while declaring the Jancom contract valid.

The original Piatco contract was approved by the NEDA-ICC and signed by authorized signatories. The Court ruled that it was null and void despite proper approvals. The Jancom contract did not have the approval of the NEDA-ICC, the approval of the MMDA Council and presidential approval but ruled that the contract was valid.

The Court ruled that the legal flaws in the Jancom contract were corrected and perfected when the contract was signed. Yet, the same Court nullified the Piatco contract inspite of the fact that Terminal 3 has been completed and could have opened in December and after the government had received some P480 million and another P300 million from Piatco as rental payments for the first year.

According to experts, the Court decision is grossly flawed, inconsistent and that it violates the Constitution and the BOT Law.

Following the Terminal 3 decision, some of the newspaper headlines read:

�Foreigners having second thoughts about RP; contracts no longer sacred; credibility of SC at stake�; �Business divided over SC ruling.�

The construction of the Terminal 3 project did not cost the Philippine government a single centavo. The project passed the scrutiny of three presidents. The government will own the terminal after a period of time. It will provide hundreds of jobs. It would provide Filipinos a world-class, state-of-the-art airport facility.

Why then, most Filipinos ask, did the Supreme Court void the contracts?

Intrusion into economic policy

I also said that there is a growing proclivity on the part of the courts to intrude into the economic decision-making process, that is best left to experts in the Executive Branch.

Proof is the eagerness of the Court of Appeals and the regional trial courts to issue temporary restraining orders that effectively stop important public-works projects or measures designed to improve community life.

Legal terrorism and underdevelopment

The controversial decisions of the Supreme Court, the power of the lower courts to issue frivolous temporary restraining orders, corruption in the court and the substandard practice of law are barriers to the flow of foreign capital into the country.

They make foreign businessmen and Filipino entrepreneurs wonder about consistency, truth and fairness in the Philippine courts and system of government.

In the long run, these practices discourage foreign investments, slowing down the pace of development in the country and postponing much-needed growth in the regions and in the important industries.

And yet we blame the New People�s Army-Communist Party of the Philippines and the Moro Islamic Liberation Front (and the Abu Sayyaf Group) for destroying the peace and derailing economic and social development in the country, particularly in Mindanao and Sulu.

Forgive me, but I feel very strongly that most of the members of the NPA and other subversive groups are not inspired by Communist or leftist ideologies but were driven to lawlessness by a lack of basic human needs: their inability to get speedy justice from the courts, corrupt government officials, including judges, prosecutors and police officers; unemployment, and lack of educational opportunities and health services for themselves and their children.

Delays in the delivery of justice have also prompted peace-loving citizens to take the law into their hands.

There is an explosion of killings caused by resentment against the courts. In the Philippines, there is a long history of family feuds in countless communities that are marked by acts of vengeance and preemptive killings.

Corruption, incompetence and delay similarly have led to questionable convictions, arbitrary arrests, and unlawful detentions. This, in turn, has produced overcrowding in local jails and national prisons. Congestion in jails, as we know, is the fuse that ignites most prison riots.

The practice of law

And now, let me go the practice of law. And here, I speak not only as an observer but also as a victim.

I have observed that while we have an abundance of lawyers, very few good ones choose to join the government service. We require graduates of medicine and nursing to perform obligatory service in remote places of the country. Can we ask law graduates to serve in government for a brief period of time?

It is not very often you hear about lawyers or law firms engaging in pro bono practice. Should we have a law requiring lawyers to devote part of their time to free legal counseling to the poor and to prison inmates?

Now, let me go to a personal matter.

I have described how our laws are being prostituted to make the innocent guilty and the guilty, innocent; of how investors, foreign and local, must contract the services of powerful, well-connected people for their services under pain of having their projects cancelled or nullified.

This is my story.

A Spanish citizen who is facing deportation, filed a complaint with the NBI against the officers and board members of a thrift bank which I chair. In his affidavit, the Spaniard claims that the money placed in the bank was a deposit. The bank says otherwise: the money he placed was equity. We have documents to prove that. Anyway, we were summoned by the NBI to reply to the allegations in the complaint. My inclusion would have been OK were it not for the fact that I subsequently discovered that I was not included in the complaint. My name was not in the original complaint!

Before the NBI could come up with their findings, a case for �Syndicated Estafa/ Economic Sabotage� was filed against bank officers before the Makati Fiscal�s Office. This time around, I was conveniently named as one of the defendants.

Realizing that the case against me was weak, the investigating fiscal downgraded the charge from �Syndicated Estafa/Economic Sabotage� to a simple �Estafa.� We were reliably informed however that the fiscal was pressured into finding a probable cause.

I almost cried, not out of fear of losing the case, but out of pity. I felt sorry for Filipinos and for those who fought for liberty and shed blood to keep our freedoms and democracy alive. It seemed to me that their sacrifices had come to naught. I felt sorry for our country and children who will inherit what I considered a sick system. More importantly, I almost cried out of frustration and anger. What did this country do to deserve the �Terrorists in Robes?� I prayed very hard for guidance and enlightenment.

I was indicted for my �failure to act on the complaint�; estafa for �inaction.� Until the unfortunate case developed, I did not know you can be criminally liable for nonparticipation in a crime committed by others assuming, of course, that my associates were guilty as charged. But I doubt that.

I am not a lawyer. But estafa presupposes deceit or fraud as a result of an overt act; active participation in the commission of the crime.

The bank transactions happened in the year 2000 until 2001. Disagreements between the Spanish national and the bank cropped up in 2001 until early 2002. I was appointed bank chairman in April 2002. Simply put, I became bank chairman more than a year after the fact.

Even assuming that the transactions happened under my watch, as chairman, I have no participation, active or passive, in the day-to-day operations of the bank. The chairman only presides over board meetings.

Not content with that, they short-circuited the process. We were reliably informed Friday afternoon that the case was to be raffled; never mind if the decision was not yet sent to, much less received by us; never mind if we were not given our day in court or a chance to file a motion for reconsideration.

To avoid being harassed and inconvenienced, we decided to post bail the following day, Saturday.

We thought that was the end of it. We were wrong. They filed a motion for a Hold-Departure Order before a Makati judge. As far as we know, that motion is still pending for more than three weeks now.

I must congratulate the lawyer behind the plaintiff�s lawyer for his passion, dedication and single-minded purpose of putting Dante Ang and his business associates behind bars, come hell or high water. The law can go hang.

This lawyer has a habit of hiding behind anonymity, using satellite lawyers to fight his battles. It is not uncommon to hear businessmen talk about how they were had by this lawyer who had acted as counsel for both the protagonists.� Kita kaliwa, kita kanan. Urong, kita, atras, kita.

Not content with a bodyguard, this lawyer goes around with a .45-caliber pistol tucked in his clutch bag and doesn�t hesitate to shoot neighborhood dogs, real dogs, that annoy him for their barks. Pati aso pinapatulan.

In my book, he is a certified coward. Right now, he is busy weaving yarns against me. He has intensified his black propaganda campaign against my person and my associates. He has become cocky. Feeling on top of the world, he even had the effrontery to send my associates and me messages to the effect that he will destroy us, blow us to smithereens.

I have faith in the goodness of man. Surely as the sun rises in the East, thoughtful leaders and responsible members of society will one day find courage to stand up against this lawyer and his shenanigans in and out of government. His karma will come.

Begging the pardon of the friends and supporters of the late President Marcos, was it the late Ninoy Aquino who, out of frustration, said that the Philippines is inhabited by 60 million Filipinos and one SOB?

Oh, yes, I am scared. I am scared of the unknown; of what lies ahead. After all, I�m against very powerful people whose tentacles are all over the place. Yet, if I do not fight for my rights, who will? If I do not speak out, who will? I say, we lock horns with the crooks in and out of government here and now and let the chips fall where they may.

I have been asked by friends to settle my differences with this lawyer. I have assured them that I intend to finish what I have started. I shall continue to expose the crooks in and out of government and those who mock the law, alone if need be.

I have declined offers of assistance from prominent political figures in my crusade against this lawyer and his ilk. I have no wish to politicize the issue otherwise, I lose credibility and the whole exercise would morph into nothing more than a cheap propaganda stunt. I believe I stand on a moral high plane. The issues I have raised against those who prostitute the law are legitimate concerns. They erode the people�s faith in government. They destroy our democratic institutions. They ruin our hard-earned freedoms. They make a banana of our republic.

We brand the NPA�s, the communists, the MILF, the Abu Sayyaf enemies of the State. Yet, what about those lawyers who flout the law and ruin the dreams and aspirations of a people for a just, free, prosperous country? What about lawyers, fiscals, judges, justices who actively participate in the plunder of the ebbing trust of the people�s faith in government? I say, they are the true enemies of the State. When the guardians of the law, the very people entrusted to uphold the law violate the principles of justice, I say they are traitors of the highest order. We either fight for our rights now, here, or forever keep our peace. The choice, as they say, is ours. I have crossed the great divide. I have made my choice. I hope you have you made yours.

Conclusion

Most economists and some social scientists assert that it is the management of the domestic economy, the twists and turns of the world economy and the economic policies of government that shape economic development and determine the prosperity of a nation.

To a degree, I say this is true. But there is also a sense in which non-economic denominators influence the national life, influence foreign and domestic investments, impact on industries, jobs and standards of living.

I believe very strongly that there is one aspect of the national enterprise�the functioning of the judiciary, the state of the legal system, the effectiveness of the prosecution service, and the quality of the practice of law�that plays an important role in the economic life of Filipinos.

Justice is the bedrock of democracy. The system of law is the critical pivot around which trust and faith in government turn.

When the system works�when the poor can compete with the rich in the claim for justice, when the aggrieved can expect to get prompt action from a police officer or a lawyer, a decent hearing from a fiscal or fair settlement from a judge or a justice�you have a citizenry who take pride in the system and will see that it continues to work, a public that feels it has a stake in the process and will work for its survival.

But when the system breaks down, when legal terrorism wrecks investor confidence, corrupts the law for money or purchases justice in the name of friendship, when only the rich and the powerful can hope to win legal battles, when the police officer, the private lawyer, law firms connive with prosecutors and judges to influence a case, when the poor and those with lesser means�in short�must fight their personal vendettas or join the insurgency to exact some justice, then democracy becomes a parody and the Constitution an unworthy scrap of paper.

Sometimes, the victims do not always take the law into their hands or flee to the hills. Many are leaving the country, disillusioned by the lack of jobs, the dearth in opportunities and the paucity in justice. It is a sad story but it is true.

No comments: