The Original Sin and the Continuing Crime

My column for today is Cory, Erap, Binay, Noli, Satur and J-Lo, which discusses the question of whether united front politics have any value at this time (a very observant peek at the administration’s coalition building was in Patricia Evangelista’s Sunday column, Gangs of Manila). In my column, I point to Hello, Garci as the Original Sin and the abduction of Jun Lozada as the Continuing Crime (see Reflections on the Bangsa Moro here and here).

Concerning the Original Sin, it’s frustrating to me that much of the refusal to take the issue seriously comes from the childish argument “they all cheat anyway,” which, even if true, is beside the point: a generalization is as nothing when confronted by a specific case of someone caught.

Anyway, it also frustrates me that people insist there is no evidence, or that what evidence is hearsay, only. For their part, supporters of the late Fernando Poe, Jr. have been doing a thorough study of the fraud in the 2004 elections, and doing so, mind you, without attracting publicity or calling attention to themselves. Generally, their efforts have identified the fraud as having had three phases:

1. The disenfranchisement of voters in areas that were opposition-inclined, and the increase of voters in administration bailiwicks.

2. The systematic padding and shaving of votes, particularly in Luzon and the Visayas, to preserve the expected percentages of the candidates but which would result, over-all, in decreasing opposition votes and shifting those votes to the administration.

3. An emergency, in many ways, ad-hoc effort to secure a winning margin of votes after the results of voting in Luzon and the Visayas showed that the first two phases still hadn’t managed to obtain a winning margin for the President; in the emergency operation in Mindanao, the President micromanaged the effort, which was clumsily undertaken, and the first to be exposed.

The research of the FPJ supporters took two years to undetake, particularly because phases 1 and 2 were quite sophisticated. But they cracked the system and I’ve been nagging them to circulate their findings so the public can study their arguments. Finally, they’ve begun doing so and here’s the first of several PowerPoint presentations you can download, study, and dissect (and rebut, if you wish).

Here it is, examining phases 1 and 2 of the 2004 cheating: 2004 Electoral Fraud PPT Presentation 1 (click the PCIBChartsData12.ppt link)

Yesterday’s Inquirer editorial called the administration Spratley’s policy a Slithering policy.

As I mentioned in my entry Today the Spratlys, tomorrow Palawan (updated) , it’s well worth reviewing our Constitution. I’d referred to the relevant article before, but not the crucial last sentence which I’ve highlighted, see this extract from Article 12: National Economy and Patrimony:

SEC 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical of financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

The Secretary of Justice says he read the agreement and that nothing in it violates the Constitution. As far as his statement goes, he is correct. But as Carandang suggests below, it’s what the President did, after the agreement was signed, that could open up Constitutional questions. If the Constitution requires the President to inform Congress of any contract, then the question is, did she inform Congress? The contract itself pledges the parties to secrecy, except for authorized government agencies, clearly adhering to our own Constitution requirements; but did the President then comply?

In his entry yesterday, Ricky Carandang continues his ongoing investigations into what, really, the Spratleys deal is all about, and its potential infirmities, constitutionally and otherwise. It was an effort to wiggle out of constitutional requirements by calling a spade a preliminary earth-moving device:

Note that the President is allowed to enter into agreements with foreign corporations to explore for oil, provided this is done in accordance with the law and provided Congress is notified of the agreements within 30 days of its execution.

Congress was never notified of the agreement and the Palace had no intention of doing so. In fact, the agreement has never been released to the public. So how did the Palace lawyers get around this?

By simply referring to the agreement as a pre-exploration activity.

The palace geniuses and their allies pushing for the deal argued that by labelling the seismic study as a pre-exploration activity, it did not constitute exploration per se, and therefore they had no obligation to notify Congress. But others raised the issue that seismic mapping was in fact already part of the process of exploration. In their eagerness to sign the deal, they said by simply referring to it as a pre-exploration agreement that would be enough to circumvent the constitution. The problem is simply declaring it as pre-exploration doesn’t necessarily make it so. But that’s why the text of the agreement refers to it as a pre-exploration activity. And that’s why the [Palace] press release above made it a point to say that the agreement was not an exploration agreement, but merely a study.

The problem is that any oil industry expert will tell you that seismic mapping is in fact, part and parcel of exploration activity. In the oil exploration business, pre-exploration activity consists of mostly of studying the regulations, lining up the financing, and obtaining the licenses and the other government approvals necessary to begin exploration. Again, don’t take my word for it. Do the research. Talk to oil industry experts. Google “oil exploration” or “seismic exploration” and you’ll see ample literature out there on seismic studies and how they constitute part of exploration.

Case in point: In 2002 the Department of Energy granted an oil exploration company called Forum Energy a license to explore for oil and gas in the Reed bank of Western Palawan. The license was called Geophysical Survey and Exploration Contract (GSEC) 101. A GSEC, as its name implies, is a license to explore for oil or gas in our territorial waters. As you can see, seismic surveys are part and parcel of exploration activities. Their exploration gave them enough reason to believe that GSEC 101 contained oil and gas in commerical quantities, so Forum applied to convert their GSEC into a Service Contract (SC). Normally, having given a company a GSEC, the DOE would grant the SC as a matter of course. After all, if you let them explore, you would also let them drill. But unexpetedly, te DOE balked at convefting Forum’s GSEC into a SC, something that almost never happens.

The problem with Forum was that after the Philippines and China (and later Vietnam), signed the Spratly deal the Chinese government began to apply pressure on the Philippine government not to convert Forum’s GSEC into a SC, because GSEC 101 was part of the area included in the joint exploration deal. In asserting its rights under the Spratly deal, China is now questioning the granting of exploration licenses in an area where we were already granting drilling licenses to private companies. As far as I know, China did not contest the granting of the GSEC to Forum in 2002, but the Spratly deal has emboldened China to do that now. Forum saw the writing on the wall and sold its stake in GSEC 101 to Monte Oro Resources and Energy, a local firm partly owned by Walter Brown of Philex and and reportedly, Enrique Razon of ICTSI (yes, there’s a story here which I will save for a later date).

As we can see from this example, the Spratly deal has already weakened our claim on certain territories we claim as our own, like Palawan.

In view of the preceding sentence, see RP knew Spratlys exploration ‘too close’ to Palawan. See also 6 Philippine-occupied islands covered in Spratly agreements. As with all the ongoing scandals, the net keeps catching more than the usual flotsam and jetsam: De Venecias, Razon behind oil, gas extraction by UK firm. The only question is, as Senate to start new probe on Spratlys exploration, is, will it serve as a distraction from the NBN-ZTE deal? Perhaps not, as it’s all related, anyway.

And as usual, it’s the behavior of the Palace that validates the old saying that where there’s smoke, there’s fire. Instead of asserting that its embarked on a visionary initiative, the Palace’s reaction is to duck responsibility: Spratlys project put on hold as Chinese ODA mess rages. And not only ducking, but it’s trying to pass the buck: Palace: Let De Venecia explain Spratlys deal. But the problem with this is that if the ex-Speaker acted as the broker, his brokering the deal required presidential approval. The Palace is probably calculating that de Venecia will not want to incriminate himself and so, won’t incriminate the Palace. And others who may be considered collateral damage in the deal, won’t spill the beans either: Mañalac knows more than Spratlys deal: The hotshot geologist was fired for allegedly blocking Palace interest. But by all accounts, even if summoned to the Senate, he won’t talk beyond confirming that the contract he signed was, to the best of his knowledge, constitutionally-sound (and as I’ve pointed out, probably so, up to the point of signing but not thereafter).

The Palace itself has acknowledged what’s at stake: Gonzalez: 3 trillion cubic feet of gas at stake in Spratly deal.

For reference, since Text of Spratlys agreement disappears from DFA site (sourced from Newsbreak):

Agreement-Bilateral Marine Seismic Undertaking.pdf.

and

Tripartite Agreement-Marine Scientific Research.pdf.

As for what seismic exploration is, it’s explained in NaturalGas.org. See also the Encyclopedia of Earth entry. Greenpeace states, unambiguously, that seismic exploration is “the first stage of oil and gas exploitation in an ocean area.” How everything comes together can be gathered by looking at the processes (and incentives) granted by the Nigerian National Petroleum Corporation:

The investment opportunities in the downstream are many. Some of them are:

Refining, Petrochemicals and Gas Utilization

In order to reduce the investors’ risk, speculative seismic data acquisition is carried out in the deep offshore using the services of reputable data acquisition companies. In the inland area, there is direct involvement in exploration activities.

For his part, Mon Casiple says one problem is that there are oppositionists more interested in dribbling the ball than in going for the game-winning three-point shot:

In the meantime, the Senate plans to continue the hearings–possibly with new witnesses–amidst a spreading and more organized public campaign against the Arroyo administration. This maintains pressure on the president while avoiding an immediate decisive confrontation that forces a GMA resignation.

A prolonged crisis scenario without a decisive ending favors those who do not want GMA to resign immediately and therefore usher in a Noli de Castro presidency. If the crisis does not force their hand, they would want to prolong things and bask in the priceless public fascination with the scandal.

What I think we have here is a dribbling of the ball. Meantime, there are unforeseen consequences–not the least of which is a possible polarization of the situation.

The ultimate futility, politically speaking, of arguing that the economy is doing well to justify turning a blind eye to official corruption,is exposed by Amando Doronila in ADB report links RP corruption to investment dip (here is the ADB paper he commented on:critical-dev-constraints.pdf.) The futility of that argument is further demonstrated by the results of parliamentary elections in Malaysia. No one can doubt that the ruling party had put in place an economic policy resulting in growth. But along with inflation, it was the issue of crime, including allegations of widening official corruption, that forced the Prime Minister to call for early elections and the elections resulted in the defeat of the ruling party -the first since 1967. See Malaysia’s Leaders Suffer Setback in Time.com, and Malaysia’s ruling coalition suffers stunning blow Malaysia’s ruling coalition suffers stunning blow and Shock election result for Malaysia’s ruling party in the Financial Times. Incidentally, t seems a blogger, Jeff Ooi, has also been elected as an opposition MP!

People interested in questions of autonomy might want to take a look at The coming pain in Spain in The Economist, which discusses the reasons why Spain’s ruling party faces a tough time at the polls.The problems of bureaucratic reforms is also tackled in another Economist article, What’s holding India back?

In All Roads Lead to Rove, Slate’s Dahlia Lithwick looks at a book by one of the attorneys fired for partisan political reasons by the Republicans, an issue the writer says was raised “some zealous congressional oversight and award-winning journalistic coverage” by a blogger. The question of executive privilege has also been raised in the United States, particularly as the present American administration keeps mutating its definition:

As Mukasey has argued and Jonathan Turley has decoded, the Bush administration formulation of executive privilege constitutes a perfect legal möbius strip: “[L]awyers cannot commit crimes when they act under the orders of a president – and a president cannot commit a crime when he acts under advice of lawyers.”

In Questionable privilege? Alex Pabico of the PCIJ introduces readers to Executive Privilege Versus Public Interest by Atty. Nepomuceno Malaluan, which provides an exhaustive overview of executive privilege issues that have arisen in the Senate. In his column today, Fr. Joaquin Bernas, S.J. dissects the proposed compromise peddled by the Supreme Court in Anatomy of a rejected compromise.

Starting at midnight tonight, there will be a major transport strike: Provincial bus operators to join strike; government fielding free transport. The cost of oil is just one of the bread-and-butter issues of which every government has a horror: today’s Inquirer editorial calls it a Food emergency. See Prices of rice seen high in all of 2008 and RP, others hurting as rice price skyrocket and DTI heeds flour millers’ appeal, but . . . and

And in another triumph of the rule of law, Imelda not guilty of dollar salting.