A Yacky story

So there was a marathon hearing, at the Senate, see Inquirer.net’s Running Account. Also, see Who is Leo San Miguel?

A reader of this blog “phil,” observed (comment #221, yesterday’s entry),

If anybody was watching before the beginning of the Senate hearings with San Miguel, he got a call before the hearing started and if you pay attention there was a look of worry (fear?) in his eyes. I think there may not be a smoking gun but all the evidence put together should be enough to file a case against the personalities involved.

The scene noticed by the reader turns out to be a Yacky Story. That’s the nickname of Marcelino Agana IV, who supposedly works for the Presidential Legislative Liason Office (but has been mentioned, too, as staff from the Office for the Deputy Executive Secretary for Legal Affairs, e.g. Manuel Gaite). One only wishes we still had an official government directory to sort out such things, as in the old days. But anyway, Yacky Agana, who was active in the administration campaign and who is mentioned in Bohol as a candidate for the House in 2010,

Nothing beats Abante Tonight’s lurid storytelling style:

Nauna rito, nabistong nakipag-usap si San Miguel sa isang alagad ni Pangulong Gloria Macapagal-Arroyo ilang oras bago ang takdang pagharap nito sa Senado.

Sa pagtatanong ni Sen. Jamby Madrigal, napilitan si San Miguel na ituro si Yacky Agana, consultant sa Legislative Liaison Office na nasa pagtitimon ni Presidential legislative adviser Jay Lagonera.

Bago ikinanta ang pakikipag-usap kay Agana, paulit-ulit ang pagtatanong ni Sen. Loren Legarda kay San Miguel kung sino ang huli nitong nakausap bago humarap sa hearing at wala itong maibigay na kasagutan, maliban kay Sen. Panfilo Lacson na ka-meeting nito noong Lunes ng gabi.

Bagama’t walang direktang pagtukoy si Madrigal na posibleng ‘nirendahan’ ng Malacañang, sa pamamagitan ni Agana, agad itinanggi ni San Miguel ang pinupunto ng lady solon.

It’s Jake Lagonera, actually. Anyway, Panfilo Lacson went to town with that telling detail: NBN witness talked to ‘Ma’am’ on the phone, says Lacson. And equally expectedly, the Palace issued a rebuttal (of sorts): Palace: Arroyo ‘relieved’ by San Miguel testimony. He said, she said, did Yacky dunnit?

Observers like The Mount Balatucan Monitor were furious, and insist that it’s just a temporary setback, while others like A Simple Life were delighted by how impotent Panfilo Lacson proved in the face of San Miguel’s assertions. The thing is, there’s been enough talk -and paranoia- of a witness ending up as a Palace Trojan Horse, to suggest that Lacson fell into a trap he ought to have known was waiting to be sprung.

As Splice and Dice puts it (I assume Ben Tumbling in his entry is administration stalwart Sen. Lito Lapid),

The untamed Trojan Horse came to be Leo San Miguel…

Leo San Miguel’s statements during the Senate hearing are incredible for two things. First, as a seasoned IT expert and businessman, it is incredible of him to labor for ZTE as a technical consultant without contracts or official documents. Out of his overwhelming trust for the Chinese corporation, San Miguel braved undocumented waters for a promising harvest to the tune of $1.64M. What can one say? Some people are becoming more and more incredibly trusting these days, they now come in packages, or gangs, or greedy groups, or “jajos” for “borjers”.

And second, it is incredible in the sense that, while denying knowledge on the alleged “tongpats”, Leo San Miguel nevertheless testified that ZTE officials met Benjamin Abalos a couple of times, both in China and in Wakwak. Which badges Abalos as a blatant liar during his appearance at the Senate hearing.

I for one wouldn’t buy the argument that Abalos troubled himself to travel all the way to China not to discuss the NBN deal with the ZTE officials but to play golf…

What I do remember from Ben Tumbling, who also happens to be the chairman of the Senate Committee on Games, Amusement and Sports, are his words of wisdom that, for all its brilliance, should help us understand the core of the ZTE-NBN anomaly:

“There what it takes to be. Then we shall so be it because it is. To do or not to is in the what, now or what else. Without which there never to you!”

Well said, Ben Tumbling, well said. Must we add, “and world peace”?

Lawyers weighed in too, of course (see Notes of Marichu C. Lambino). As The Warrior Lawyer observed,

To be sure, Mr. San Miguel, looking relaxed and composed, made damaging declarations as regards himself. He admitted being a “technical consultant” to the ZTE Corporation and having received substantial sums without documentation. He also confessed to expecting substantial “commissions” should the national broadband network deal push through. At the very least, he opens himself up to charges to tax evasion. But there was nothing in his statements to directly link Malacanang and GMA to the corrupt undertaking, which was what everyone was expecting to hear.

So then, not all was lost yesterday, as The PCIJ reports, Leo San Miguel provided insights into The language and manner of doing (shady) business. Beyond that, the best he could offer up was a denial of allegations made by the other witnesses, although some of his allegations began to unravel, such as his denying he sent an e-mail on overpricing, with its incriminating attachment, claiming afterwards, when Dante Madriaga showed reporters it was still in his Yahoo inbox, that the attachment had been tampered with (those in the know, technology-wise, can explain whether this is possible or not). More on how these deals work is in How gov’t projects (like NBN and Cyber Ed) get overpricedn How gov’t projects (like NBN and Cyber Ed) get overpriced.

San Miguel also could not -because he would not, on grounds his knowledge was purely “technical”- go into why people like Benjamin Abalos were in meetings he attended, both at home and abroad. This clever dodge allows him to feign ignorance over the reasons behind expanding costs for the project as it evolved.

Thads Bentulan, who’s achieved modest fame as a columnist (“Street Strategist”) for Business World with his “Hyperwage Theory,” apparently combed through the testimony of Dante Madriaga and came up with a PowerPoint presentation on how the commissions kept bloating the NBN-ZTE Deal (download Derivation_of_the_329_Million.pps). As with all presentations, caveat emptor but makes for an interesting look-see. Together with ‘Tongpats’ e-mail of Leo San Miguel to Dante Madriaga, submitted to the Senate, 11 March 2008.

The problem with marathon hearings is that at the end of them, when something needs to be done, no one may be around to do it. By the time some senators believed witness Leo San Miguel should be cited in contempt for perjury, the Senate lacked a quorum to authorize a citation. But then the Senate’s problems started quite early on: having submitted no affidavit under oath, there was no means to challenge the witness on the basis of his testimony before the assembled committees. At best, his testimony stood alone in contrast to the testimony of other witnesses. And whatever holes there were in San Miguel’s testimony, the long duration of the hearing meant that the holes weren’t focused on enough -or zeroed in on, too late.

Certainly, there was great cause for celebration i in Mandaluyong and in the Palace, Italian Right Wing-style, last night!

Incidentally, A Simple Life believes, with some reason, that unless things change, the NBN-ZTE issue is headed for a draw or stalemate. Those who play chess can judge whether the analogy used by the blogger is apt or not. New Philippine Revolution on the other hand things there’s a chance that it call all be the calm before the storm (or not).

John Nery’s column the other day, How Jun Lozada may lose his groove, continues a debate that’s been taking place among those trying to situate present-day events according to the framework of past event’s:

It does not seem to me that it is the middle of February 1986 or the second week of January 2001 all over again.

The more I think about it, the more it strikes me: We are back in 1984 or 1985, when the outrage over the assassination of Ninoy Aquino had put the Marcos regime on the defensive–but people power was not even a dream.

To be sure, there are two crucial differences between then and now. The economy was in dire straits then; and Marcos moved around in a pharmacological fog, his instincts that of a dead man.

But the similarity is all-important: Then, as now, it is the opposition’s state of preparedness that will determine the outcome.

Or, as the Inquirer editorial put it the other day, will it be more along the lines of whether or not the President continues to be Lucky? As the editorial rather ruefully points out,

From the start of Ms Arroyo’s presidency in 2001, the parade of charges has been endless:

The Impsa deal where high-ranking officials, including then Justice Secretary Hernando Perez, allegedly got $14 million in kickbacks; the P260-million Jose Pidal bank accounts; the P728-million fertilizer scam; the P2.5-billion poll computerization contract which was voided by the Supreme Court but for which no Comelec official has been prosecuted or penalized; the NorthRail and SouthRail projects entailing millions of dollars in kickbacks; and now, the $329-million NBN-ZTE deal where $130 million was reportedly earmarked in kickbacks for a group of officials and private persons. In any other country, a combination of corrupt deals like these would be enough to bring down a government. Here, we have protests and demonstrations, but so far that is all. Ms Arroyo must be one lucky President!

Meanwhile, the division of the national house continues, even in places like Facebook: see I WILL WAIT TILL 2010! and TIGIL NA: filipinos won’t be taken for a ride…

For my part, A Simple Life’s response to my using the term “loyalist” has made me consider whether I was being intemperate or injudicious in using that term to apply to people who remain unconvinced about the issues raised against the President. I was being unfair and I apologize.

As with all things, those who profess not to be outright loyalists should be given the benefit of the doubt. Which is not to say, as I often have, that there are those professing neutrality who have the net effect of partisanship, but every person has the right to insist on the freedom to label themselves without outside assistance.

As for today’s readings, Neri’s column on Lozada brings us to our first reading, a message from Jun Lozada which he has requested to be reproduced in this blog (unedited):

Dear Sr. Mary John,

I wish to thank all the participants for their prayers and support.

I am a witness and a victim of this Gov’t attempts to stop the truth about corruption from reaching the people. They first tried to silence me forever last Feb. 5 and when they failed to kill me physically they are now trying to kill my name to stop the truth from being told.

The gov’t is again doing what they have done on previous scandals and anomalies, bury it! bury it with more lies!

Until now they have not allowed the members of the PNP and PSG who took me from the airport last Feb.5 to come out and testify to answer the following questions:

1. Who ordered them to abduct me from the airport last feb 5?

2. If I was truly a VIP, why were they not identifying themselves when I was asking them who they were?

3. Why did they bring me to SLEX towards Cavite, then to Laguna when I was telling them to bring me home to Pasig?

4. Why was Gen. Razon, lying to the public that I and my sister has written a request for security when we did not? why did he change his story three times?

5. why did Usec. Gaite gave me P500,000 pesos and the palace to have three diff. stories to explain.

6. Why did Usec Gaite gave me a lawyer without my consent who wanted me to sign a false affidavit?

These are the questions the gov’t do not want to be answered because it will lead straight to the people who doesn’t want the truth about the NBN ZTE deal be known by the people, these are the people who wants to keep the Filipinos in the Dark because it there that they reign, it is there that they can continue to steal from the people their money and rob from the people including their hopes for themselves and their children’s children.

I ask all of you, to please not allow this gov’t to bury this abduction case with more lies and to let them get away with it once more. Because you will also let the truth about the NBN ZTE deal get away again, similar to how the truths about Hello garci, Joc Joc Bolante, Macapagal Highway, Marilyn Esperat, Northrail and a lot more have gotten away from you.

Thank you for giving me your time and attention.

Jun Lozada

Second, and related to the above, an article by Raul Fabella which came out in Business World on March 10:

The Constitutional Comfort for Impunity

By Raul V. Fabella

School of Economics, University of the Philippines

A constitution is nothing if not a bulwark against abuse of power by the duly constituted authority. The grandmother of all written constitutions, the Magna Charta, was a list of 63 proscriptions on the previously absolute powers of the monarchy. King John was forced by a concert of English barons armed to the teeth to sign and issue the proclamation at Runnymede in 1215 in return for their cessation of belligerence. Among the provisions imposed upon the king were the right of freemen to be judged by their own peers, the power to tax being vested on the council of the kingdom and the council of the kingdom to include barons, clergymen and burghers. Accountability was ensured by the willingness of the barons to bear arms in its defense. This made England less a regal than a legal state, one where the power of the purse and the power of adjudication are alienated from executive power. John Locke and Baron de Montesquieu were anticipated by centuries.

The Magna Charta supplanted the long-standing but largely unwritten constitution embodied in tradition and founded on “the divine right of kings.” This political ecology, pyloned on accepted mores and theology, included the accident of birth as the source of royal legitimacy flowing from the Godhead who then serves as the ultimate guarantor of fidelity and accountability. King John however discovered to his glee that he could breach with increasing impunity the traditional boundaries of acceptable monarchical malfeasance. The heavens did not open up and the lightning did not strike after each foray into the uncharted territory of roguery. Instead, every breach unpunished served as a convenient stepping-stonetowards deeper excursions. The concert of barons finding neither solace nor reprieve from God’s wrath as it were, decided that accountability must be spelled out in the only language King John and his similarly disposed progeny would understand: armed popular resistance. Their final and only fallback was themselves! Confronted with this resolve, King John ended up, rather than deposed, defanged.

Although the constitutional project witnessed a colorful career of reversal and rebirth throughout subsequent English history, the Magna Charta’s twin fundamental principle of “consent of the governed” and of “ultimate accountability by armed resistance” always served as a compass that kept the march on course. Charles I, repeatedly testing the second of the twin principle, reawakened the spectre of Runnymede and lost his head to the executioner’s ax in 1648.

A constitution is only as valuable as the protection from abuse of authority that it accords the citizens. Such protection is the raisson d’etre of the various avenues of accountability that it provides. Plug such avenues and the constitution is dead. Worse, its carrion may serve as poison to the polity. The 1987 Constitution provided for accountability through the checks and balance inherent in the Lockean separation of powers among three co-equal and independent branches of government. The legitimacy of the Executive’s prerogative to enforce duly legislated laws derives from the consent of the governed expressed via the ballot. So does the legitimacy ofeach member of the Legislative upon which is vested the power to enact laws. The independence of the Legislative draws from the legitimacy of its members and from its vested power of the purse. It is the ballot that makes political power contestable and ultimately accountable.

Short of the ballot, the Executive can be made to account for its actions by the Legislative through is constitutional power to impeach; so can the Executive and the Legislative be thwarted by the Judiciary’s power to decide on the legality or constitutionality of executive actions or legislative enactments once challenged in its courts. The independence of the Judiciary derives from the integrity of the men and women appointed by the Executive to the bench. Any breach in the system will ultimately be punished by the ballot. Constitutional democracy’s allure is its simplicity and its affirmation of the citizen which explains the vehemence with which extra-constitutional remedies are condemned by well-meaning folks who style themselves defenders of the rule of law.

Well and good on paper. In reality, the law of unintended consequences can kick in rendering the allure messed up and a victim of the clever machinations of ambitious men and women. One obvious soft underbelly of this simplicity: the ballot can be stolen! (Wasn’t the “Garci tapes” controversy all about stolen ballots?).

Consider the following hypothetical scenario: Suppose the ballot was stolen and the perpetrator is the chief law enforcer of the land, the Executive. It is a priori unconstitutional and must be removed. By whom? The Legislative? The Executive’s hold on power can be maintained if the Legislative is neutered. The independence of the Legislative hinges on an effective number willing to buck the Executive thus foregoing the largesse of the envelope or paperbag and risking the electoral discomfort of the pork barrel’s non-release. The blandishments of cash and the power it buys can be too much to resist for most. Instead of the constitutional power of the purse which is its constitutional prerogative, the Legislative will in exchange for cash exercise the power of the begging bowl. As a body, it can insist on its independence only by boisterous supineness. Accountability by impeachment can be rendered dead in the water. But it would be perfectly constitutional.

The Executive can also erode the independence of the Judiciary through friendly appointments or impair its effectiveness by “kidnapping,” “securing,” “neutering,” “demolishing” or “salvaging” evidence and those who know too much. Both together would accord even better guarantees. Evidence-based judgment, the hallmark of an upright Judiciary, cannot prosper without hard evidence. No evidence means innocence! All these meanwhile can be made to look legal and aboveboard by an adept, but most of all amply financed, management of the press.

With a co-opted Legislative, an impaired Judiciary, the constitutional windows are shut. If the top brass of the military can be kept comforted with favors and privileges, the equation is complete. The Executive can afford to immoderate its greed in order to build a war chest that can wither any emergency: top any bid for anybody’s flagging loyalty; procure his/her temporary or permanent silence; secure an opulent temporary or permanent exile for a beleaguered ally. Insiders build an ethical rampart around themselves by subscribing to the belief that all outsiders are virtuous only by default. No one has the biblical right to throw the first stone. In the den of thieves, theft is an oath of loyalty. But where greed is the currency of the land, discord is as natural as sunrise and breaking rank is a contingency to be handled. Any insider who breaks rank is assured of demolition.

With the system of assured demolition for rank breakers tightly in place, the ballot-stealing Executive can confidently hurl the challenge: “Impeachus” or “Sue us”. Indeed since the best defense is an ebullient offense, the bravado can indulge the rapier of sarcasm: “Allow us to start the constitutional challenges: To table an impeachment in Congress; to start an investigation by constitutional bodies.” Marie Antoinette’s “Let them eat cake” is, if more colorful, cut of the same cloth.

In effect, the constitution can be conveniently turned into a cover for a cabal of robbers. Its avenues of accountability can be magically transformed into boulevards of plunder. So impaired and emasculated, it can become a formidable comfort to impunity!

But of course this can be dismissed as no more than a hypothetical scenario. Malacanang’s problem is that more and more Filipinos, rightly or wrongly, no longer distinguish between hypothesy and reality. Who can blame them? They have perished the thought that the rule of law is better served by adherence to a constitution that is being used as a cover forimpunity. Guilty Erap was constitutionally unconditionally pardoned. As the Darwinians only know too well, when rogues enjoy superior fitness, their tribe will increase and inherit the earth. Whether for outright deposal or for defanging, these Filipinos now believe, rather as did the English barons at Runnymede, that only mounting direct action increasing if it must the risk of extra-constitutional tectonics is the only language Malacanang now understands and which alone can force it to come clean on truth and justice.

Waiting for the 2010 that will be forthwith stolen is “waiting for Godot.”