Back to ‘Juristic Park’
The way things are taking shape, Napolesgate, which began in the court of public opinion, will come home to roost in the courts of law. The Filipino fascination with law as almost a secular religion is perplexing, since the Supreme Court itself twice validated pork barrel in the past.
Nowadays the comings and goings of legal eagles are Page 1 material. Sen. Jinggoy Estrada has engaged for his defense no less than Estelito Mendoza, architect of the legal superstructure of martial law and counsel of choice of the likes of Imelda Marcos, Joseph Estrada and Gloria Arroyo, who turned to him when they were as desperate as they were well-funded (and remain so). He has also enlisted former state prosecutor Jose Flaminiano, who has lawyered likewise for the elder Estrada and Arroyo. (Lorna Kapunan’s exit as Janet Napoles’ counsel was itself well-reported by the press.)
Significantly, Jinggoy’s announcement of his defense team came on the heels of President Aquino’s “I am not a thief” speech. Significant, because the speech basically said the criminal prosecution of the “thieves” is the answer to the public outrage. Mr. Aquino tells us that Jinggoy’s proverbial day in court will be judgment day on the pork barrel scam.
It doesn’t have to be. Napolesgate is larger than the individual guilt or innocence of the actors in this story. It is not just about personalities but also about governance, how public money became personal largesse and outright loot. It’s not just about people. It’s also about institutions.
Yet the President, by funneling the pork barrel debate into a strictly legal proceeding, avoids the larger issue of institutional checks and balances on patronage power. That is why his speech is perplexing. By focusing on the criminal prosecutions, he holds his “daang matuwid” campaign to the higher standard of criminal justice, “proof beyond a reasonable doubt.” All it takes to win an acquittal is for the defense to break the chain of attribution at any point in the budgetary chain, any moment when he can wash his hands of Napoles’ scam—and the legislator casts “a reasonable doubt” on his guilt.
Moreover, once the public debate is muscled into the matrix of criminal proceedings, expect the usual dose of lawyerly sleight of hand: the side debates about the cancellation of passports and issuance of hold-departure orders; the extensions of time (one has already been requested) that may yet sublimate the public anger into measured legalisms; and—as in the Corona impeachment—the battle over subpoenas and the admissibility of evidence.
Even if Mr. Aquino really preferred the legal to the political terrain, he could have focused on another legal front: the pending hearings in the Supreme Court on the constitutionality of pork barrel and the discretionary funds under the DAP (Disbursement Acceleration Program).
Timewise, that case will surely move faster than the criminal case against the “thieves,” which, by the Ombudsman’s own reckoning, will take at least a year. In terms of legal standards, Mr. Aquino’s “daang matuwid” enjoys the advantage here. If in the criminal case the government needs to overcome the “presumption of innocence” enjoyed by the accused, in contrast, in the constitutional case in the Supreme Court, it is the government that enjoys the “presumption of validity” in favor of its acts. And surely Mr. Aquino is aware that the high court is caught in a bind: If it strikes down the DAP, it jeopardizes the discretionary funds of its own from which it sources the ample allowances and bonuses it pays to itself and its staff. The days before Christmas are the worst time to ask the high court to cripple its quiet control over its own version of the pork barrel. The odds look better in the constitutional case in the high court rather than the criminal cases now in the Office of the Ombudsman and later the Sandiganbayan.
So why does Mr. Aquino focus on the question of individual criminal culpability? Because it highlights personal virtue, and his own has admirably not been put to question. Yet as netizens have loudly protested, what is at issue is not his personal virtue but his leadership and his capacity to build institutions that will outlive him and his presidency.
The pork barrel debate began as the Inquirer’s exposé, and soon burst forth in the Million People March at Luneta. For some reason, both Mr. Aquino and the legislators and their lawyers prefer to see it as a question of individual criminal liability. It is a question of public accountability, and the Filipino public asks them all to render their accounting.
