Gamble

A joint Department of Justice and Commission on Elections investigating team will soon file charges of electoral sabotage against Gloria Macapagal-Arroyo and 46 others for rigging the 2007 electoral polls. The others include former Comelec Chair Benjamin Abalos, former Comelec Commissioner Nicodemo Ferrer and former Maguindanao Gov. Andal Ampatuan.

In its report, the DOJ-Comelec probe panel recommended indicting Arroyo “for giving direct instruction to manipulate the results of the senatorial elections in Maguindanao.” This comes largely from the testimony of Norie Unas, who executed an affidavit saying: “When the President was about to exit from the hall as she was shaking hands with several participants, the President signaled Datu Andal to a corner and I heard the President tell again Datu Andal: ‘Dapat 12-0 sa Maguindanao, kahit pa ayusin o palitan niyo ang resulta,’ to which the governor answered: ‘Opo Ma’am’.”

Exempted from indictment is Mike Arroyo. All they could find against him, says the investigating team, was hearsay.

It’s a huge gamble but government finds its hand forced on it. And for reasons largely of its own making: The Aquino administration has been in power for a year and a half, and it took its sweet time building a case of electoral fraud against the former first couple. Only a few months ago when he first came up before the Commission on Appointments, Comelec Chair Sixto Brillantes was saying putting a closure to electoral fraud wasn’t his priority. He wasn’t concerned about the past, he said, he was so about the future.

Well, the past has a way of creeping up on the future, or indeed the present. As it has done now.

Government doesn’t have time on its side. It has to charge Arroyo with something to keep her here, particularly with her knocking on the Palace gates, begging to leave to seek medical treatment abroad. The Constitution says government may only prevent someone from leaving on grounds of national security or health, and short of Arroyo being turned into a fugitive by a criminal charge, neither ground holds. Government can’t just say, “Steady ka lang diyan, while we prepare a case against you.” That has an ugly sound to it.

Of course, government may keep her here on the strength of an order that Arroyo herself mounted to confound or torment her enemies, which allowed her to prevent them from leaving the country on grounds she alone knew. But that has an even uglier sound to it, sinking to her level. You cannot fight tyranny by the ways of tyranny. You can fight tyranny only by the ways of decency.

Government needs to charge her posthaste to keep her here. That way, if she can truly show proof of a burning need to seek treatment abroad, it can be granted to her as a matter of compassion and not of right.

What makes government’s tack a gamble is that it wants to bank on the 2007 elections rather than the 2004 polls. Its logic is that Arroyo’s transgressions in the first are more easily proven than in the second. Leila de Lima herself says prosecuting Arroyo in the first does not preclude prosecuting her in the second. I do not find it reassuring.

My unhappiness over it springs from several things.

One is that it implicitly affirms Arroyo’s legitimacy, recognizing her as the president at that time, albeit one who cheated to secure a Senate composed of stalwarts. You go straight to the 2004 elections and you go to the heart of the matter. You do not only prove that Arroyo committed a non-bailable crime, you prove that she was never really the president. A thing that has enormous implications for rectifying the past, or recognizing the true winner of those elections.

Two is that Unas and Lintang Bedol are among those indictable for 2007. State witnesses may have the virtue of having had a front seat to the crime, but they also have the vice of having shaky credibility. To appreciate that fact, just note how Estelito Mendoza characterized Chavit Singson at the start of Erap’s impeachment trial. It’s a wonder Mendoza is still around to torment the PAL unions. That trial quite incidentally never convicted Erap, the people merely took it upon themselves to render the verdict. You cannot mount a People Power against someone who is no longer in power.

Three is that you are really going to be hard put to find damning evidence against Mike Arroyo in 2007. If I recall right, he suffered a heart attack in Baguio on Easter Sunday of that year and was flown to St. Luke’s where he stayed in a wretched state till after the elections. A day that greatly reduced the number of agnostics and atheists in this country. And lo and behold, the elections managed to have some mighty semblance of honesty, not unlike the senatorial elections in the United States where the opposition trampled over Dubya’s chosen. Heaven works in mysterious ways.

Four is that between the word of witnesses, and soiled ones at that, and objective evidence, the latter trumps the former anytime. You grant that “Hello, Garci” is inadmissible as evidence, you can always follow the trail it left behind, and find your evidence there. If I recall right, too, Arroyo was scared enough to prevent Brig. Gen. Francisco Gudani and Col. Alexander Balutan from testifying in the Senate about the cheating in the South she issued a decree forbidding public officials from testifying against her. Between the 2004 and 2007 elections, the cheating in the first was far more humongous and in-your-face than in the second. It was closer to home for Gloria. The notion that it is easier to prove electoral fraud in 2007 than in 2004 is silly. That doesn’t reflect on reality, that reflects on ability.

Five is that you fail in this, you’ll have a hard climb to 2004. It will not look like prosecution, it will look like persecution.

All in all, one very huge gamble.