50 days in jail, and counting

SERGIO O. Valencia has been in detention in Camp Crame for the past 50 days. He is allowed visits twice a week, but is otherwise incommunicado. And it looks like he will be confined there indefinitely. He is accused of plunder.

Such is the fate that has befallen the grandson of a former president (Sergio Osmeña), son of a former secretary of health, former national president of the Junior Chamber International (JCI) Senate (which issued a very strong statement of support), and respected businessman who, according to his sister Mariza, will not even allow the family corporation to reimburse expenses by family members without the proper receipts and justification.

Why did such a fate befall him? Because he had the misfortune to serve as chair of the board of the Philippine Charity Sweepstakes Office (PCSO), in the latter part of Gloria Arroyo’s administration. He and his board had then performed what was merely a ministerial duty: to confirm (on three different occasions) that then President Arroyo had approved the request of PCSO general manager and board vice chair Rosario Uriarte for the release of additional confidential and intelligence funds (CIF).

And what is a ministerial duty? It is defined as a duty “where nothing is left to discretion—a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist.” This is in contrast to a discretionary duty, which is “one requiring the exercise of judgment in its performance.” Thus, when Arroyo approved the Uriarte request, Arroyo was performing a discretionary duty (she could have refused the request).

Valencia and the PCSO board, however, had no such discretion. The approval of the release of funds had been made by the then President upon Uriarte’s request. Uriarte was under no obligation to seek their permission to ask the then President for the additional funds, and did not do so. They knew of the request and the release only after the fact, when they were asked to confirm that the then President had indeed approved it (marginal note on request letter, or letter from Executive Secretary Eduardo Ermita as proof). Moreover, the PCSO and its board are directly under the Office of the President, which means that the President has the power of control over them.

And what is the power of control? It is the “power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter.”

In other words, Valencia and his board were in no position at any time to say “yay” or “nay” to what the then President and Uriarte did. Which is essentially the conclusion of the Senate blue ribbon committee (Report 95), which did not fault the PCSO board (the confirmation was “established practice”), focusing only on then President Arroyo and Uriarte, saying of the latter: “Based on her own admission, the entire scheme was started and finished by herself and then president Gloria Macapagal-Arroyo.”

And yet the Ombudsman, apparently based on the very same Senate report, saw fit to charge not only Arroyo and Uriarte, but Valencia and the rest of the PCSO board as well (and three others plus “John Does”), claiming that there was “a common design to defraud the government amounting to conspiracy to commit plunder.”

The Ombudsman went on to claim that Valencia (and the rest) amassed, accumulated or acquired ill-gotten wealth as a result of all these “criminal” acts, although without showing one iota of evidence that the so-called ill-gotten wealth exists—no bank accounts, no sudden increases in net worth. No mention of having gone through SALNs. Just a blanket accusation. There are other lesser charges against Valencia, which are claimed to be also baseless.

The Sandiganbayan also saw fit to issue an arrest order on the whole kit and caboodle. Gloria Arroyo is under hospital arrest, and so is Manoling Morato. Then there are Valencia and one Benigno Aguas, the PCSO’s budget officer whose only involvement seems to be that he certified that the funds were available (because they were), but hey, the more the merrier, and he is accused of plunder, too. The rest, including Uriarte, are nowhere to be found.

But here’s the kicker. Valencia had three choices that would have kept him out of jail: 1) to fly immediately, and wait for the next administration (he had ample time to do so); 2) to malinger, so that at least he would be confined in a hospital rather than in the Camp Crame PNP Custodial Center; or 3) to play ball with some representatives of the administration who guaranteed no arrest/problems for him as long as he testified against Gloria Arroyo (that he had no knowledge of Gloria Arroyo’s plans, if any, for the intelligence funds, was immaterial).

He turned his back on all three, and chose the “Tuwid na Daan.” He turned himself in, secure in the knowledge that he was innocent, and certain that he would be immediately granted bail since the Ombudsman’s charges of ill-gotten wealth, much less plunder, were not backed up.

Poor man. Fifty days in jail, with no end in sight. Only consider: He turned himself in on Oct. 4. His arraignment was 11 days later. The bail hearings were set for the end of October (29,30,31). Then resumed Nov. 22 (cancelled due to brownout) and 23.  Another 2-week interval (Dec. 7). And then, a 6-week break until Jan. 22.

Christmas in jail. So much for “Tuwid na Daan.” It does not bear contemplating.