Nonbinding endorsements

Endorsements and recommendations are such a commonplace in a sharply hierarchical society like ours that it is difficult to say what legal significance they may have. When a person occupying a high political or social rank endorses an individual for appointment, or a contractor for a project, or an applicant for public assistance, what kind of responsibility does the endorser assume? Legally, perhaps hardly any. Culturally, a lot—given that the power of lawmakers in our country is so diffuse they can be ignored only under pain of sanction.

The more highly unequal a society is, the more their patronage is sought, and the more it is dispensed as a medium of social power. Like money, however, the more it is freely given out, the cheaper it becomes.

Patrons are only too keenly aware of this.  And so, even as they try to accommodate every request for all kinds of recommendations, they find a way of signaling which endorsements are to be treated seriously and which ones casually. One influential person I know once told me that meaningful endorsements from his office always bear his full signature, whereas pro forma recommendations carry only his initials.  But, he adds, nothing quite compares to the value of a personal follow-up call to communicate the urgency of a particular endorsement.

These considerations will become increasingly relevant as legislators who have been accused of stealing from their Priority Development Assistance Fund allotments try to minimize their participation in the siphoning of public funds by the dubious nongovernment organizations linked to Janet Lim-Napoles. One of them, Sen. Jinggoy Estrada, claims that it was not he but the local government officials who chose these NGOs as contractors. He said he was merely endorsing the requests sent to him by the local government units. “They were the ones who actually endorsed the NGOs.” We get here a glimpse of the defense’s line of argument: Lawmakers are not liable because these are nonbinding endorsements.

Senator Estrada says his office has on file letters from local government officials requesting funding for all kinds of projects. Two of these letters are supposed to have come from the mayors of Infanta and General Nakar. These local town executives have now come out questioning the authenticity of these letters. “I am not aware of any project implemented nor any project delivered in my town,” Filipina Grace America, a former mayor of Infanta and now its vice mayor, told the Inquirer. She said the documents that were used carried her forged signature and did not have the required resolution from the municipal council. As to the list of supposed project beneficiaries, she protested: “Not one from Infanta knows those names on the list.”

The modus for this multibillion-peso racket is now getting clearer. The bogus NGOs took care of all the necessary documentation and did all the follow-up work leading to the conversion of the PDAF into cash. In the early days, it appears they took the trouble of getting the signatures of local town executives for projects that they (the NGOs) themselves designed. They delivered overpriced and generally useless kits to the communities, and paid kickback to the mayors. But the bulk of the PDAF proceeds went to the lawmaker, the officials at the implementing government agency, and the cooperative bureaucrats at the budget and auditing offices. The rest was kept by the syndicate allegedly headed by Napoles in her role as principal fixer.

Later, the menu they offered their clients in Congress became more varied. Depending on how much a lawmaker demanded in kickback, they adjusted the package. The scheme quickly evolved to a point where it was possible to dispense completely with the participation of the LGUs. The higher the kickback demanded at the top, the more it became necessary to design ghost projects, invent lists of beneficiaries, and forge the signatures of local executives.  Everything now depended not just on the lawmakers’ explicit involvement, but also on the willingness of the heads of the implementing agencies to play host to these fictitious projects, and on the readiness of budget and auditing officials to look the other way and pretend that everything was regular.

One might have expected that the bigger the amounts, the more everyone would be more careful in protecting themselves from the fallout of a possible exposure. But for 10 years, maybe everything functioned so smoothly that people became careless. Soon some lawmakers were having kickbacks delivered to their homes. They or their chiefs of staff did not mind hobnobbing in public with the pork barrel queen herself.

Yet, so demanding is the law that all this evidence—from the endorsement letters to the public socializing with the alleged brains of the PDAF scam—would amount to little unless there is solid proof that kickback was indeed paid. Signatures can always be disowned. Photographs taken during social occasions can be dismissed as inconsequential. But documents showing deposits, withdrawals, and transfers to and from bank accounts cannot be denied.

We can only hope that this is the kind of unassailable proof the Department of Justice has in its hands. The accounting notebooks kept by Benhur Luy and the whistle-blowers are important insofar as they can tell the investigators where to look. But lawyers will say that by themselves these have little probative value. As vital as they are, the whistle-blowers’ testimonies have to be corroborated. At no other time has the state needed more witnesses on its side. It boggles the mind to think that the cases that have been filed represent only the tip of the iceberg.

[email protected]