Monkey business as usual in the Philippines

Posted at 10/17/2012 12:58 AM | Updated as of 10/17/2012 1:03 AM

In July we pondered whether and to what degree former Philippine President Arroyo's release on bail would be indicative of the eventual verdict in the electoral sabotage and plunder charges against her. We also wondered to what extent public perception of the prosecution's evidence in both cases will ultimately stand or be torn apart by a combination of evidentiary weakness, a corrupt judiciary, or both.

In a country where the legal and judicial culture is allergic to pre-trial discovery and habitually backslides into court-enforced fishing expeditions or the marshaling of evidence during trial, it may still be that the element of surprise is the rule in the Philippines, and transparency the exception.

Following eight months of hospital arrest, the regional trial court -- a court of plenary jurisdiction -- released Arroyo on bail in July, on the ground that the evidence in the electoral sabotage case against her was "weak." But on Oct. 4, the Sandiganbayan -- the specialized anti-graft court where her plunder case is pending -- issued an order again placing her under arrest. Arroyo's defense attorneys immediately moved for a bail hearing, and to place her, as before, under hospital arrest, instead of in a regular detention facility. This bail hearing is slated for Thursday this week.

While media circles are quick to point out that Arroyo was "rearrested," this can be misconstrued to mean that the same judge simply changed his mind, which isn't the case. "Plunder" and "electoral sabotage" are distinct offenses under Philippine criminal statutes which require different venues and courts. If one were to stay close to the law-in-the-books, one criminal case ought to have no bearing upon the other.

But the two cases have naturally become politicized -- so much so that black letter statutes and fine print criminal procedure may be bent, depending on a judge's own political persuasion and/or inclination toward self-promotion.

A conviction in just one of the charges will carry years (if not decades of imprisonment) for Arroyo, but a disaggregated judicial system such as that of the Philippines may bode well for the prosecution for the simple reason that the cases are severable: If the government were to fail in knocking down the accused in one charge in one court, it may still resort to case building for another charge under a different judge. In Arroyo's electoral sabotage case, where she has been on bail since July, the discretion of only one ordinary trial court judge was at stake, whereas the plunder cases are under the Sandiganbayan (roughly translated as the "People's Advocate" under the local vernacular).

Unlike ordinary trial courts, the Sandiganbayan is a specialized collegial court, equivalent to an appeals court, and consists of 14 associate "justices" and one "presiding justice." One can thus make a case that the recent arrest order had gone through greater deliberative scrutiny than the July bail order, with the latter issued by a lone judge.

On the count of plunder, Arroyo was charged with plundering the national treasury by diverting Php 316 million (approximately $7.5 million) from the funds of the Philippine Charity Sweepstakes Office. Arroyo is also facing a second plunder charge which alleges that she unduly intervened in a state contract with the Chinese firm ZTE Corporation -- a contract involving the national broadband network. Whereas in the electoral sabotage case pending before the ordinary courts, Arroyo is accused of conspiring with officials in Mindanao, the southern region of the country, of rigging the 2004 and 2007 national elections.

With the element of surprise as the rule in criminal trials, we think it is too early to tell whether an eventual conviction will follow. On its face, the fact that a former president is facing a string of charges operating in several criminal courts under a disaggregated judicial system will certainly allow prosecutors to play several hands of several cards. But in highly politicized cases such as this, public perceptions and expectations can bear upon judicial findings across the board -- one charge in one court, if lacking in evidence, being eventually dropped, can affect another judge's mind elsewhere.

Indeed this may have been the case in the impeachment trial of former Philippine Chief Justice Corona, an Arroyo appointee accused of taking up a "midnight appointment." In the impeachment trial, the House prosecution panel dropped five of the eight Articles of Impeachment, with just three formally submitted to the Senate impeachment court for judgment. In May, the Senate, voting 20-3, convicting Corona under Article II, which charged him of failing to disclose an accurate statement of his assets, liabilities, and net worth -- a requirement that arguably rises to the level of a constitutional obligation for Philippine public officials great and small.

The other impeachment charges, while dropped, accused Corona of unduly influencing the other members of the Supreme Court and of distorting the decisional process occurring between the genuine result of the deliberation and the formal promulgation of judgment -- all to favor Arroyo and her husband. Corona was, in fact, the chief of staff and spokesperson of Arroyo prior to her rise to the presidency. While charges were dropped, the media and the public mind however had been shaped in no small part by the associations and insinuations those very charges made. Certainly a Senate, sitting as an impeachment court, is no judicial court in the strict sense, but Arroyo's trial can showcase whether meaningful change in Philippine society is indeed taking place, or whether Filipinos are backsliding into the same monkey business that has occurred since the days of Marcos's Martial Law.

Looking at the machinations occurring -- which had Arroyo under "hospital" arrest for what was a previously undisclosed condition prior to charges having been made (she had no neck brace or "ailment" as president) rather than in a jail cell, and which have her sprung from her private hospital room on bail, while her lawyers and supporters presumably attempt to work their "magic" behind the scenes in making it all disappear -- one has to wonder if justice can truly stand a chance of being served in this case, and just how much progress has truly been made, or can be made, in such a judicial system. We have our doubts.

Edsel Tupaz was a private prosecutor of the House prosecution panel in the recently concluded impeachment trial of Philippine Chief Justice Renato Corona. Daniel Wagner is CEO of Country Risk Solutions, a cross-border risk management consultancy based in Connecticut (USA), and author of the new book "Managing Country Risk."

This article, which first appeared October 15, 2012 at the Huffington Post, is republished online with permission of the authors. The authors acknowledge a forthcoming article on the topic under JURIST.org.