Archive for January, 2011


CASE 0044: PEOPLE OF THE PHILIPPINES VS. ALEX LINGASA, JORGE BI-AY AND JOHN DOE (G.R. NO. 192187, 13 DECEMBER 20101, MENDOZA, J.)

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January 13, 2011

 

PEOPLE OF THE PHILIPPINES VS. ALEX LINGASA, JORGE BI-AY AND JOHN DOE  (G.R. NO. 192187, 13 DECEMBER 20101, MENDOZA, J.)

X —————————————————————————- X

DOCTRINES

 

 

 

WHAT OBSERVATIONS ARE MADE KNOWN TO THE TRIAL COURT SUCH THAT ASSESSMENT OF CREDIBILITY OF WITNESSES IS BEST LEFT TO THE TRIAL COURT?

It is a well-entrenched doctrine that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination.[1][8] The trial court has the singular opportunity to observe the witnesses “through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sign, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.”[2][9]

THE RULE IS THAT FINDINGS OF FACTS OF TRIAL COURT ARE HELD CONCLUSIVE. WHAT ARE THE EXCEPTIONS?

This rule admits of exceptions, however, such as when the trial court’s findings of facts and conclusions are not supported by the evidence on record, or when certain facts of substance and value likely to change the outcome of the case have been overlooked by the lower court, or when the assailed decision is based on a misapprehension of facts.[3][10]

X X X X X X

Thus, in the absence of any of these exceptions warranting the reversal of the decisions of the courts below, the general rule applies.  In addition, the Court notes that the trial court’s findings have been affirmed by the appellate court which, therefore, makes said findings generally conclusive and binding upon this Court.

 

 

ACCUSED SAID HE IS ONLY AN ACCOMPLICE BECAUSE HIS BLOW AGAINST THE VICTIM WAS NOT FATAL. SC SAID THERE WAS STILL CONSPIRACY. WHY? BECAUSE HIS BLOW WAS WHAT CAUSED THE ACCUSED TO FALL DOWN AND ALLOWED THE REST TO HACK HIM.

Indeed, the accused is guilty as principal by direct participation.  By his own admission, he delivered the first blow on the unwary victim. He initiated the deadly assault by hacking the hapless victim on the nape, causing the latter to immediately lose his balance and fall to the ground. Right after his initial attack, his co-accused rushed towards the poor and helpless victim and stabbed him several times in the back until he died. As confirmed by the autopsy report of Dr. Lorna V. Transmontero, the Municipal Health Officer of Cauayan, Negros Occidental, the victim died of multiple stab wounds inflicted on several parts of his body.

Considering the above circumstances, the Court cannot hold the accused liable as a mere accomplice because his active and direct involvement in the brutal killing of the victim was too obvious.

XXXXXXXXXXXX

 At any rate, the records clearly prove that there was conspiracy in the commission of the crime. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Where all the accused acted in concert at the time of the commission of the offense, and it was shown by such acts that they had the same purpose or common design and were united in its execution, conspiracy is sufficiently established.[4][11]

In the case at bench, the initial hacking by the accused followed by the multiple stabbing by his co-accused proves that they acted in concert at the time of the brutal killing. The fact that each one of them carried a deadly bladed weapon shows that they acted pursuant to the singular purpose of killing the victim.  It is not important who delivered the fatal blow.  In conspiracy, it matters not who among the accused actually killed the victim.  The act of one is the act of all. Each of the accused is equally guilty of the crime committed.[5][12] 

TRUE WITNESSES ARE NOT FLAWLESS

Truth-telling witnesses are not expected to give flawless testimonies, considering the lapse of time and the treachery of human memory.  The Court has stated time and again that minor inconsistencies in the narration of witnesses do not detract from their essential credibility as long as their testimonies on the whole are coherent and intrinsically believable.  Inaccuracies may in fact suggest that the witnesses are telling the truth and have not been rehearsed.[6][13]  Instead, they may even serve to strengthen their credibility as they negate any suspicion that their testimonies have been fabricated or rehearsed.

X —————————————————————————- X

 

D E C I S I O N

 

MENDOZA, J.:

Challenged in this appeal is the July 16, 2009 Decision[7][1] of the Court of Appeals (CA) which affirmed the March 27, 2003 Decision[8][2] of the Regional Trial Court, Branch 61, Kabankalan City, Negros Occidental (RTC), finding accused Eliseo Bi-ay, Jr. y Sarintas alias “Gideon” guilty beyond reasonable doubt of the crime of murder. 

On March 31, 1997, an information for Murder was filed against accused Eliseo Bi-ay, Jr. (Eliseo) and his co-accused, Jorge Bi-ay and Alex Lingasa, which reads as follows:

That on or about the 26th day of December, 1996, in the Municipality of Cauayan, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in company of their other co-accused, whose true name is still unknown and herein designated only as “JOHN DOE,” armed with a bolo, conspiring, confederating and mutually helping one another, with evident premeditation and treachery, with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault, and hack one RODRIGO CLARO, thereby inflicting multiple fatal hack wounds upon the body of the latter which caused his death.

CONTRARY TO LAW.[9][3]

When arraigned on April 3, 2000, Eliseo pleaded not guilty to the charge. Trial proceeded but only with respect to him as his co-accused were then at-large.

The respective positions of the parties were succinctly recited in the subject decision of the CA as follows:

On December 26, 1996, at around 7:00 in the evening, the victim Rodrigo Claro, together with his son Baby Boy Claro, were in the house of the victim’s father, Francisco Claro, in Sitio, Barangay Caliling, Cauayan, Negros Occidental. While Rodrigo and Francisco were talking with each other, accused Jorge Bi-ay, Alex Lingasa, and appellant Eliseo Bi-ay, Jr. alias “Gideon” arrived.  Accused Jorge Bi-ay, being the eldest in the group, then approached Francisco near the side of the house and asked for coffee. Francisco readily accommodated his visitors by getting coffee and sugar from the store of his younger sister nearby his house, and boiled some water. When the coffee was ready, accused Jorged [sic] requested the victim Rodrigo to serve coffee to his two companions, accused Alex and appellant Eliseo, who were waiting outside, which Rodrigo acceded.

Rodrigo then went out of the house and while carrying the two (2) cups of coffee, he noticed that his 10 year-old son, Baby Boy Claro, was following him. He turned his back and told his son to stay behind. When he was about to proceed, appellant Eliseo who was ahead of him, suddenly hacked him on the nape which caused him to lose his balance and fall to the ground. Accused Alex followed suit and stabbed Rodrigo at the back by thrusting a bladed instrument. Accused Jorge also went towards Rodrigo and stabbed him.

Witnessing the vicious assault on his father, Baby Boy Claro ran and shouted to his grandfather for help who then went out from his house with a bolo. Within ten (10) meters away, Francisco saw appellant delivering hacking blows on his son who was then lying on the ground face up, while accused Jorge and Alex immediately withdrew and fled as Francisco nearly approached them. Thereafter, appellant also ran away after all of them took turns in hacking the victim.

By the time Francisco finally reached his bloodied son, the victim already succumbed to the multiple stab wounds he sustained which caused his untimely death.

After the incident, Dr. Lorna V. Transmontero, Municipal Health Officer of Cauayan, Negros Occidental conducted an autopsy and yielded the following post mortem findings:

1.        Hacked wound at the forehead mid portion 3 cm. in diameter.

2.       Hacked wound at the L side of the mouth 4 inches in diameter.

3.       Hacked wound at the R side of the lower portion of the ear 4 inches in diameter.

4.       Hacked wound at the L nipple upper portion 1 inch in diameter.

5.        Hacked wound at the L side of the hypochondrium 1 inch in diameter.

6.       Hacked wound at the R side of the R nipple upper portion 1 inch in diameter.

7.        Hacked wound at the posterior portion of the neck 2 inches in diameter.

8.   Hacked wound at the posterior portion of the R upper arm 2 inches in diameter.

9.    Hacked wound at the posterior portion of the R lower arm 2 inches in diameter.

10.  Hacked wound at the lower portion of the R leg 2 inches  in diameter.

11.   Hacked wound at the L upper leg 2 inches in diameter.

On the other hand, appellant Eliseo denies the accusation against him and interposed the defense of alibi. He claims that on December 26, 1996, at around 5:00 in the afternoon, he and Jerry Siblag were in Sitio Kalapisan, Barangay Inayawan, Cauayan, Negros Occidental, to rent a sound system from Uldarico Alipan to be used in celebrating the birth anniversary of his deceased grandmother. Together with Uldarico, they left the latter’s house and brought the sound system to his father’s house at Sitio Kantyang, about seven (7) kilometers away, and arrived at around 7:00 in the evening. He stayed at the house of his father the entire evening and never left the place.[10][4]

On March 27, 2003, the RTC rendered a decision finding the accused guilty beyond reasonable doubt of murder, the dispositive portion of which reads:

WHEREFORE, the Court finds accused Eliseo Bi-ay, Jr. alias “Gideon” guilty beyond reasonable doubt of the crime of murder as charged qualified by treachery and hereby sentences him to a penalty of imprisonment of reclusion perpetua and to indemnify the heirs of Rodrigo Claro the amount of P50, 000.00 by reason of his death and to pay the costs.

It is ordered that said accused be immediately remitted to the National Penitentiary.

Let this case be placed in the archives to be revived as soon as accused Alex Lingasa is apprehended.

The case against accused Jorge Bi-ay who is already deceased is DISMISSED.

SO ORDERED.[11][5]

 

          Aggrieved, Eliseo appealed the RTC Decision to the CA assigning this lone error:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY AS PRINCIPAL IN THE COMMISSION OF THE CRIME CHARGED WHEN HE IS ONLY LIABLE AS AN ACCOMPLICE. 

The CA noted that Eliseo raised the defense of denial and alibi during the trial of the case at the RTC but, on appeal, he argued that he could only be liable as an accomplice, and not as a principal.  In his Brief,[12][6] Eliseo assailed  the RTC for finding him guilty as principal by direct participation in the commission of the crime of murder against the victim.  He claimed that the prosecution failed to show clear proof that he conspired with his co-accused in the killing of the victim. His alleged cooperation in the assault on the victim was not indispensable, thus, he could only be held liable as an accomplice. Moreover, the credibility of the prosecution witnesses was doubtful because of the glaring inconsistencies and lapses in their narration of their version of the incident.

On the other hand, the prosecution counters that the role of the accused as principal by direct participation in the execution of the crime was clearly established. Moreover, the questioned discrepancies and inconsistencies in the prosecution witnesses’ testimonies are minor and trivial.

 

            On July 16, 2009, the CA rendered a decision affirming with modification the RTC Decision, the dispositive portion of which reads:

WHEREFORE, premises considered the assailed Decision of the Regional Trial Court, 6th Judicial Region, Branch 61, Kabankalan City, Negros Occidental, in Criminal Case No. 97-1893, finding accused-appellant Eliseo-Biay, Jr. y Sarintas alias “Gideon,” guilty beyond reasonable doubt of Murder, is hereby AFFIRMED with MODIFICATION. Appellant is hereby directed to pay the heirs of Rodrigo Claro the amounts of P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P25,000.00 as temperate damages in addition to the P50,000.00 as civil indemnity awarded by the trial court.

No costs.

SO ORDERED.[13][7]

          Hence, this petition raising this lone

ISSUE

 

 

WHETHER OR NOT THE ACCUSED-APPELLANT ELISEO-BI-AY, JR. y SARINTAS alias “GIDEON” IS GUILTY BEYOND REASONABLE DOUBT OF MURDER.

The accused argues that the facts established by the prosecution failed to show the existence of conspiracy in the killing of the victim. It was rather proven that he did not have any direct participation in the slaying because his initial hacking of the victim did not mortally wound him. The victim died after he was fatally stabbed in the back by his co-accused. Hence, he can only be liable as an accomplice because his participation was not indispensable compared with those of his co-accused.

Moreover, the accused claims that Francisco Claro (Francisco), testified on direct examination that he saw all the accused hacking his son. On cross-examination, however, his testimony was to the effect that he saw the other assailants fleeing away from the scene of the crime and the accused was the only one holding a weapon and stabbing the victim.

The Court finds no merit in the appeal.

It is a well-entrenched doctrine that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination.[14][8] The trial court has the singular opportunity to observe the witnesses “through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sign, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.”[15][9]

This rule admits of exceptions, however, such as when the trial court’s findings of facts and conclusions are not supported by the evidence on record, or when certain facts of substance and value likely to change the outcome of the case have been overlooked by the lower court, or when the assailed decision is based on a misapprehension of facts.[16][10]

In the case at bench, the Court has not come across any misapprehension of facts. The prosecution witnesses, Francisco and Baby Boy Claro (Baby Boy), saw with their own eyes the brutal killing of the victim.  The Court finds no indication that either Francisco or Baby Boy was lying.

Thus, in the absence of any of these exceptions warranting the reversal of the decisions of the courts below, the general rule applies.  In addition, the Court notes that the trial court’s findings have been affirmed by the appellate court which, therefore, makes said findings generally conclusive and binding upon this Court.

Strangely, the accused interposed inconsistent defenses, as noted by the CA.  In the RTC, he claimed denial and alibi.  On appeal, he put up the defense that his participation in the murder was merely that of an accomplice instead of that of a principal by direct participation. Clearly, his change of defense strategy rendered his defense impotent.

Indeed, the accused is guilty as principal by direct participation.  By his own admission, he delivered the first blow on the unwary victim. He initiated the deadly assault by hacking the hapless victim on the nape, causing the latter to immediately lose his balance and fall to the ground. Right after his initial attack, his co-accused rushed towards the poor and helpless victim and stabbed him several times in the back until he died. As confirmed by the autopsy report of Dr. Lorna V. Transmontero, the Municipal Health Officer of Cauayan, Negros Occidental, the victim died of multiple stab wounds inflicted on several parts of his body.

Considering the above circumstances, the Court cannot hold the accused liable as a mere accomplice because his active and direct involvement in the brutal killing of the victim was too obvious.

For said reason, it is not even important to find out if conspiracy attended the commission of the crime. The conviction of the accused was not because of any conspiracy. He was convicted because he was positively identified by the eyewitnesses, Francisco and Baby Boy, as one of the assailants who actively and directly participated in the killing of Rodrigo Claro.

 At any rate, the records clearly prove that there was conspiracy in the commission of the crime. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Where all the accused acted in concert at the time of the commission of the offense, and it was shown by such acts that they had the same purpose or common design and were united in its execution, conspiracy is sufficiently established.[17][11]

In the case at bench, the initial hacking by the accused followed by the multiple stabbing by his co-accused proves that they acted in concert at the time of the brutal killing. The fact that each one of them carried a deadly bladed weapon shows that they acted pursuant to the singular purpose of killing the victim.  It is not important who delivered the fatal blow.  In conspiracy, it matters not who among the accused actually killed the victim.  The act of one is the act of all. Each of the accused is equally guilty of the crime committed.[18][12] 

On the alleged inconsistency or discrepancy in the testimony of Francisco, the Court finds none.  The alleged inconsistency is more apparent than real.  As pointed out by the CA, what he meant was that while he was still approaching them, he witnessed the accused ganging up on his son.  When he was already there, he saw the accused continuously stabbing him while his companions were running away.  Thus the Court considers innocuous whatever discrepancies there were in the testimony of Francisco.

Truth-telling witnesses are not expected to give flawless testimonies, considering the lapse of time and the treachery of human memory.  The Court has stated time and again that minor inconsistencies in the narration of witnesses do not detract from their essential credibility as long as their testimonies on the whole are coherent and intrinsically believable.  Inaccuracies may in fact suggest that the witnesses are telling the truth and have not been rehearsed.[19][13]  Instead, they may even serve to strengthen their credibility as they negate any suspicion that their testimonies have been fabricated or rehearsed.

 

WHEREFORE, the July 16, 2009 Decision of the Court of Appeals is AFFIRMED.

 

SO ORDERED. 

 

 

 

 

 

 

           JOSE CATRAL MENDOZA

                                                                                          Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

ANTONIO EDUARDO B. NACHURA     DIOSDADO M. PERALTA

               Associate Justice                                    Associate Justice

 

 

ROBERTO A. ABAD

Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                   ANTONIO T. CARPIO

                          Associate Justice

                                                                 Chairperson, Second Division

 

C E R T I F I C A T I O N

 

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                      RENATO C. CORONA

                                                                               Chief Justice

 

[1][8] People of the Philippines v. Jerry Bantiling, 420 Phil. 849, 862-863 (2001).

[2][9] People of the Philippines v. Ernesto Cruz, Jr. y Concepcion,, G.R. No. 168446, September 18, 2009, 600 SCRA 449, 464.

[3][10] People of the Philippines v. Johnny Bautista y Bautista, G.R. No. 188601, June 29, 2010.

[4][11] Id.

[5][12] People  v. Glino, G.R. No. 173793, December 4, 2007,539 SCRA 432, 455.

[6][13] People v. Jose de la Cruz, 452 Phil. 1080, 1095 (2003). 

[7][1] Rollo, pp. 4-19. Penned by Associate Justice Florito S. Macalino and concurred in by Associate Justice Stephen C. Cruz and Associate Justice Rodil V. Zalameda.

[8][2] CA rollo, pp. 17-23.

[9][3] Rollo, p. 5.

[10][4] Id. at 6-7.

[11][5] CA rollo, p. 23.

[12][6] Rollo, pp. 62-73.

[13][7] Id. at 19.

[14][8] People of the Philippines v. Jerry Bantiling, 420 Phil. 849, 862-863 (2001).

[15][9] People of the Philippines v. Ernesto Cruz, Jr. y Concepcion,, G.R. No. 168446, September 18, 2009, 600 SCRA 449, 464.

[16][10] People of the Philippines v. Johnny Bautista y Bautista, G.R. No. 188601, June 29, 2010.

[17][11] Id.

[18][12] People  v. Glino, G.R. No. 173793, December 4, 2007,539 SCRA 432, 455.

[19][13] People v. Jose de la Cruz, 452 Phil. 1080, 1095 (2003).

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LEGAL NOTE 0010: THE PLUNDER CASE OF GEN. CARLOS GARCIA

Filed under: LEGAL NOTES — 2 Comments

Trillanes: Garcia set to talk but got scared 
Philippine Daily Inquirer
First Posted 01:12:00 01/13/2011

Filed Under: Graft & Corruption, Military, Crime and Law and Justice, Judiciary (system of justice), Legal issues,agreements

Most Read

MANILA, Philippines—Ex-military comptroller Carlos Garcia, who has entered into a plea bargain with state prosecutors to elude a plunder charge, was “fronting” for a powerful person and wanted to talk about it two years ago, but was scared, Sen. Antonio Trillanes IV said Wednesday.

“Garcia is a front for somebody powerful. In 2009, he was willing to talk but he got afraid,” Trillanes said in an interview with ABS-CBN.

The senator declined to identify the powerful person but said he had disclosed the name to certain people in Malacañang. He said he had communicated and played basketball with Garcia when they were both in detention.

Days after news of Garcia’s plea bargain with prosecutors broke, Trillanes blamed the Office of the Ombudsman for the agreement.

Sen. Alan Peter Cayetano, chair of the Senate ethics committee, had asked the government to use Garcia as a witness to convict ranking officials behind the corruption in the Armed Forces of the Philippines (AFP).

“There’s a bigger fish that’s damaging our case, and we should use all opportunities to ask General Garcia who’s the bigger fish,” Cayetano said, agreeing that this should have been made a condition for the plea bargain.

Garcia is charged with plunder for allegedly stealing P303 million from state coffers. He is out on bail after pleading guilty to the lesser offenses of bribery and money laundering.

House inquiry

Two separate resolutions, one filed by Parañaque Rep. Roilo Golez, and another by Cagayan de Oro Rep. Rufus Rodriguez and Abante Mindanao party-list Rep. Maximo Rodriguez Jr., were filed Wednesday seeking an inquiry into the plea bargain.

“There is an urgent need to look into measures to obviate resort to such deals and acts with the end in view of improving the legal processes in our present criminal justice system, strengthening the existing law on plunder and other anti-graft legislation, and restoring the integrity and public confidence in the AFP, the Office of the Ombudsman and the Sandiganbayan,” Golez said.

Rufus Rodriguez said business groups, the clergy, former soldiers and former prosecutors had raised concerns about the plea bargain and were clamoring for its abrogation. He said the agreement could embolden other plunderers to take the same route.

The plea bargain was signed on Feb. 25, 2010, by Garcia and his lawyer Constantino de Jesus with Ombudsman Merceditas Gutierrez, Special Prosecutor Wendell Sulit, Deputy Special Prosecutor Robert Kallos, Deputy Special Prosecutor Jesus Micael, Assistant Special Prosecutor Jose Balmeo and Assistant Prosecutor Joseph Capistrano.

The agreement required Garcia to surrender to the state only P135.433 million worth of assets, and effectively cleared his wife Clarita and their three sons—his co-accused in the plunder and money laundering cases—of liability.

On March 16, 2010, the prosecutors and Garcia filed a joint motion for the approval of the agreement in the Sandiganbayan’s second division.

On May 4, 2010, the motion was granted and the agreement approved.

Golez noted that the agreement was made after a special Sandiganbayan division resolved to deny Garcia’s petition for bail on Jan. 7, 2010, on the basis of the fact that the prosecution’s evidence to establish his guilt was strong.

A month before Garcia was released on bail last December, prosecutors told the Sandiganbayan that he had “substantially complied” with the requirements set by the anti-graft court for the approval of the plea bargain.

This was according to a manifestation dated Nov. 22, 2010, and filed by the prosecutors handling Garcia’s case. It was signed by Balmeo and Capistrano.

The prosecutors said most of the assets listed in the plea bargain had been transferred to the state, as required by the Sandiganbayan in its May 4, 2010, resolution.

The Office of the Solicitor General (OSG), which has opposed the plea bargain and is seeking to intervene in the case, earlier said that the May 4 resolution showed that the court had approved the deal.

But the justices of the Sandiganbayan’s second division pointed out on Monday that several actions were required “before the plea bargain may be approved.” The justices said there was no approval of the agreement in the resolution.

Still, the OSG insisted that the agreement was “virtually” approved because Garcia had transferred some of his assets to the state, and was granted bail after being allowed to plead guilty to lesser offenses.

The assets to be transferred to the state include the Trump Park Avenue condominium in New York (P43.155 million); real estate in Iloilo (P10.69 million), Batangas (P7.60 million), Baguio (P2.8 million) and Guimaras (P165,372); and seven vehicles (P4.42 million).

Included as well are cash in Philippine banks amounting to P52.51 million; cash in US banks amounting to P13.85 million; 20,000 shares of stocks in IJT caregiver; and 3,000 shares of stock in Katamnan Corp.

Dissatisfaction

At a briefing for reporters, President Benigno Aquino III’s deputy spokesperson Abigail Valte expressed Malacañang’s dissatisfaction with Sulit’s explanation of the plea bargain.

Valte also took exception to Sulit’s claim that certain people were feeding Mr. Aquino wrong information on the plunder case.

“You should ask them why they are not forthcoming with the proper explanation,” Valte told reporters in reference to state prosecutors led by Sulit.

She said Sulit had not really answered the questions spawned by the agreement.

Strong evidence vs accused

Valte said Palace lawyers had studied the court records of Garcia’s case and found “strong evidence” against him.

To Sulit’s claim that the prosecutors believed they had a weak case because no military contractor or supplier came forward to testify against Garcia, Valte said the prosecutors were indeed not able to find them because there were “no real suppliers” as shown in the court records.

“Instead of saying that the President was given wrong information, they should start saying why they entered into such a deal,” she said. Reports from TJ Burgonio, Cynthia D. Balana, Leila B. Salaverria and Christine O. Avendaño

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LEGAL NOTE 0009: THE PIATCO DEAL

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Outlook
NAIA 3: a cautionary tale 

By Rigoberto D. Tiglao
Philippine Daily Inquirer
First Posted 05:35:00 01/13/2011

Filed Under: Government Contracts, Graft & Corruption

Most Read

THE QUAGMIRE of the Ninoy Aquino International Airport Terminal 3—which would have been our main gateway to the world—is a cautionary tale of an epic scale for our country. It dramatizes questions of paramount importance for our country and, perhaps, for many developing countries as well:

Which should take precedence in terms of state policy and action: the anti-corruption value or realpolitik? Should, or can a compromise be reached between these two different guides to action?

It’s amazing how many have so easily forgotten why the NAIA 3 contract of the Philippine International Airport Terminals Corp. (PIATCo), a consortium dominated by an obscure Chinese-Filipino firm and the German Fraport AG, was aborted.

Next to the tobacco excise tax issue and the BW Resources stock-manipulation case, the NAIA 3 in 2001 appeared to be the biggest case of corruption under the Estrada administration and even, purportedly, the first instance of corruption by officials of the new Arroyo administration. While the contract to build NAIA 3 was completed during the administration of President Fidel Ramos, the Estrada administration amended it in ways that allegedly gave PIATCo much bigger revenues.

Among these changes: for PIATCo to collect terminal fees in US dollars while remitting government share in pesos, which would allow PIATCo to profit from the local currency’s depreciation; the state’s effective guarantee on PIATCo’s loans, making it a risk-free borrower; and the scrapping of PIATCo’s obligation to build underground tunnels to connect the three terminals, which would have cost it P700 million.

What was suspicious about the PIATCo contract was its huge, so-called “soft costs,” that is, costs that were not for construction but for the other alleged requirements of the project such as regulatory approvals—for instance, $4 million paid to a shadowy company Datacenta to get the terminal designated as an export zone. What became a favorite coffee-shop topic was the mysterious Afredo Liongson, a former drug salesman, who got a $200,000 monthly retainer plus $2 million for “public relations” expenses, including such costs as $250,000 for the support of a small government agency. Rumors circulated that PIATCo was able to quickly involve in their project powerful personalities in the new government of President Gloria Macapagal-Arroyo.

Ms Arroyo called several meetings of her top officials and advisers to get their views on the PIATCo issue. These turned out to be very heated, even emotional debates. One faction argued that it was Arroyo’s obligation, especially since she assumed power basically through an anti-corruption revolt, to stop the contract. “Madame President, it is your moral duty to stop this contract,” one of her respected senior Cabinet officials once solemnly said in a meeting.

The other faction, composed of “pragmatists,” argued that the project was 97 percent completed, and that there was no stopping it since opening a modern terminal was crucial in attracting more tourists and foreign investors. Another realpolitik argument was: since the project involved not only a German firm but Japanese construction firms, to scuttle the contract would frighten off foreign investors who would see the country as one which does not honor obligations made by a previous administration. However, the country’s top five taipans who were originally asked by President Ramos to undertake the project, especially Lucio Tan, were all up in arms against PIATCo, and obviously mobilized their media assets to portray the contract as grossly unfair to government.

Arroyo ordered in 2002 first Solicitor General Alfredo Benipayo, and then the feisty presidential adviser for flagship projects Gloria Tan-Climaco to study the case. Both had the same conclusion: the PIATCo contract was so riddled with corruption that it had to be declared null and void. The Senate undertook its own investigation and reached the same conclusions.

In December 2002, and on the basis of the solicitor general’s official position, President Arroyo announced that as the country’s chief executive, she had to cancel a contract disadvantageous to government and acquired through graft.

Her stand was vindicated in May 2003 when the Supreme Court ruled the contract null and void on two grounds: First, that the Filipino proponent had no financial capacity to undertake the project; and second, that the changes in the contract were undertaken during the Estrada administration in violation of the legal requirements for such amendments. A lower court had also found PIATCo in violation of the anti-dummy law, as the Fraport emerged as the chief financier of the project.

It seemed a morality tale at that time, the victory of good versus evil.

But then amoral reality kicked in: the reality of the powerful government of the third largest economy in the world, Germany, obligated to defend its companies right or wrong, especially since Fraport is majority-owned by two state entities; the labyrinthine, expensive world of international law; the technicalities of the Philippine legal system; and of course the reality of the country’s best lawyers and even former government officials seeing the case as a lucrative source of income, and hence coming to PIATCo’s defense.

Eight years after it was scheduled to open, NAIA 3 is only partly operating and limited to certain domestic flights, while our operating international terminal is a national embarrassment. International lawyers’ fees and other related expenses in the meantime have cost, by one reckoning, over P1 billion.

It is not only a cautionary tale on the risks of an anti-corruption crusade, but a national tragedy as well.

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