AN OPEN SECRET

The World Bank report on bid rigging and other corrupt practices in connection with the national road construction project did not reveal, but merely provided evidence of a long standing practice in infrastructure projects by the government. The interviews of the WB Integrity Vice President detailing the bid rigging and pay-off to the politicians, recently provided by Sen. Panfilo Lacson, is not something new to us.

It is a well-known fact that corrupt politicians, from the municipal to the national level, always have cuts (better known as "commissions") in various infrastructure projects being implemented by them. It all starts with the bidding process. Prospective bidders for a project, who usually know each other, will agree on the winner, with the losers receiving a pay-off. A variation of this is that the favored bidder - because it offered the most attractive commission to those implementing the project - will be tipped-off with the winning bid price. To the contractor this latter scheme is more favorable because it reduces the cost of bribery.

Still another methodology is for the bid administrators not to soil the bidding process, allowing it to go smoothly until the awarding. Feelers will be sent to the winning bidder-contractor to put up "facilitation fees" before the project is awarded. Of course, nobody among the bidders knows yet who won the bidding. This is to insure against the winner not giving in to the project administrators' demands; if the winner refuses, they could always approach the other bidders who may only be too happy to oblige.

Now that the favored contractor has been awarded the project, it's time to line the pockets of the public officials in charge of the project. In most cases, I would assume that the pay-off comes earlier since it is easier to have leverage pending award of the project.

The first scheme is what is known as the "everybody happy" system. Everybody - from the bid participants to the public officials in charge of the project - gets his cut. Investigators from the FBI anti-corruption task force and Ombudsman should take heed of this system as from here, they could extract evidence from unsatisfied participants; there could be instances when somebody complains for not getting paid well. So much for "everybody happy."

The contractors involved in these corrupt practices are as guilty as the scheming public officials. Their willingness to give commissions perpetuate these dirty practices. I have yet to see one brave soul from these contractors, despite the pervasiveness of the practice, come out and positively identify corrupt public officials. Obviously they want to protect the profitability of their industry. And how, one might ask, do they still profit from these tainted projects for having already shelled so much money for bribery? Just look at the quality or costs of our infrastructure projects: either we are cheated out of the quality of their materials or their prices are bloated.

These substandard infrastructures are yet again the source of corrupt money that will soon line the already deep pockets of contractors and crooked politicians. Is it still a wonder that the repairs of our roads and bridges never stop? So the cycle of corruption goes on.

The inconvenience and danger of this can readily be seen. Our already messed up traffic system gets further clogged, delaying movement of goods, supplies and people. The saddest part is lives are put in danger. When substandard buildings or bridges collapse people will get hurt or even die.

In the end, the WB report will probably remain only with what it is: a report. Corruption in the infrastructure area is so pervasive that I doubt it very much there would be many public officials who would be willing to pursue it. It is a very lucrative industry and one of the major sources of ROI, and at the same time capital, for those extravagant campaign spendings. Just do the math and see for yourselves how paltry the salaries of public officials are vis-a-vis the expenditures they incur to acquire and maintain power.

EDSA: WHAT COULD HAVE BEEN?

Twenty three years ago thousands of people from all walks of life massed at Epifanio Delos Santos Avenue (EDSA) to demand the ouster of former strongman Ferdinand E. Marcos. This climactic event in Philippine history, which came to be known as the bloodless People Power Revolution, toppled the Marcos regime - ending his decades-long totalitarian rule that was characterized by corruption, official abuses, human rights violation, suppression of free speech, and a tanking economy.

More than two decades have passed, but until now pundits are still debating about the significance and contribution of EDSA. Regardless of what people think about it, I think EDSA I was an important turning point in our history. It provided an opportunity to start with a clean slate after Marcos turned the country into tatters. But the leaders of the so-called "revolution," united only in ousting Marcos, were not prepared for this ultimate objective. Political aspirations and convenience dictated much of their actions.

What Cory Aquino should have done is to institute sweeping reforms. Reform is not even the right term; the more inclusive word "change," - that is, "revoultionary change" - is more like it. A thorough and exhaustive investigation should have been done to round up all those who were in cahoots with the dictator and place them behind bars, and not allow them to roam freely as a lot of them still do now; heck, we even allowed them to assume high positions in the government. We are too forgiving a country or, should I say, too indifferent for allowing such travesty to happen.

Those who assumed power after Marcos was ousted lost sight of the fact that a revolutionary government had just been installed. It was the right time to purge the evils of the previous regime in a top-to-bottom shakedown; the bloated bureaucracy should have been cut down, projects that do not work brought to a halt, questionable foreign loans (those that only benefited private interests) reviewed and renegotiated or perhaps repudiated, iniquitous laws repealed, and personalities who helped engineer and benefited from the suppressive regime brought to jail.

No other time could have been more appropriate, politically and legally. The newly-installed government was popularly backed by the people; the international community recognized its legitimacy; and the Supreme Court gave its imprimatur of legality. As history would have it, however, the sweeping or revolutionary changes that the people expected - after putting their own lives on the line in what could have been a completely refurbished government that puts country first before everything - were nowhere to be found. (Photo from Richard Deats homepage)

THE BETRAYAL OF NICOLAS V. ROMULO

The promulgation of Nicolas v. Romulo on February 11, 2009 drew a maelstrom of anti-US sentiments not seen since the heyday of the U.S. military bases in our country. The Supreme Court in this case reiterated its affirmance of the validity of the Visiting Forces Agreement (VFA) in the earlier case of Bayan v. Zamora by saying that, contrary to the position of those opposing the VFA, the US recognizes the VFA as a valid and binding international obligation on its part which, therefore, complies with the requirement of Sec. 25, Art. XVIII of the Philippine Constitution. This provision requires agreements involving the presence of foreign bases, troops or facilities in the Philippines to be recognized as treaties by the foreign contracting state.

When the Constitution requires a foreign contracting state to recognize its agreements with the Philippine Government regarding the presence of foreign bases, troops or facilities in our country as treaties, what becomes determinative is the law of such foreign country. Did the US treat the VFA as a treaty under its laws? The US Constitution requires the concurrence of the US Senate for the validity of treaties entered into by the US Government. Although US officials recognize the VFA as a binding international obligation of the US, this did not make it a treaty. At best, it is merely an executive agreement. We can readily see here the unequal treatment accorded us by the US Government - or should we say the continuous kowtowing of our officials to our one-time colonial master; while we have given the VFA the more dignified status of a treaty by going through the motion of having it concurred by the Senate, the US merely gave it the status of an executive agreement which, under US laws, is inferior to federal laws. A treaty - side by side with federal laws - on the other hand, is next only to the US Constitution in importance in the hierarchy of laws.

In addition, the US Supreme Court ruled in the 2008 case of Medellin v. Texas that for treaties or international agreements to become binding domestic laws in the US, such treaties or agreements must be self-executing (meaning, by their terms they are immediately implementable) or the US Congress has enacted laws implementing them. The VFA is neither self-executing nor supported by an implementing legislation by the US Congress. This undercuts the argument that the VFA is recognized as a binding international committment in the US. The inequality of the situation is that while we made ourselves bound by the VFA, the US did not.

BACKGOUND ON THE VFA/DANIEL SMITH CONTROVERSY

Lately, we have been hearing a lot of noise about the Visiting Forces Agreement (VFA) brought forth with the recent decision of the Supreme Court in the Suzette Nicolas rape case. For those of you who want to be in-the-know and weigh in on the issue, this is a brief summary.

In December 2006, US Marine Lance Corporal Daniel Smith was convicted by the Makati Regional Trial Court for raping a certain Suzette Nicolas while participating in joint military exercises with Philippine armed forces pursuant to the VFA between the United States and the Philippines concluded in 1998.

While detained at the Makati city jail he was transferred to the US Embassy in Manila by agreement between the Philippine Department of Foreign Affairs (DFA) and the US Ambassador to the Philippines known as Romulo-Kenney Agreement, purportedly in accordance with the VFA.

Suzette Nicolas and others, via petition to the Supreme Court, sought the transfer of Smith back to Philippine detention facilities on the ground that the VFA and the Romulo-Kenney Agreement were void for being contrary to the constitutional provision that requires agreements or treaties involving foreign troops presence in the Philippines to be recognized as treaties by countries to which such foreign troops belong. It was argued that, contrary to the constitutional requirement, the VFA was not recognized as a treaty by the United States. Some senators and cause-oriented groups decried the unequal treatment the United States has accorded us by not submitting the VFA for the concurrence of its Senate as provided in their Constitution concerning treaties, in the same manner that our own Senate had done so.

On February 11, 2009, the Supreme Court ruled that while the US did not submit the VFA for concurrence by its Senate, the VFA has been recognized by representatives of the United States as a binding international agreement regardless of how it is denominated, whether as a treaty or executive agreement. As such it does not ran afoul of our constitutional requirement. Besides, the Supreme Court found the VFA as an implementation of the 1951 RP-US Mutual Defense Treaty, and this treaty has been concurred in by the US Senate.

But our senators, chiefly Fancis “Kiko” Pangilinan and Joker Arroyo, are not satisfied and are moving for the abrogation of the VFA. What do you think?

BARRING DEPARTURE OF "TOURIST WORKERS" MAY BE ILLEGAL

As part of its declared intensified campaign to prevent Filipinos from becoming victims of illegal recruitment and human trafficking, the Bureau of Immigration (BI) has recently barred 133 Filipinos from leaving the country through the Diosdado Macapagal International Airport (DMIA) on suspicion that they are “tourist workers.”

“Tourist workers” is the term being used to describe Filipinos going to countries like Singapore, Malaysia and more recently to Dubai, using only tourist visas, but whose real purpose is to obtain employment.

While the avowed objective of the BI is laudable, the restriction of citizens’ mobility by preventing them from leaving the country may be constitutionally questionable as a violation of the right to travel.

Article 3, Section 6 of the Constitution provides as follows:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (italics supplied)

The above provision clearly recognizes the right of every citizen to travel or move from one place to another. And movement from one place to another includes travel within the Philippines and travel from the Philippines to other countries. In the 1989 case of Marcos v. Manglapuz – which involved the right of the Marcoses to bring the remains of deposed President Ferdinand Marcos to the Philippines – the Supreme Court ruled that the constitutional right to travel does not include returning to the Philippines from other countries.

Every person, therefore, has the right to leave the country freely. In totalitarian regimes, like in the former Soviet Union, East Germany or in present-day North Korea, there is no such right of mobility. Citizens of these countries could not freely move from one place to another, much less leave their countries, to prevent them from bonding together and form groups to overthrow the government. The intention is to stifle or suppress dissent.

The only limitations on the exercise of such right are (1) lawful court order or (2) law, in the interest of national security, public safety or public health. Thus, a court order can validly restrain an accused or convicted person from leaving the country by means of a hold departure order, or an administrative regulation from the Department of Labor can prevent the deployment abroad of domestic workers pursuant to the constitutional mandate to protect labor as held in Philippine Service Exporters, Inc. v. Drilon.

In the absence of a valid court order or law that authorizes the restriction on the right to travel, the BI’s program of preventing so-called “tourist workers” from leaving the country suffers serious doubts as to its validity or legality. Mere suspicion that these persons are not really going to the intended country of destination as tourists is not enough. There must be clear standards or guidelines provided by law to establish that these persons are indeed seeking employment abroad under the pretext of going on a tourist visit, otherwise the program will be prone to abuses and its reach would extend even to legitimate tourists who will clearly suffer great inconveniences.

Finally, it bears noting that our countrymen are going at great lengths to find decent employment that our government has miserably failed to provide. These 133 people who may have been unlawfully deprived of their constitutional right to travel probably invested their life’s savings, pawned their valuables, mortgaged their homes, or borrowed money they could ill-afford to pay just to realize the promise of better money abroad and free them from the clutches of poverty, only to be turned back by agents of a government that has proven inept at providing decent-paying jobs to its citizens.

At a time when the unemployment rate is 7.4%, we cannot blame our countrymen for taking the short cuts in finding livelihood for their families. Unless our government gets serious in the business of governance no amount of regulation or enforcement measures can prevent this continuously growing diaspora. If government cannot provide a better alternative, it is probably better off allowing these determined individuals to find their destinies abroad and instead put in place an effective mechanism to protect them against abuses and other wrongdoings.

OFFICIAL ABDICATION

If there is anything that our government officials are good at, it is their uncanny ability to remain in power and enjoy the perks of their office while abdicating themselves of the responsibility to which they have been sworn into. This is the picture we have been getting lately from our congressional leaders and heads of prosecutorial agencies in the wake of the controversy on the blacklisting of local contractors by the World Bank (WB). Don't get me wrong, this is not the first time that our government officials have acted this way, but of late it has become increasingly clear how far they have gone in betraying the trust of their office.

First, congressmen have cleared the blacklisted contractors in haste by saying there is no evidence that would substantiate WB's allegations that these contractors have engaged in the nefarious enterprise of rigging the bidding for a national road project. In an article by the Philippine Center for Investigative Journalism (PCIJ), it revealed that most of the members of House of Representatives's Public Works Committee, that held hearings on this blacklisting issue, are engaged in the construction business themselves.

Wouldn't it be more appropriate for these congressmen to have left the exoneration of the contractors to our investigative agencies, like the Department of Justice or the Ombudsman? A congressional committee investigates not to determine guilt or innocence, but to determine the effectiveness of existing laws or how a particular issue could impact legislation.

Second, when it became the turn of senators to conduct hearings on the matter they turned the tables on WB by lambasting it for not sending any representative or additional information about allegations of involvement of top personalities like First Gentleman Mike Arroyo and even the president herself. The Ombudsman Merceditas Gutierrez - the government's top prosecutor tasked to investigate corruption in the government - even had the temerity to complain that the WB supplied her only with a short report about the bid rigging; that she did not receive the detailed and bulky report that Sen. Ping Lacson has.

Evidently our government officials have conveniently abdicated the functions of their office by refusing to act on a report by an international and independent body like the WB about corruption in the government. Let it be made clear that the WB does not have any political motive in implicating high government officials. It has nothing to gain by it, pecuniarily or politically.

By pointing to the WB's failure to cooperate in the investigation in not appearing before the Senate and not providing more detailed information, it seems it is now suddenly the responsibility of the WB to investigate and prosecute corrupt officials. More than any one else, it should be our government officials who must zealously pursue investigation of this bid rigging scandal and go to the doorsteps of the WB, if need be, to gather more information and not the other way around. We should be thankful rather than cynical of the WB report because it is to our best interest that we weed out corruption in the government, unless of course our government officials are engaged in a disturbing pattern of covering up official wrongdoing at the highest level, which is somehow not much of a surprise anymore with controversies after controversies about corruption at the highest level plaguing our government.