How to Lose a PCGG Case

How to lose a PCGG case

By Solita Collas-Monsod
Philippine Daily Inquirer
First Posted 00:14:00 09/19/2009
Filed Under: Litigation & Regulations, Graft & Corruption,Government

This has to be another one of those “only in the Philippines” situations. In last week’s column, I wrote that Mariano Tanenglian, Lucio Tan’s younger brother, had offered to be a witness for the government in its case (Civil Case 005) against 29 individual defendants including Ferdinand Marcos, Lucio Tan and Tanenglian himself—in exchange for immunity from prosecution. His lawyers had met with the Presidential Commission on Good Government (PCGG)—Camilo Sabio, Ricardo Abcede, Tereso Javier and Narciso Nario attending—together with representatives of the Office of the Solicitor General (OSG) on July 13, 2009 to discuss the details, including a draft of the immunity agreement that they had prepared. Apparently, the meeting ended with the government side agreeing in principle to the draft agreement, and the only thing that was needed to seal the deal was the formal opinion of the OSG on the matter.

Such opinion did not materialize, and a follow-up letter was sent by the (new) Tanenglian lawyers on Aug. 19—but it was again met with a blank wall of silence.

Well, Tanenglian apparently ran out of patience with the PCGG, because on Sept. 9 his lawyers filed a motion with the Sandiganbayan, asking it to compel the PCGG to act on his offer to testify, and to reopen trial for his testimony.

The “only in the Philippines” part is not only that the government doesn’t seem to want to win this case (else it would have grabbed the golden opportunity to have a witness of this importance on its side); it is also that the witness who knows where the bodies are is the one begging the court to let him testify.

Both the PCGG and the OSG have a lot of explaining to do. I am informed that a newspaper reporter asked both the PCGG (a commissioner and the head of the legal department) and the OSG (the solicitor in charge of Civil Case 005) why they were keeping the Tanenglian offer in suspended animation. The answer he got was that Tanenglian had not agreed with the terms and conditions imposed by the PCGG/OSG. But not one of them could cite what those terms and conditions were. Their answer is also belied by the Aug. 19 letter of Tanenglian’s lawyers to

PCGG and the Sept. 9 motion of the same lawyers before the Sandiganbayan.
And while we’re at it, they should also answer why they fired Catalino Generillo Jr.—or more accurately did not renew his appointment as special counsel (PCGG), which expired end December 2008, or his deputation from the OSG which ended in November 2008. Generillo is the only lawyer on the government team who seemed to be taking any initiative or doing any serious research or coming up with fresh (and damning) evidence and witnesses to buttress the government’s case. That Generillo’s appointment as special counsel (he was originally hired in 2001 by Haydee Yorac—need one say more?) was not renewed becomes even more puzzling in light of what the PCGG head (Sabio) reportedly told him after a four-hour meeting on Jan. 14 of this year (Generillo thought that the renewal of his appointment—which has to be done every six months—was just a victim of the usual bureaucratic delay): “Good work. We are 100 percent behind you.”

The OSG should also be asked to explain why it was only after Tan’s lawyer, Estelito Mendoza, questioned Generillo’s credentials that it sent Generillo a “deputation” letter covering the period July-November 2008. Generillo tells me that in all his years at the PCGG, he had never ever received such a letter.

Another mystery that the PCGG and OSG should clarify: Why did they wait until June 29, 2009—or six/seven months after firing him—before they asked Generillo to turn over his exhibits? What does this delay say about their desire or willingness to successfully prosecute Civil Case 005? And as if to make up for their cavalier attitude toward the case, they asked him to turn over those papers by July 1.

Any lingering doubts about this issue vanishes when one learns that when Jaime Laya appeared at the Sandiganbayan to testify, in response to a subpoena (issued when Generillo was still in charge of the case), the OSG was taken by surprise. So when Mendoza objected to Laya’s being a witness, apparently there was either very weak or no rebuttal from the OSG.

Generillo, by the way, refuses to turn over the fruits of his legal research and labor to the PCGG/OSG—and as a result, the two have asked the Sandiganbayan to compel him to do so. In response (an Omnibus Motion), he has asked, among other things, that the trial of Civil Case 005 (or the government’s presentation of evidence or part of it) be reopened to allow the government to present Tanenglian as its witness—and Generillo will submit his exhibits as part of that testimony.

My guess, though, as to the real reason he is loathe to turn over those documents he unearthed to the PCGG and OSG is that they might get lost—as so many other documents in the possession of the PCGG have (conveniently?) gotten lost, such as the certified true copies of Marcos documents that the US Customs Service had mailed to the PCGG at its request. Generillo had searched high and low for it, fruitlessly.

Is it any wonder that the Republic of the Philippines loses so many of its cases? Not only can the defense pay for excellent lawyers like Estelito Mendoza; also, government lawyers seem to have either no ability, or no desire, or no willingness to do a competent job. And when they do, they get kicked out. Or face a captured judiciary.

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