Plunder me not

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AS EASY AS ABC By Atty. Alex B. Cabrera (The Philippine Star) | Updated July 30, 2017 – 12:00am

Plunder sounds like such a dark crime. The truth is, if it is committed by a high-ranking public official like a president (or a senator for that matter), it becomes glamorous. It is one of those crimes that “does” pay. How? By the exercise of presidential pardon. Yes, pardon for the plunderer obliterates the crime, and in Philippine politics, even the stain.

In a leading case, our Supreme Court (SC) resigned to the effects of absolute pardon granted by the president to one found guilty – “it releases the punishment and blots out the existence of guilt, so that in the eyes of the law, the offender is as innocent as if he never committed the offense.” The SC went on to opine on what remains to be the penalty of the pardoned. It said that pardon “cannot bring back lost reputation for honesty, integrity and fair dealing.” How so untrue this is when you talk about Philippine politics.

Former president Joseph Estrada, who vowed to reduce corruption in government by 80 percent before the end of his term, ended up being found guilty of plunder (in connection with, among others, misappropriation of excise tax on tobacco and the Jose Velarde account). He was pardoned by then president Gloria Macapagal-Arroyo. Thereafter, people ignored his conviction and elected him mayor of Manila, and he remains a strong political figure.

A president would want to pardon because of the inverse golden rule: Do unto others what you want others to do unto you. Pardon a past president, so the next president can pardon you too.

To be fair, this is not an exclusive Philippine phenomenon. It happens in the US. But in US politics, there is consequence. Then president Gerald Ford pardoned former president Richard Nixon for the Watergate scandal, then Ford lost to president Jimmy Carter in the next election with the Americans feeling betrayed over the Nixon pardon. This consequence is, however, not a risk in the Philippines. Our presidents have only a one-time six-year term, and they cannot seek reelection. They can make unpopular pardons because they will not court votes for reelection anyway.

I have always wondered what the wisdom is behind creating a separate Plunder Law from the Anti-Graft and Corrupt Practices Act. It’s for ill-gotten wealth of at least P50 million, but lawyers have used the defense that for plunder to happen, in the law, there must be a series of acts in perpetuating the crime. This is an added burden to prove guilt versus regular graft and corruption where one isolated transaction can already be a sufficient ground. The original anti-graft law could have just been amended to increase penalties based on certain aggravating circumstances.

Let me connect though with many of my readers. For regular folks dealing with the government, their problem is not government folks committing plunder or high-profile graft, but those sitting on their papers, or giving them the runaround, with unreasonable requirements and unreasonable delays.

Let me tell you that unless the government staff is doing this to extract money, there is no crime committed, but this is the important lesson I would impart. You may not have the grounds to file a case before the Ombudsman against the government official unreasonably withholding action on your papers, but you can file a grievance before the Public Assistance Office of the Office of the Ombudsman. I used this only once (so far) during my lifetime out of severe frustration. We never got to the mediation process because the local government became kind enough to expedite our request.

Back to plunder. Only the president can control the extent of his pardon. He could pardon out of mercy and say the public official pardoned cannot run for or hold public office anymore. There is no legal basis, however, to compel the pardoning president to qualify his pardon.

What could be demanded, though, is for the pardoned public official to return all the money he amassed through plunder. The Constitution gave the president giving the pardon the power to “remit fines and forfeitures.” In other words, to condone penalties, do not to allow the pardoned public official to keep what he stole. Thus, the people have the right to demand full transparency and accounting on this civil aspect.

Any president, with all his pardon powers, can liberate the criminal from jail time, and even allow him to run again for public office, sad as it may be. But the president must see to it that at least, all that was plundered is recovered. This is not penalty. This is returning money stolen from the people. To allow the pardoned to keep what he stole is to penalize hapless Filipino citizens so that a criminal can enjoy the fruits of his crime. A grave injustice that can make pardon a darker crime than plunder itself.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the Tax Committee of the Management Association of the Philippines (MAP). Email your comments and questions to aseasyasABC@ph.pwc.com. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.

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