Why Harry makes you want to puke

ress Secretary Harry Roque never ceases to amaze—and annoy. He makes you want to puke.

  After Pharmally employee Krizle Mago testified at a Senate Blue Ribbon committee hearing that her company swindled the government in a multi-billion PPE supply contract, Roque simply  shrugged it off when asked how Malacañan Palace feels about it.

   He said the whistleblowing exposé was not substantive evidence because it came “only” in the form of oral testimony.

   Then to buttress his own credibility for giving that unfocused nugget of forensic insight, he said, and I loosely quote him, “nung ako’y nagtre-training pa ng mga abugado, sinasabi ko hangga’t maari dapat  physical evidence ang ating dapat ibigay sa hukuman kasi kung testimonya lang talk is cheap. Pwedeng mabili, pwedeng matakot.  Hanapan po natin ng subtantiated evidence.  Hindi lang po yung testimonya ng isang tao “ (when I was still training lawyers, I would say as much as possible let's submit physical evidence to the court rather than testimonies, because talk is cheap. It can be bought, a witness can be threatened).

   I couldn’t help but count how many points that one statement is wrong about.

ONE. All the physical evidence, as well as documentary evidence, is in. The supply contracts, delivery invoices, receipts for payments disbursed by the government, COA reports red-flagging the deal, as well as sworn statements of the witnesses obtained by the committee, even ahead of the actual taking to the witness stand of this witness. The physical evidence is in, too, showing tampered safety and expiry certifications, etc. As far as the material quality of these PPE’s is concerned, for purposes of inspecting them for commensurate “pricey-ness,” you really only need a representative sample of N-95 masks, plastic faceshields, etc  to exhibit to the Senate committee. The whole country is wearing the rest of the evidence.

TWO. The testimony of Krizle Mago is the substantiating evidence. The gaping chasm of price difference between the government-procured PPE’s and their corresponding prices in the freemarket is just an abstract mathematical difference until somebody provides context. More importantly, even if somebody in the company had designed the scheme to defraud the government all that is speculative until somebody says, “Yes, sir, I received an order from my leader and I followed it.”  Mago testified that she received an order from company higher-ups to mislabel, misdeclare and misdeliver billions in pesos worth of PPE’s to the government. Not only that, she also relayed the order down the line  and testimonies by other collaborating witnesses established that the order trickled the whole way down to the warehouseman who all followed it. So there is primary evidence, substantiating testimony and collaborating testimony. You can’t ask for anything more.

THREE. Talk is not cheap. Mago did not testify under a mango tree. She did so in front of the Blue Ribbon committee of the Philippine Senate, before whom she raised her right hand and swore under oath to tell the truth, the whole truth and nothing but the truth, under pain of perjury if she lies.  Roque’s saying that a testimony can be bought cheap is really a bit of a Freudian slip. Only someone who has done it before can regard testimony—a sacrosanct legal obligation—as commodity to buy, with a ballpark pecuniary estimation of its cost, viz., cheap.  A circumspect rephrasing: “pwedeng mabili, pero ewan natin kung magkano” (it can be bought, who knows how much). As to the “pwedeng matakot” part there’s nothing Freudian about it, to go by how witnesses against Sen. Leila de Lima were procured.

FOUR. Krizle Mago was a witness of the government—particularly, of the Senate. They subpoenaed her. The Senate hearing was not an adversarial judicial proceeding, it was not a hearing in a criminal or civil suit. There is no accused, no complainant, no petitioner or defendant. It was a fact-finding hearing—not even an investigation—that will not culminate in a Judgment. Even if it exposes actionable violations of law, it is Roque’s branch, the Executive Branch, through the prosecutorial arm of the Department of Justice, that must file the necessary case—which it won’t—against erring private individuals whose testimonies connect the wrongdoing to high government officials.

FIVE. Roque works for the government, who is the defrauded party in these anomalous transactions. Imagine yourself getting scammed and the scammer comes forward to publicly confess he scammed you. You say, “Whoa! Stop right there! You cannot say that you scammed me just like that, you have to present substantive evidence. Why should I believe you?” Can you hear how funny that sounds? Harry cannot.

SIX. Pardon me if the rest sounds boring because its all lawyer gobbbledygook. But I would advise some of the pañeros he said he trained to forget a little of what they learned from him in this regard. You don’t compare physical evidence with testimonial evidence to rank them. Different species. Apples and oranges. Physical evidence is critical in a murder case. You’d love to get your hands on a smoking gun—which won’t help you very much in a libel case. For that you need documentary evidence, like a newspaper clipping of a libelous article—which won’t help you in an oral defamation case, that can only be proven by the testimony of a witness who heard the uncouth remarks. See what I mean, Harry? Different tool for different jobs, and there are nuances even between similar tools. So a flathead screwdriver is not “better” than a Philips crosshead screwdriver, even if they’re both screwdrivers. One can’t do the job of the other.

SEVEN. Krizle Mago’s testimony is not worthless just because its testimonial. Now its time to compare evidences belonging to the same species to rank them. The testimony “Yes, sir, the PPEs are overpriced” is crap.  If Mago’s testimony had been that broad and generic, Harry would be correct—it has to be substantiated. But if the testimony is “Yes, sir, I was given an order to overprice the item, and I followed it. I also ordered others to do the same”  That testimony is 24-carat gold, having a probative value of the highest order under the Rules. It’s called an admission against one’s own interest.  Under oath, the woman is admitting she committed a crime (no, it’s not a self-incriminating testimony, she wasn’t on trial, she is not an accused) fully aware of the possible repercussion. But hearkening to that small still voice of honesty embedded within her conscience, she gave that testimony. Shame on anyone who doubts it, especially if that person represents the supposedly victimized party. In a bipolar conflict of interest, you must advocate the interest of the party you represent. This is an onerous contract resulting in a gross disadvantage against the government who represents the people. Remember the people, Harry? Your words, your actions, your whole predisposition should reflect your advocacy for the party you represent. Since you represent the—uh—wait, let me go back to Freud...(c) 2021 Joel R. Dizon

NOTE FROM JOEL: Hi, folks! Recently, I started a YouTube channel which is called "Parables and Reason" It  is kind of similar to this blog but using the video format. You can check out my channel by clicking the link below:

 Joel R. Dizon - PARABLES AND REASON

The Privilege of Means

he facts are scanty and slow in coming but the general picture is informative enough. Julian Ongpin checked in at a hotel in La Union with his girlfriend, Breana “Bree” Jonson, where on the morning of September 18, 2021 she was found dead.

Both of them tested positive for cocaine.  Police arrested Julian for possession of 12.6 grams—I keep wondering why these  weigh-ins always just barely clear the 10-gram indictable cutoff—but would not charge him of anything having to do with Bree’s death. After a few hours in custody, the prosecutor ordered him released supposedly because there was not enough evidence to charge him with  homicide. A dead  body, CCTV footage showing them together, and his actual presence during the discovery of the body, are all compelling evidence, but not enough for investigators.

So it shouldn’t be surprising that possession of cocaine and a positive test of its actual use are not enough evidence to detain Julian beyond 36 hours, either. A day and a half—that’s the longest time you can detain someone arrested without a warrant in his case. Before that time runs out, the prosecutor has to indict him and—most importantly—state on the indictment that the case is unbailable. But the prosecutor can  only do that after conducting a regular preliminary investigation. Julian’s case could not be submitted for emergency inquest because his arrest did not fall under any of the circumstances for a valid warrantless arrest. I know you’re confused, because he was arrested without a warrant.

Yes, he was. Under 36 hours from his arrest without a warrant, the arrest was still valid. But as the 36-hour time limit draws near, the police had better be able to justify the arrest and submit complete evidence to make a charge stick. Either that or they should ask the prosecutor for more time to tidy up their work and make a more deliberate presentation at a preliminary investigation. But in the meantime, as the 36-hour deadline expires, the prosecutor has to order Justin released, unless he signs a waiver stating that he, too, wishes to take part in that preliminary investigation at the expense of remaining in detention beyond 36 hours.  I never advise a client to sign a waiver like that because with or without one it’s your constitutional right to participate in the preliminary investigation anyway. That waiver is just one of those   martial law relics designed to protect the provocative bottoms of arresting officers.

Of course, non-lawyers are enraged that this scion of Roberto V. Ongpin, one of the richest oligarchs in the Philippines, is walking around free, despite the non-bailable nature of the crime for which he was arrested.  He was arrested but he was NOT indicted. He was not indicted because he was NOT charged.  In fact, he didn’t even have to post bail.

A friend of mine laments that this is not the familiar track of events when less illustrious suspects are involved in similar crimes. I can only agree. Usually, when the person arrested cannot afford to hire top-flight lawyers to remind police and prosecutors of the correct procedure, these people tend to be sloppy and  cavalier about everything. “May pang-piyansa ka ba? Isasampa na namin itong kaso” (We’re filing the case,  can you post bail? )

The ordinary citizen doesn’t even know that the police have to release him in a short time under the pressure of skipping a preliminary investigation. All he knows is that in a full-blown preliminary investigation he has a sporting chance of getting the case dismissed for a variety of reasons. Sometimes police don’t even show up in preliminary investigations involving tons of cocaine, to say nothing of a paltry 12.6 grams. So they happily sign a piece of paper saying they don’t mind staying in a likely COVID-infested jail cell a few extra weeks.  If they refused to sign that waiver, the case will be filed no matter how strong or weak the evidence is but they have to post bail regardless.  That they cannot afford so they might as well waive the detention limit to buy a regular preliminary investigation and not an abbreviated inquest, so to speak.

This is where Julian’s being obscenely wealthy comes in. Julian’s early release, as bitter a taste as it leaves in the mouth, is neither anomalous nor unusual. He can afford to post bail, which  means he can dare the prosecutor to file the case already. The prosecutor turns to the police and asks them if they’re confident of their investigation findings and evidence at that point already.  

Put yourself in the shoes of the police. You have only done literally a few hours of investigations, you haven’t talked to all relevant witnesses, and the few you have talked to have not given signed written statements yet. The lab results are not yet in, and the autopsy hasn’t even begun. Meanwhile Julian is on his cellphone talking to a battery of Makati lawyers with double-digit IQ’s and triple-digit incomes. If you ask for more time, Julian walks away in the meantime.  If you file a weak case that is dismissed, Julian walks away for good. What do you do?  The La Union police asked for more time to investigate, and the prosecutor obliged

I think the prosecutor should have filed the case, both for the drug possession and homicide. Given the facts and evidence on hand at the time, they are both weak cases for sure. But a prosecutor is only looking for probable cause. The rest of  the evidence—lab results, autopsy report, witnesses statements—all these will come available by the start of the trial, which is a good several weeks away at least.  If the prosecution is worried that there may not be enough evidence to convict Julian of either crime, need anyone remind them that all that means is he is not guilty of the crimes? We live or die with the evidence we have. It is what it is.

When lesser mortals run afoul of the same law, they end up languishing in detention, or worse as stiff cadavers because “nanlaban” (put up a fight)—that’s par for the course as police investigations in drug cases go, so best of luck to you suing them at the ICC. It happens because the victim lacks the wherewithal to whip up widespread public outrage or sympathy.

So far, the only special treatment I have seen the government apply in this case is transferring the venue of the preliminary investigation to Manila. That is special because in criminal cases venue is jurisdictional. A crime must be investigated and tried in the place where it happened. Finding Julian with  12.6 grams of cocaine with his dead girlfriend, to me, doesn’t present a difficult or novel point of law that only Manila-based forensic capability can resolve, justifying a transfer. What the optics of the transfer move feeds though is speculation that the vast Ongpin legal resources have greater opportunities to inform the preliminary investigation proceedings in Padre Faura than in provincial La Union.

It will be interesting to follow this  case. Police have not released too much information to enable us to piece together the elements of homicide, if they are present in Julian’s overt actions around the time Bree died. In fairness, he didn‘t flee the crime scene. That will always count in his favor. Being a principal by direct participation is not the only way to become liable for someone’s death. One can be liable because of indispensable cooperation, too. But it seems the Ongpin lawyers have got that covered, developing the defense theory that Bree committed suicide. You can only be a principal, accomplice or auxiliary in a crime. Suicide is not a crime, no matter if it rhymes with homicide, parricide and infanticide. So even if Bree killed herself with Julian’s enabling assistance, that won’t make him liable. We don’t have a special law specifically punishing assistance in a suicide.

Maybe we should. © 2021 Joel Rodriguez Dizon

NOTE FROM JOEL: Hi, folks! Recently, I started a YouTube channel which is called "Parables and Reason" It  is kind of similar to this blog content-wise. You can check out my channel by clicking the link below:

 Joel R. Dizon - PARABLES AND REASON