The other court

The legal battle is finally getting interesting in the impeachment court. I can actually sit through the first two hours before lunch without feeling drowsy. But the more intense battle is taking place in the court of public opinion.

For those who believe Vice President Sara Duterte does not deserve to remain in office, public opinion is critical in garnering the 16 Senate votes needed to convict her and permanently bar her from returning to government.

The battle in the court of public opinion is as fierce as the one in the impeachment court.

After three weeks of trial, it’s clear that nothing can change the minds of certain senators on whether the VP deserves to remain in her post. At least two senators are behaving like the lead defense counsels.

The VP camp is citing laws and rules that provide loopholes to invoke presumption of regularity in her confidential fund utilization. Some of those laws and rules actually cover mainly intelligence funds, which are given only to agencies whose functions involve national security, public safety and law enforcement.

But the points raised should lead to amendments in the auditing and other laws and rules covering confidential and intelligence funds or CIF. Strictly limiting the number of civilian agencies entitled to confidential funds would be a good starting point.

VP Sara has started slipping in the surveys – an indication that she is vulnerable to public outrage against corruption.

There has been an explosion of memes poking fun at her utilization of secret funds, as VP and when she was secretary of education. Becoming the object of such memes usually indicates eroding mass support or popularity in our country.

The Dutertes are no political babes in the woods; they surely understand the importance of the battle for people’s hearts and minds.

*      *      *

As the prosecution laid out its case for Article 1 covering the confidential funds, the VP’s main defense revolved around the presumption of regularity, and the lack of specific prohibitions on certain illegal acts or omissions imputed on her.

These include the withdrawal in one go of P125 million in cash from the Land Bank of the Philippines, done four times for a total of P612.5 million, which the former bank manager described as “unusual... but not suspicious.” Also the disbursement of the P125 million in just 11 days in the gift-giving month of December 2022, or over P11 million per day. The disbursements included the “reward” of P70,000 in medicines to one Mary Grace Piattos, and the rental of a safehouse for P2 million a day.

The defense also cites the fact that Malacañang itself approved the grant of confidential funds to the VP, back when the UniTeam was still intact (although hanging by a thread almost from the start).

To this, the prosecution has an answer: getting secret funds from Malacañang doesn’t exempt the recipient from responsibility for fiscal prudence and accountability, since the funds are public and subject to laws and rules governing graft, malversation and related offenses.

Former Commission on Audit commissioner Heidi Mendoza said the withdrawal of such huge amounts of cash should have raised red flags at the Landbank. She told “Storycon” on One News last Wednesday that there is a COA rule limiting cash withdrawals by government agencies to just P250,000 per transaction. Larger amounts would have to be withdrawn through checks.

Mendoza admits that she doesn’t know if the prohibition still exists. She retired from COA on Nov. 11, 2015, to become the under-secretary-general for the United Nations Office of Internal Oversight Services.

She said there are also specific auditing standards for considering that public funds have been used for “personal” purposes, which is how COA auditor Roderick Wamil classified the VP’s utilization of her confidential funds.

Mendoza agreed with what Wamil told the impeachment court last Wednesday – that a COA order disallowing an expenditure and ordering its reimbursement is executory and therefore final. An appeal is allowed only before the Supreme Court, she said, but only if abuse of COA discretion is invoked.

She stressed that even if a case is brought before the Supreme Court, regularity would be presumed and the COA would still proceed with its order unless restrained by the SC.

Mendoza pointed out that if every COA order must wait for judicial resolution to become final and executory, the SC will be swamped and cases could drag on forever.

She cited Simeon Marcelo, who when he was ombudsman used such executory orders from the COA in going after public officials for graft and related offenses.

*      *      *

Another defense argument in the court of public opinion is that the VP is being singled out for selective prosecution. Other agencies including the Office of the President have confidential funds; why not the second highest official of the land?

Selective prosecution is one of the toughest defense narratives to dispel.

In disputing it, the prosecution is constrained by the fact that several elements in this issue are beyond its control, starting with the sincerity of Bongbong Marcos’ declaration that in his anti-corruption campaign, he is president not just of his family or friends, but of all Filipinos.

There’s also the weakness of the judicial system, under which VIPs like former senator Bong Revilla can be granted bail for the normally non-bailable charge of malversation of public funds, while his co-defendants are denied the same privilege. The Sandiganbayan’s explanation? The kickback allegedly received by Revilla from flood control contractors for endorsing their projects came from private sources, so public funds aren’t involved.

At Wednesday’s hearing, a gaslighting expert also wanted to know if state auditors distinguished between what constitutes an illegal, irregular or improper act.

The point embodies the defense tactic: the VP may have committed “unusual” acts or engaged in conduct unbecoming of the second highest official of the land. But do these justify her removal from the position in which she was installed by 32 million voters?

For the answer to this, senator-judges will also be monitoring the court of public opinion.