Thursday, 14 October 2010


Solita Monsod

What is the point of having independent fact-finding commissions, only to disregard their recommendations? What is the point of constituting an investigation and review committee, only to take someone else’s advice?

I ask the questions, because three days ago, PNoy effectively scrapped the recommendations of the Incident Investigation and Review Committee (IIRC) regarding the August 23 hostage crisis, and then two days ago, he granted amnesty military coup plotters, in total repudiation of the recommendations on the matter of both the Davide Commission (1990) and the Feliciano Commission (2003). His actions give rise to legitimate concern as as to the competence and/or integrity of the decision-making processes in his administration.

Take the IIRC, which was formed by the President to make, in its first phase, a comprehensive account of the sequence of events leading to the killing of the hostages and the hostage-taker, evaluate police action and the response of offices and private entities to the incidents, and recommend the filing of appropriate actions against those found culpable as intermediate actions to focus on the hostage-taking incident. With the DOJ secretary as its chair, IIRC completed its work as scheduled, holding marathon hearings, working on weekends. It submitted its report on September 17, which the President immediately transmitted to the Chinese government.

At the same time, however, while he had the main body of the report posted in the Official Gazette, the President did not allow the publication of its recommendations, on the ground that these still had to be reviewed by his executive secretary and his legal counsel. While he was certainly within his rights to do so, the decision to subject the review committee’s work to a second review raised a lot of eyebrows -- just because you can do something doesn’t mean you should do it. In any case, this action left the President wide open to doubts and suspicions about what that Review of the Review signified -- because while IIRC recommendations were just that -- recommendatory -- its members could not be said to be either incompetent or with any partisan political axes to grind (which is presumably why he appointed them in the first place). Was the President being extra careful? Or was he having the report reviewed because he did not like its recommendations (which were being kept from the public ) with respect to some of his closest friends or allies? Was there going to be a whitewash?

I chose to give the President the benefit of the doubt, even as the Ochoa review took more time (23 days vs 15 days) to complete than the IIRC’s work. But now, with the release of the Ochoa report, together with the publication of the complete IIRC report (including recommendations), allows a comparison between the two; and taking them together with the President’s announcements, there is no more room for doubt. The Ochoa report was effectively a whitewash. And PNoy adopted it in toto over the IIRC report.

What it whitewashed was effectively the culpabilities of presidential sidekick Rico Puno, close friend and ally Mayor Alfredo Lim, and (then) PNP Director General Jesus Verzosa (to whom Aquino thinks is owed a debt of gratitude because Verzosa did not allow his police to be partisan during the last elections. Vice Mayor Isko Moreno was also cleared, but his case can be considered as a collateral benefit (as opposed to collateral damage).

A side-by-side comparison of the Ochoa and the IIRC recommendations shows glaringly where (and how) the whitewash takes place.

The recommendations of the IIRC and the Ochoa reports were almost identical with respect to Police Chief Superintendent Magtibay, Police Director Leocadio Santiago Jr., Police Chief Inspector Santiago Pascual, Ombudsman Merceditas Gutierrez, and the media: gross incompetence and serious neglect of duty; less grave neglect of duty; gross incompetence; referral to the House of Representatives for possible impeachment; and referral to the KBP for possible sanctions for the violations of their code of ethics, respectively.

Then there were recommendations regarding which the two reports had superficial differences, to wit: a) in the case of Deputy Ombudsman Emilio Gonzales, the IIRC recommended that its findings be referred to the Office of the President for determination of possible administrative offenses, while the Ochoa report (being in the OP) recommended that he be charged with gross neglect of duty and possibly gross misconduct; b) the Ochoa report included Gregorio Mendoza in the list of those to be charged, and mediaman Jake Maderazo in the list of those to be referred to the KBP for sanction -- while the IIRC did not include Mendoza (as he was already facing charges at the time of their report) nor Maderazo (it had determined that the latter was just a spokesman for RMN, who they were after was the radio station manager of RMN’s DZXL); c) and the final superficial difference was with respect to Police Superintendent Orlando Yebra, who the ES/CPLC considered only an ad-hoc negotiator, which presumably carries less culpability, while the IIRC maintained he was chief negotiator, whether ad hoc or not, and therefore was fully culpable. I leave it up to the reader to decide which report had the right of it when it came to these superficial differences in recommendations. PNoy, as earlier mentioned, chose Ochoa.

Which leaves the recommendations where there were major-major differences between the two reports. First, the IIRC recommended, for all the government and police officials involved, that preliminary investigations be conducted by the appropriate government agencies, for any possible criminal liability arising out of the administrative offenses. The Ochoa report gave a blanket absolution from any criminal liability. Which gives rise to the questions: did Ochoa and Presidential Legal Counsel de Mesa conduct their own preliminary investigations? If so, when?

The second major-major difference is where the whitewash comes in. Where the IIRC recommended charges of less grave neglect of duty for Versoza, gross negligence for Puno, and negligence for Moreno, Ochoa cleared them all. And where IIRC recommended that not only administrative but criminal charges be brought against Lim for dereliction of duty and gross negligence, Ochoa gave him a figurative slap on the wrist -- simple neglect of duty and misconduct in office.

How, when they were based on the same set of facts, did the two sets of recommendations differ as night from day? In the case of Versoza and Puno, they were cleared because Ochoa considered the hostage-taking a local crisis rather than a national crisis, so the perceived inaction/indifference of Versoza and Puno were actually the correct behavior! Ochoa didn’t quite put it that way, but that is certainly the gist. The IIRC considered it a national crisis (and obviously so did PNoy).

With respect to Lim, Ochoa had to go through logical hoops to show that Lim’s sins of omission and commission were only simple neglect -- one felt, on reading it, that it was a legal defense brief. And obviously, if Lim was almost not guilty, Isko Moreno, who was merely his subordinate, had to be cleared. So the ingenious Ochoa found a lusot: even though both Moreno and Lim had testified that Moreno as vice mayor was vice chair of the Crisis Management Committee, Ocho insisted that the crisis management manual did not clearly designate him as such. So Moreno, having no responsibility, clearly could not have made any mistakes.Whitewash? What do you think?

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