Diokno: Accountability should be central issue in NBN probe

The Supreme Court decision upholding the executive privilege invoked by Romulo Neri on three key questions asked of him by senators abruptly put an end to the Senate investigation on allegations of bribery and overpricing that attended the government’s national broadband network project. While many expressed dismay with the way the ruling has impeded the quest for the truth on the NBN deal, not a few also heaved a sigh of relief as the probe, with the way senators had been conducting it, appeared not to be headed for any resolution anytime soon.

But two weeks ago, the Senate announced that it might consider resuming hearings after a new witness surfaced to divulge that President Gloria Macapagal-Arroyo supposedly secretly met with officials of the Chinese firm ZTE Corporation in Shenzhen, China in November 2006, months before it bagged the NBN project. The witness, identified only as “Alex,” even came out with photographs of the President with her husband, the First Gentleman, playing golf at the Shenzhen Golf Club. Even former House Speaker Jose de Venecia Jr., who was with the First Couple during the Shenzhen visit, is being urged to testify everything that he knows about the NBN scandal.

In case the investigation continues, what should come out of the hearings in order that we come to an appropriate closure to the NBN fiasco? We solicited the views of some people to put the situation in proper perspective.

Accountability should be central issue in NBN probe
by Jose Manuel Diokno

THE central issue of the ZTE-NBN probe should be accountability. The public officials responsible — and the private persons in cahoots with them — should answer for what has happened. A good, clean government is impossible without accountability.

In conducting the investigation and resolving the issue of accountability, it is important that three questions should be addressed:

• Who should be held accountable, and for what act/s or omission/s?
• On what grounds?
• Based on what proof?

Once these three questions have been answered, the probe must determine if there are any gaps in existing law that should be filled by legislation. The bottom line should be, does existing law provide adequate means to hold the involved officials publicly accountable? If the answer is no, legislation should be pushed to correct the law’s inadequacy.

Since congressional inquiries are conducted “in aid of legislation,” the ZTE-NBN probe should result in legislative proposals to prevent similar transactions from happening in the future, to impose stiffer penalties on those responsible, and to fill in the gaps in existing law.

Congress may also wish to consider enacting legislation recognizing the doctrine of “command responsibility” for heads of office who knew or should have known that their subordinates were committing acts of graft and corruption yet did nothing about it or chose to look the other way. This can be done by amending the provisions of Executive Order No. 292 (the Administrative Code of 1987) on administrative disciplinary cases.

Congress, in addition, should enact legislation allowing witnesses in graft and corruption cases to perpetuate their testimonies so that they will not have to wait (often for many years) before they can testify in court. If the witnesses, for example, in the Kuratong Baleleng salvaging case had been allowed to perpetuate their testimonies in 1995, they could have immediately been relocated after testifying. The long delay in the case, coupled with the fact that the accused were free while the witnesses were confined for years in safehouses because of the danger to their lives, eventually led them to leave the Witness Protection Program. This has been going on for a long time and should be changed.

Role of key players and citizens

Every member of society can — and should — play an active and positive role in holding our public officials accountable. Whether we like it or not, the reality is that our officials are more likely to go astray if they know we are not looking. As citizens we must do everything we can to hold our officials accountable; we cannot just expect that they will do so. We must persist in pestering, pressuring and demanding public accountability in all levels of government, until our leaders learn that they cannot place self-interest above the interest of the people.

In my experience, raising people’s awareness and encouraging them to act collectively to challenge an unjust government practice or policy is crucial to effecting real change in society. When citizens and groups come together in peaceful activities aimed at assailing policies and practices that generate injustice, they lose their feeling of dependency and develop a sense of empowerment that is the real impetus to changing society to genuinely help uplift people’s lives.

Of the government institutions, the Supreme Court will definitely play a key role. As the final arbiter of the Constitution, the Court will be called upon time and again to decide on the limits of executive power. At the moment, the Court is deliberating on the Senate’s motion for reconsideration in the executive privilege case of Secretary Romulo Neri. But the ZTE-NBN probe has produced other legal issues that may end up in court:

• The authority of the Department of Justice (DOJ) to conduct a fact-finding inquire of the ZTE-NBN project;

• The refusal of the National Economic Development Authority (NEDA) to provide the Senate with its records, i.e., the minutes of the meetings of the Investment Coordinating Committee (ICC) where the ZTE-NBN project was taken up;

• The issue of executive privilege, which may come up again in the ZTE-NBN probe or in other congressional inquiries; and

• The related issue of national security, which is more and more frequently being used by government authorities to foil attempts to gain access to records and documents by legislative bodies, concerned citizens and organizations.

These issues have far-reaching consequences not only for the ZTE-NBN probe and other probes but also, and more importantly, for the basic issue of accountability and human rights. Power without accountability breeds corruption. It is only when our government has internalized the principle of public accountability that our society can truly get better.

In considering what citizens can and should do, the words of the late Ka Pepe Diokno are instructive:

“There are two strategies we could follow: either convince the government to change policies or change the government. However, as long as elections remain as farcical as they have become under martial law, it is unrealistic to expect to change the government through elections, and to change it through violence could be justified only as a last resort, after all peaceful efforts to convince government to change policies have failed. So the question is, how can we convince government to change policies?

In two ways, one as individuals, the other as a group.

As individuals, we can refuse to accept meekly the violations of our rights and those of others. We can go to law against those who trample on our rights and stand witness when the rights of others are trampled upon. We can initiate or join petitions, protests and public demonstrations against abuses. At the very least, we can publicly show our sympathy for the victims of abuse and our condemnation of the abuses. If we have a way with words, we can write about what is happening; if we have a talent for music, we can compose and sing songs of freedom; and we can always speak the truth. Never mind if our words and our songs are not heeded. They will linger in the air, and one day they will be heard.

x x x

So we can act effectively as individuals. But we can act even more effectively as a group. Ninety years ago Rizal reminded us that “ang isang tingting ay madaling baliin, nguni’t mahirap ang isang bigkis na walis.” [A single stick is easy to break, but not a whole broom]. The time is now for us to heed this advice, to go beyond the confines of our family and close friends and open ourselves to people: people from all walks of life, of all religions and ideologies. We must learn to work with them to redeem our rights both as individuals and as a people. For these purposes, we must help others see reality and organize themselves. We must work as organizations, and with other organizations here and abroad devoted to the same noble cause of human rights. We must create new ways of voicing the aspirations of our people and of making these aspirations heard.”

As an appropriate closure to the ZTE-NBN saga, those responsible should be identified and fully investigated. Those against whom there is sufficient evidence should be charged, prosecuted and, if the charges are proven, punished accordingly.

Jose Manuel Diokno is the executive director of the Diokno Law Center, a training institute for lawyers and paralegals. He is also the national chair of the Free Legal Assistance Group, the oldest and largest organization of human rights lawyers in the Philippines.