Whistleblowers


What do Jun Lozada, Sandra Cam, Vidal Doble, and Primitivo Mijares have in common? They’re all whistleblowers whose guts enabled the nation to know about illegalities happening either in their offices or in their line of business.

Jun Lozada was of course the trusted associate of former National Economic and Development Authority Secretary-General Romulo Neri who was privy to acts of corruption in projects that passed the scrutiny of the NEDA. He is remembered as the one asked by Neri to inform proponents of the botched NBN-ZTE deal to “moderate their greed”. Such moderation was required apparently because the amount of “tong-pats” or padding for the project was equivalent to 100 percent of the cost of the proposed network.

Sandra Cam was the one who called our attention to presidential son Mikey Arroyo’s benefitting from the illegal numbers game, jueteng. Through her testimony, we knew how the incumbent representative of security guards in Congress and former presidential son received proceeds from jueteng in the august hall of Congress.

Vidal Doble for his part risked life and limb when he told the nation that as an intelligence officer, he had the original of the “Hello Garci” recordings – authenticating hence what we suspected all along: that President Gloria Arroyo cheated in the 2004 presidential election.

Primitivo Mijares, on the other hand, was a close associate of the dictator Ferdinand Marcos. He wrote what has become a bestseller book, “the conjugal dictatorship”, detailing the excesses of the former dictator and his spouse. Without a doubt, the book opened the minds of many to abuses of the dictatorship. Mijares, and later, one of his sons, were later killed. Until today, no one has been charged, much more punished, for these murders.

From our experience with these individuals, we know the inherent value of whistleblowers. More often than not, shenanigans in government commit crimes that only they and their close associates know about. Unless those in the know actually surface and detail what they know, the public would not be aware of these infractions.

Whistleblowers though, unlike state witnesses, currently have no protection in this country. Under the Witness Protection Program or under the Rules of Court provision on discharge of state witnesses, witnesses whose testimonies are indispensable in proving the commission of a crime, provided they do not appear to be the guiltiest, are entitled to testimonial immunity. This means that their admission into the WPP or their discharge as state witnesses comes with an incentive in the form of the state desisting from holding them responsible for the crimes that they would be helping to prove in court.

Whistleblowers, on the other hand, because their testimonies oftentimes are not indispensible or because of the secrecy, they appear to be among the guiltiest, cannot qualify for the WPP or for discharge as state witnesses. This explains why the Ombudsman has recently charged Jun Lozada with cases for corruption involving other transactions in the government office that he once headed. And yet, quite unfairly for whistleblowers, they do the exact same thing that those accorded immunity by our existing rules: they reveal the truth in order to give effect to public accountability.

The international trend today recognizes the need to provide protection to whistleblowers distinct from protection given to witnesses or discharge accorded to state witnesses. For instance, the UN Convention on Corruption calls on countries to “provide appropriate measures to protect” whistleblowers. Similar provisions are found in the European Union’s Civil and Criminal Law Conventions on Corruption, the African Union Convention on Corruption and the Latin American Convention on Corruption.

Likewise, an increasing number of countries have now passed legislation according both immunity and protection to whistle blowers. Furthermore, Transparency International’s Recommended Principles for Whistleblowing Legislation further asks states to incentivize whistle blowing and to provide rewards to those who will be whistleblowers.

In the Philippines, Senator Miriam Defensor-Santiago has a pending bill to provide these badly needed protection and incentives to whistleblowers. According to the good senator:

“Whistleblowers automatically expect retaliation for their honesty. They are usually accused of being malcontents trying to profit from their accusations. The fear generated by retaliations creates a chilling effect on the willingness of people to come forward and expose wrongdoing,”

Let us pass this bill into law soon.

NBN again?


When then-candidate Noynoy Aquino was courting the electorate, he vowed to annul the anomalous contracts of Arroyo and to hold her and her minions liable for their deeds. Primary of these sins was the scandal about the national broadband network contract with ZTE, which brought a little-known “Jun” Lozada into the limelight. It was Lozada’s foiled abduction and his contribution to modern lingo of “tongpats”, a moniker for pay-offs, that are best remembered of this scandal. Add to this the phrase “moderate your greed’ and what you have is a classic case study on how the past administration raided the public coffers for their purely private interests. The NBN-ZTE scandal, together with election fraud arising from the “Hello Garci” controversy, would also be mainstays in three impeachment complaints which I filed on behalf of civil society against then-President Gloria Macapagal-Arroyo. Two of these complaints were to be endorsed by then-Rep. and now President Aquino.

But what a difference a year and a half could make. Now that PNoy has been in power, not only has he failed to file even a single case in court against Arroyo. He also now appears to have “legitimized” some of these anomalous contracts, notably the national broadband network scandal. While he affixed his signature in the past on two impeachment complaints, alleging that Arroyo was liable to be impeached for her complacency in approving the NBN-ZTE contract despite her knowledge of bribery that attended the approval of the project, PNoy today is resurrecting the same dirty project and adopting it as his own.

The justification is that unlike Arroyo, President Aquino will not allow an overprice of the project to enable the project proponent to make pay-offs to government officials. This presupposes that the only objection against the NBN-ZTE is the mater of the “tongpats”. Nothing can be farther from the truth!

What PNoy has again completely forgotten, in addition to the fact that we had more than ample evidence to prove election fraud in the three impeachment complaints sans the self-serving and hearsay declarations of Zaldy Ampatuan, is that the overprice of the NBN-ZTE project was only one reason why it was infirmed. There were other equally important infirmities of the contract, primary of which is that observed by CCM’s co-convenor, the late Josie Lichauco, herself a former Secretary of the DOTC.

Lichauco testified in the Senate that our telecoms law and the e-commerce act prohibit government from competing with the private sector in e-commerce infrastructure projects. Furthermore, as observed by the UP School of Economics, the establishment of a national broadband network was by itself not feasible, since government will simply not be in a position to catch up with developments in the IT sector. It even remarked that by the time the network is set-up, the technology availed of would already be obsolete. Hence, while the overprice made the controversy colorful—especially since there were whistleblowers, Jun Lozada and Joey de Venecia, the original objections to the project revolved around its legality and its feasibility. How dare now this Secretary Mario Montejo resurrect a patently illegal project? The bigger question is: How could PNoy have forgotten so soon?

Part of the problem is Mr. Aquino’s reliance on either recycled figures from the Arroyo administration or his appointment of people like Montejo who did not take a stand against evil in the past dispensation. Not having risked life and limbs against an evil regime, it is indeed very easy for the likes of Montejo to literally forget the past.

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I was in the Supreme Court Tuesday for the oral arguments in the case to retrain the reclamation for an expanded jetty port in Caticlan. At the end of the oral arguments, I was conferring with Solicitor -General Jose Anselmo Cadiz when he received a telephone call confirming if the Court had in fact restrained the process of choosing officers-in-charge for the Autonomous Region in Muslim Mindanao. While the SolGen himself had no comment on the now-confirmed temporary restraining order, PNoy’s miscommunication agent said a mouthful (again) against the Court.

While I have been critical of the Arroyo-appointed appointed Corona court, particularly on the issue of the legality of the appointment of Chief Justice Renato Corona, I think the administration cannot blame the composition of the Court for all of its legal setbacks. Even non-lawyers should know that while the Court has not ruled on the legality of the postponement of the ARMM elections, the Executive should at the very least, show courtesy to a co-equal branch and not proceed as if it had already won in the unresolved case. And certainly, proceeding with the process of choosing OIC’s in the ARMM assumes that a decision in Malacañang’s favor is already in the bag.

Apparently, the miscommunication agents in Malacañang and the small-time politico in the Department of the Interior and Local Government have no appreciation that those who took a stand against an Arroyo-dominated Judiciary did so because of the conviction that the Judiciary, as the guardian of the Constitution, should be truly independent and free from partisan politics. But apparently, by conducting themselves in a manner as if they are privy to how the Court will decide in an unresolved case, PNoy’s minions are now proving that they are no different from PGMA’s cronies. This is truly sad.