POSTSCRIPT / April 21, 2002 / Sunday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Jancom deal epitomizes what’s wrong with gov’t

BETRAYAL OF PUBLIC TRUST: Warning — We might spoil your Sunday if you read through this.

We know it’s not always right, but having mellowed through the years, we sometimes tend to be a bit more tolerant when we’re told that businessman So and So is trying to rake in more profits than some of us plain folk think he should. After all, this is free enterprise.

Merchants will always try to make some money here and there and it’s all up to the rest of us to watch out. But when the very officials we’ve elected or appointed to high office betray the public trust and try pulling a fast one on us, that errant behavior we cannot forgive.

It’s much like a tourist-assistance official robbing a foreign visitor, a woman’s lover raping her daughter, a priest seducing a penitent confiding to him at the confessional… Despite our having been exposed to it in large frequent doses, betrayal of the public trust is still shocking.

It calls for swift, even ruthless, retribution.

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INCREDIBLE COURT DECISION: You’d weep reading the voluminous documents gathered by pro-environment groups who have been protesting the attempt to railroad the $350-million incineration agreement between the government and Jancom Environmental Corp. — assuming the documents are authentic and not presented with a malicious intent to mislead.

Our assessment as a hardened newspaperman is that the papers shown us are genuine and the complainants are moved by public interest.

The case is no longer sub judice and is out of the hands of the court after the Supreme Court handed down a decision days ago affirming its Jan. 30 ruling that the contract is valid.

Still, many of us non-lawyers cannot understand how a contract can be valid when, according to the tribunal itself, it still requires the approving signature of President Gloria Macapagal Arroyo to be perfected.

What has suddenly beclouded the supposed brilliance of the justices? A reading of the decision gives us a heavy feeling that the justices went through a difficult process of twisting the law and their conscience. They didn’t have to agonize — just for Jancom.

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AGREEMENT TO BREAK THE LAW?: The court conceded that the Jancom contract had not complied with some requirements of law, but still went on to rule that that defect had been cured by the signing of the contract by the representatives of the parties.

Many of us non-lawyers cannot understand how two parties, assuming they are authorized to sign a document (critics are still questioning their authority to sign), can legally agree to do something in violation of law. As some critics ask in astonishment, “Has the contract now become superior to, or has automatically amended, the laws it has violated?”

Some of the alleged defects cited: The contract violates the Clean Air Act because its process involves the same incineration that the law forbids; Jancom did not pay the required performance bond before it signed the contract; there is a gaping blank in the space reserved for the required signature of the President of the Republic; and the final form of the contract substantially deviated from the original terms of the project without the approval of the ICC-NEDA or the project going through rebidding.

Despite all these violations, the tribunal said the contract was valid because it was signed by the two parties.

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UNSEEN HANDS: Pardon my saying so — my opinion will not matter anyway — but our hunch is that some unseen powerful hands have interfered in the process.

We have to make clear that we’re not referring to Associate Justice Antonio T. Carpio of the court’s third division (that heard the case) as that unseen hand.

But critics of the contract have mentioned him in unflattering light. They said that Carpio had admitted being former counsel of Vivendi/CGEA which is part-owner of Jancom. He reportedly inhibited himself, although it was not clear in what manner he stayed away from the case.

Until he was fired by then President Fidel V. Ramos, Carpio was also Chief Presidential Legal Counsel for the government during the negotiations with Jancom/Vivendi. Later, he was also legal counsel of President Gloria Macapagal Arroyo.

Critics said that as prescribed in Supreme Court Administrative Circular 12-94-A dated Dec. 10, 1996, upon Carpio’s appointment to the third division, the case should have been reassigned to another division.

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READ THE RULE: The rule says — “Whenever a member of a division was a counsel or member of a law firm which was counsel in a case before the Division, or he, his spouse or child is pecuniarily interested in a case before the Division … or to an attorney who is counsel of record in the case or is a partner in the law firm (whether or not named in the firm name) which is counsel of record in the case … or he was an official, or is the spouse of an official or former official of a government agency or private entity which is a party to the case before the Division, said Member shall inhibit himself from the case, and the same shall be raffled among the members of the other two Divisions of the Court.”

But the Jancom case was not re-raffled. Carpio’s third division went ahead and handled the controversial case.

This added footnote may not be relevant to the Jancom case, but for the sake of transparency and to calm the nerves of court-watchers, Mr. Ramos may want to tell the people why he fired Carpio. It may have a bearing on his fitness for the post in the high court. Normally, high officials being eased out of Malacanang are given some sinecure if only as consuelo de bobo, but Mr. Ramos did no such thing for Carpio when he cut him off. Why?

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BIDDING ALLEGEDLY RIGGED: From the very beginning, there were telltale signs that the bidding was being rigged with Jancom being the favored bidder.

In a confidential memorandum to then President Ramos dated July 27, 1995, CORD-NCR chairman Dionisio C. dela Serna explained the game plan: “To fast track the project in view of the scheduled state visit of (FVR) to Australia, we arranged with the prequalified proponents to allow only the Jancom to bid for the San Mateo (Rizal) site, which is the much bigger one of the two sites. The other two prequalified bidders will bid only for the Carmona (Cavite) site, and the Jancom would not bid for this site.”

With the giant cake marked for slicing and distributing to specific bidders, Dela Serna continued in his memo: “The absence of a competing bidder to the Jancom for the San Mateo site allows PBAC (Prequalifications, Bids and Awards Committee) to enter into direct negotiation with the Jancom…”

On Aug. 4, 1995, before completion of the bidding process, Dela Serna signed a memorandum of agreement with Jancom saying that since only Jancom was left bidding for San Mateo, the Executive Committee handling the project would just negotiate with Jancom for the best terms.

Critics said, however, that with a failure of bid having been declared, under the rules there should have been held a new bidding, not a direct negotiation with Jancom while other bidders were conveniently shunted off to the Carmona project.

More documented details coming.

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(First published in the Philippine STAR of April 21, 2002)

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