POSTSCRIPT / April 25, 2002 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Oppositors bare Carpio links to Jancom contract

FINGERPRINTS ON PAPERS?: Since the spokesman of the Supreme Court himself left the door open for discussing Associate Justice Antonio T. Carpio’s handling of the controversial $350-million incineration agreement between the government and Jancom Environmental Corp., we have to share with the public more information on the matter.

Several non-government organizations and pro-environment individuals opposing the deal have said among other things that:

  • Justice Carpio, who is a member of the third division of the high court that heard the Jancom case (he inhibited himself), was the Chief Presidential Legal Counsel when Malacanang was laying the basis for the Jancom contract under the Ramos administration.
  • Justice Carpio was also the former lawyer of Vivendi/CGEA which is part-owner of Jancom.
  • Justice Carpio’s inhibition was not enough under the rules, but that the case should have been reraffled to another division of the high court.

Oppositors have also pointed out that the contract violates the Clean Air Act because it uses incineration that the law forbids; that Jancom did not pay the required performance bond before signing the contract; that the required signature of the President of the Republic is missing from the contract; and that the final contents of the contract substantially deviated from the original terms of the project without the approval of the National Economic and Development Authority or the project going through rebidding.

Despite the objections, the Supreme Court through its third division ruled with finality days ago that the Jancom contract was valid.

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FILLING THE DATE GAP: Assistant Court Administrator Ismael G. Khan Jr., the SC information chief, has confirmed in a letter to the STAR that Justice Carpio was once the lawyer of Vivendi/CGEA, but denied that he was Chief Presidential Legal Counsel for the government when the Jancom deal was still being processed.

Khan said that from the time of the first pre-bid conference on May 2, 1996, to the signing of the waste management contract on Dec. 19, 1997, Justice Carpio was no longer Chief Presidential Legal Counsel. He added that the contract was submitted to the Office of the President on March 5, 1998, more than two years after counsel Carpio resigned from the Ramos Cabinet on Feb. 15, 1996.

Why did Khan start his reckoning only from May 2, 1996? Justice Carpio became Chief Presidential Legal Counsel in June 1992. Since Khan left out his activities before May 1996, the oppositors offered to refresh our memory by reporting what happened in relation to the project in the inner sanctum of Malacanang before that date.

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KHAN’S SANITIZED CALENDAR: This is the oppositors’ summary — not ours — of what transpired in connection with the Jancom deal while Justice Carpio was still Malacanang’s legal chief (but whose details were left out by Khan in his sanitized calendar):

April 20, 1994 — President Fidel V. Ramos issues Memorandum No. 202 prepared by the Office of the Presidential Legal Counsel ordering the creation of the Executive Committee (“Excom”) to oversee and develop the waste disposal sites in San Mateo, Rizal, and Carmona, Cavite, under a Build-Operate-Transfer scheme.

Jan. 25, 1995 — Invitation to bid is published, including the terms of reference of the public bidding specifying incineration as the waste disposal technology.

June 27, 1995 – In the third PBAC (Prequalifications, Bids and Awards Committee) technical working group meeting, HUDCC Secretary General Oscar Hidalgo explains that CORD-NCR chairman Dionisio C. dela Serna wants the project “implemented/awarded by August 1995,” and will ask for the assistance of Presidential Legal Counsel Carpio to find legal ways to fast track the project.

July 25, 1995 — Dela Serna sends a confidential memorandum to President Ramos stating that he had arranged with the prequalified proponents to allow only Jancom to bid for the San Mateo site so the award could be finalized for the President’s coming state visit to Australia the following month. The other bidders had been advised to bid only for the other site in Carmona to leave the San Mateo site to Jancom.

July 27, 1995 — Metro Manila Development Authority forwards pre-feasibility study of the privatization of the sites to the Investments Coordination Committee-NEDA.

Aug. 4, 1995 — Memorandum of Agreement between Jancom International Development Group and the Execom for the BOT implementation of the Waste Disposal Sites in San Mateo and Carmona is signed by Jancom’s Jay Alparslan and Dela Serna.

Aug. 15-18, 1995 — Ramos travels to Australia on a state visit, but the projected announcement of a breakthrough in the project did not materialize.

February 1996 – Chief presidential counsel Carpio is asked to resign from the Ramos Cabinet. He did so on Feb. 15, 1996.

(November 2001 – Counsel Carpio resurfaces at the Supreme Court as newly appointed Associate Justice.)

(Jan. 30, 2002 — Supreme Court promulgates decision upholding the decisions of a Regional Trial Court and the Court of Appeals affirming the validity of the Jancom contract.)

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RESORT TO TECHNICALITIES: But the way Khan told it using his sanitized calendar, Justice Carpio had absolutely nothing to do with the preparation and the laying of the legal basis for the Jancom deal since the Justice was already out of the Palace at the time of the first pre-bid conference on May 2, 1996.

Why did Khan hide Justice Carpio’s involvement prior to that date? Maybe he has a technicality, or a lawyer’s explanation, for it.

Khan also used a technicality to dismiss the relevance of Justice Carpio’s having been counsel of Vivendi/CGEA, which was part-owner of Jancom. His lawyer’s argument was that Vivendi/CGEA is not a party to the Jancom contract.

Of course, Videndi is not — since it has a juridical personality distinct and separate from that of Jancom, and is not a signatory to the contract in question.

But that is not being forthright. That is not being entirely honest. And for Khan, and especially for Justice Carpio who sits in judgment at the Supreme Court, that’s bad.

Worse, the en banc or the entire court used the same argument in accepting that Justice Carpio was, strictly speaking, not the counsel of Jancom (only of Vivendi/CGEA) and so there was no need to reraffle the Jancom case to another division!

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SAVE THE JUDICIARY: We stress that we’re not accusing Justice Carpio of any crime. We’re just relaying to the public the reasons why a broad coalition of groups and individuals is denouncing the Jancom deal. We’re just the bearer of their anguished message.

Without referring to any specific act or any specific person, we note that while a lowly government clerk may be forgiven for lapses, it’s another thing when no less than an Associate Justice of the highest court in the land is being mentioned as possibly having had a hand in laying the basis for a mind-boggling $350-million contract riddled with loopholes and allegedly being forced on us through the court system.

The honorable justices of the Supreme Court know what we mean. Lawyers practicing in Philippine courts also know what we mean, but will not stick their necks out and talk in the open. Victims of lopsided justice also know what we mean, but are helpless and often speechless.

There must be some way of saving the Supreme Court from itself since everybody looks up to it as the court of last resort where, finally, one is supposed to find justice. We are also concerned for the overwhelming majority of judges and justices who have kept the faith under difficult circumstances, who have kept themselves untainted despite the corruption around them.

All of us, including the President who appoints judges and justices, must cooperate and persist in demanding integrity and excellence all around. We must be able to tell moneyed clients — as well as our children — that justice is not for sale in this country.

We repeat: We’re not accusing anybody, Justice Carpio included, of any crime.

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(First published in the Philippine STAR of April 25, 2002)

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