'Independent' votes in Supreme Court

“Justice Carpio-Morales would not have the required independence and impartiality in resolving cases involving me and my immediate family,” Arroyo wrote. The retiring magistrate had dissented when the Supreme Court struck down President Noynoy Aquino’s planned truth commission. She opposed Chief Justice Renato Corona’s appointment during the election ban. And she voted to let Congress decide whether to impeach Arroyo’s appointed Ombudsman Merceditas Gutierrez. All this, Arroyo said, proves that Carpio-Morales “consistently voted” against her interest.

Arroyo’s justice secretary echoed her definition. “In her career in the High Court,” Raul Gonzalez told the JBC, “(Carpio-Morales’s) probity and independence is suspect, as she almost always voted in tandem with Justice Antonio Carpio in all cases of the Arroyo administration.” He recalled two high-profile Arroyo cases that Carpio-Morales voted against: the grant of territory to Moro separatists, and of executive privilege to Sec. Romulo Neri to keep secret Arroyo’s instructions about the $329-million NBN-ZTE scam. “Carpio-Morales does not possess the said qualifications based on the numerous decisions and pronouncements she handed down,” Gonzalez said.

Justices are expected to decide strictly on case merits, with no regard for their appointer. In case of conflict of interest, they must inhibit from ruling. To recount, Arroyo had appointed all three mentioned justices early in her term: Carpio in October 2001, Corona in April 2002, and Carpio-Morales in September 2002. Newsbreak surveyed in 2008 the voting pattern of SC justices (http://www.newsbreak.ph/2008/10/23/voting-pattern-of-supreme-court-justices). In 21 major Arroyo cases, Carpio had voted nine times for and 12 times against, with one abstention. Corona’s record was 15-3-1; Carpio-Morales’s, 10-11-0. Among the issues were: Arroyo’s prohibition of her subordinates’ attendance in congressional investigations without her consent, Charter revisions by people’s initiative, and violent dispersals of protest demonstrations. In the Neri ruling, a justice reported to be his golf buddy voted for his executive privilege, instead of inhibiting.

The eight-member JBC will rule on Carpio-Morales’s nomination by month’s end. Keenly awaited in legal circles is how Corona, as JBC chairman, will vote.

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Leonora Fernandez, DBP corporate affairs VP, sent a long rejoinder in behalf of senior management. The salient points, minus the repetitive use of “vilified,” “lies”, “malicious”:

“On alleged misuse of DBP funds by the past board of directors and COA disallowances of extra pay and perks of top execs ... there is no probe by three agencies or fund misuse for behest loans and pay increases. The BSP, COA and internal checks govern DBP operations.

“1. There is no hush-hush private bank account for DBP directors and officers. We had a payroll servicing agreement with the bank since 1989. In the first quarter of 2010 under president Reynaldo David a unified payroll was implemented for all officers and employees. So the DBP terminated the payroll servicing effective May 2011. (Two memos state that the account was closed only in November 2010, under a new board. -JB)

“2. Some of the ‘27 extra pay and perks’ are standard compensation for all employees, others position-specific. Car loans and housing assistance are deductions, not perks. (Terms are concessional. -JB) The DBP has followed COA procedures and disallowances. (There was) reference to a retroactive approval by President Arroyo of ‘extra pay and perks.’ She simply confirmed the authority of the DBP board to adopt a compensation plan (What for?-JB).

“3. In the 2008-2009 financial statements the qualified opinion of the COA auditor referred to treatment of foreign exchange risk cover. There was no creative accounting to justify fat bonuses. The DBP compensation structure has been implemented since 1999 under its revised charter and exemption from the salary standardization law.

“4. There is no behest loan. The ‘P500-million to an unknown entity to trade mining shares in late 2009’ was evaluated under stringent credit processes. The approval considered the nature of transaction, timing and market opportunities, and security - within the board’s authority. The loan was fully paid before maturity.

“5. The MRT bonds bought by DBP (and Land Bank) cost less than $700 million, a discount of more than 60 percent from the face value of $1.7 billion. DBP earned 11.8-percent vis-à-vis ROP bonds of 8-9 percent at the time. The purchase gave the government control of the MRTC board, and the arbitration in Washington was dropped. The COA audited the transaction, with no adverse findings.

“6. DBP met its official development assistance disbursement commitments. We are currently negotiating for new ODAs. The decline in ODA utilization was mainly driven by low interest rates.

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The P500-million loan mentioned above was to Delta Venture Resources Inc., led by ex-trade minister Roberto Ongpin. In a rejoinder to the ABS-CBN special report that I cited, Ongpin admitted that DBP ex-president David is a long-time acquaintance, but added that he did not rely on DBP alone to acquire Philex Mining stocks. Backed by other banks, he accumulated chunks since 2007 from Banco de Oro, the Gokongwei Group, and the Zamora Group. He denies any sweetheart deal in the DBP loan to purchase its Philex shares.

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A reader asked if excessive pay and perks given to themselves by state firm directors and officers can be recovered. Sen. Franklin Drilon says yes, under his new law on government-owned and -controlled corporations. Even self-awarded golden parachutes can be withheld.

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