Leila de Lima: A season for everything

There is a season for everything, even for a woman I had described earlier as a woman for all seasons. Just a year ago, Leila de Lima was heroine to many, the face of Daang Matuwid in its war against corruption. Today, she is beleaguered, with the awesome powers of the presidency thrown at her relentlessly, mercilessly.

It is not the first time this has happened; we saw this in the case of the hapless Renato Corona, the impeached and convicted chief justice who died last May. We also witnessed this in what was done to former president Gloria Macapagal Arroyo, who at least survived to see her acquittal by the Supreme Court in the Philippine Charity Sweepstakes Office case and the Sandiganbayan in the ZTE case.

Die-hard supporters of the previous administration have argued that De Lima’s case is different because Corona and Arroyo were guilty. That is not my point (and Corona and Arroyo defenders would certainly contest the claim of guilt for both). It’s the misuse of the powers of the president in all these cases that makes them similar. Injustice is injustice whoever does it and for whatever justification it is invoked.

And so now, it is Senator De Lima’s turn. It’s not just what happened in the Senate and the House of Representatives in the last week. It’s what will happen in the next days when she could be charged with non-bailable crimes, a scenario that could lead to her detention in the next few years.

All I can say to Senator De Lima is the truth: seasons always pass, there is a season for everything. This is a difficult season for you but time will see you vindicated.

Let me also say to this brave senator: how you respond to what could be a long winter will have serious consequences not only on yourself, but also on our democracy and justice system.

Farce in the House

Many have forgotten the December 15, 2014 raid of the New Bilibid Prison (NBP), where it all started. The same drug lords, the so-called Bilibid 19, whom De Lima stripped of power when she brought them to the NBI detention facility, and later to a separate building inside the NBP, are the same witnesses whom Secretary Aguirre has produced to testify against her before the House hearing.

This includes the bank-robber and mass murderer Herbert Colanggo who prided himself in recording his own album in his own music studio inside the Bilibid, until De Lima swooped in with the NBI and the Special Action Forces to dismantle his whole music production set-up.

This is the kind of character and motivation of the witnesses Aguirre has lined up against De Lima, witnesses whom the House allowed to be directly examined by Aguirre himself, instead of the usual and standard practice of letting the congressmen ask the questions without the aid of any lawyer, whether coming from the government or as the witness’ own private counsel.

The first sign that the House hearing was for the most part going to be a show-and-parade affair was when Aguirre was allowed to conduct the direct examination of the witnesses and help them in their testimonies by leading them to his desired answers.

Of course, in a court setting, the direct examination of a witness is indeed conducted by the counsel of the party presenting the witness. But here, the Rules on Criminal Procedure and Evidence apply. Counsels presenting the witness are not allowed to ask leading questions, or help the witness in any manner. Any leading question or one that is not based on a fact previously stated by the witness, or whose predicate has not been laid, can be objected to by opposing counsel.

At the same time, witnesses are allowed to answer only the specific question asked, and be responsive to the same without being given the opportunity to narrate in a free-willing manner. Finally, the competence of the witness to testify on his own personal opinions of the facts at issue is not allowed, as they are not expert witnesses, unless the very fact at issue essentially involves the personal opinion of the witness himself on the matter. They are only allowed to testify on facts based on their own personal knowledge.

However, having pointed this out, it does not mean that because these rules in direct examination were not followed, this already constitutes an anomaly in the House proceedings. Not at all. House inquiries are not court proceedings bound by the technical rules of procedure. Witnesses and resource persons are expected to be asked leading questions, grilled, and subjected to rigorous fact-checking of their accounts and tested on their recollection of events.

The only assurance that the witness or resource person will be telling the truth is that he is subjected to an impartial questioning by the congressmen themselves, and not by any official from the Executive whose sole purpose is to affirm the testimonies of the witnesses in the hearing, and who is, by no means, an impartial and disinterested party in the proceedings.

Being a body that dispenses of the rules in the direct examination of witnesses, the House’s only assurance that it will eventually ferret out the truth in an inquiry is the active participation of its members in the critical deconstruction of the witnesses’ testimonies. What we saw in the House proceedings is far from this critical deconstruction. What we saw is a rehearsed proceeding led by the justice secretary, with House members’ participation limited to intervening, as if on cue, to heighten the drama of the narrative of the witness.

Absent any application of the Rules of Evidence on direct examination, the House allowing Aguirre to conduct the witnesses’ examination is the real tragedy of the House inquiry. Needless to say, this tragedy, when repeated several times – like history – becomes a farce.   

We saw the most glaring example of this farcical nature of the House proceedings when Congresswoman Gwen Garcia rose up on cue to confirm that the telephone number witness Colanggo mentioned was, in fact, De Lima’s number as it appeared on her own phone’s contact list, without bothering with the simple fact that anybody could have given the Senator’s cellular phone number to Colanggo previously, and that of course it would match the number of De Lima on Garcia’s contact list.

As a result of the rehearsed drama, De Lima got 2,000 texts that day which she characterized as vicious. That whole portion of the House drama was designed to expose the Senator to harassment by the mob of her haters on social media, by giving them direct access to her private number.   

Drama in the Senate

The House’s examination of the drug lords and the Senate questioning of alleged Davao Death Squad member Edgar Matobato is therefore a study in contrast. In the House hearing, Aguirre was given all the leeway to assist the witnesses in weaving their narratives on how they all pooled millions of pesos for De Lima.

This was supposedly in exchange for allowing them to continue with their trade and luxurious practices inside the Bilibid, without, however, explaining why – after mulcting so much from them – De Lima would suddenly decide to swoop down on their kubols. This would precisely cut them off from the drug trade inside the Bilibid that, in the first place, supposedly delivered to her so much cash. It simply does not make sense.

What triggered the raid and the sudden change in status from favored to – as the Bilibid 19 claimed – persecuted inmates? Did they stop delivering money to De Lima? If not, why would De Lima suddenly, and for no apparent reason, shut the faucet that was supposedly gushing out millions of pesos a month into her bank account and future campaign funds?

Why kill the goose that was laying the golden egg? These simple questions could have been asked by any of the congressmen who had the experience of at least appearing in court under the law student practice provision of the Rules of Court. Instead, they feasted on the significance of a witness knowing De Lima’s cellular phone number, the uncomplicated circumstance of said number being previously handed to the witness by Aguirre being conveniently lost upon them.

In contrast, Matobato faced the extensive cross-examination of Senator Alan Peter Cayetano not once, but twice. The first was during De Lima’s chairmanship of the Senate committee on justice and human rights, and the second during Senator Richard Gordon’s first appearance as the new chairman.

The drama here was not the senators taking their cue on the rostrum to match Matobato’s identification of the Davao policemen who are allegedly DDS members with the list of Davao policemen now on President Duterte’s personal PSG detail, but the grueling cross-examination that senators are bound to subject a witness to – even to the point of misleading the witness to facts he has not testified to, or confusing him with contexts and circumstances that the senator merely presumed from the facts testified to.

Their presumption, of course, is that Matobato’s testimony is too incredible to be believed, implicating as it does the highest official of the land as the mastermind in serial mass murders that occurred in Davao City in the past 28 years.

By itself, like the convicts’ testimony in the House, Matobato’s testimony is not credible. After all, he is a confessed killer. But what makes his testimony more credible is that it has already been corroborated on several points with information available outside the Senate hearing, but which are, admittedly, still extraneous evidence insofar as the Senate proceedings are concerned. 

First, there indeed exists a Ma-a Quarry in Davao City owned by retired SPO4 Bienvenido Laud, and which was testified to by another witness, a certain Ernesto Avasola, as the dumping ground of victims of summary execution. Avasola testified during an application for search warrant proceedings before a Manila RTC that he personally participated in the killing and burying of 6 victims in Laud’s property. This account is now part of the records of the Supreme Court in the case of SPO4 Bienvenido Laud v People of the Philippines (GR No. 199032; November 19, 2014), where now Justice Secretary Aguirre served as counsel for Bienvenido Laud.

Second, is the “Sali Makdum” story, which was already corroborated via investigative journalism reports by CNN Philippines and other networks which traced the family of Mirasol Marquez, the common-law wife of Makdum and first cousin of Matobato’s former common-law wife. Marquez or her family confirmed Matobato’s testimony that she filed a case of kidnapping against Matobato for the abduction of Makhdum, and that the case did not prosper. The accounts of Matobato, Marquez, and their respective families only vary as to the motivation for the kidnapping, which is terrorism according to Matobato, or plain robbery disguised as a land transaction according to the families.

However, the substantial facts are the same on both accounts. Makdum was arrested in a carinderia uphill of the Penaplata Market in Samal Island while having breakfast with Matobato, and then was never heard from again, while Matobato showed up eventually. This jibes with Matobato’s account that the DDS/police who abducted Makdum made the show of also arresting and putting handcuffs on him, to make it appear that he was being arrested with Makdum. This, despite his never being charged for anything, and his simply reappearing in Samal, to the anger and suspicion of Marquez whose own husband was never heard from again. Matobato’s narrative provides the logical explanation for these circumstances. He was eventually freed because the abductors were his accomplices, while Makdum was the only real victim in the incident.

These are just some of the independently corroborated points in Matobato’s testimony. It is certain that more will be corroborated through simple fact-checking, or research of available public documents, like the NBI records or police reports on the killing of the NBI agent Jamisola – the now famous gunslinger who single-handedly outfought 30 DDS men and who supposedly refused to die, only to be allegedly finished off by Mayor Duterte – and the police reports and records on the 4 supposed Nograles supporters abducted and killed in Samal Island. The latter was investigated with Matobato as prime suspect when two of the bodies floated and were discovered by fishermen, and due to rumors of strange things happening at IGACOS Mayor Roger Antalan’s resort. Matobato was the Mayor’s caretaker at the resort and, according to residents, also served as the Mayor’s bodyguard.

What is of course exciting to watch is the eventual confrontation between Matobato and the 19 DCPO police officers he identified to be the core group of the DDS. It will also be interesting to know where these police officers are assigned now. Will he, in a modified police line-up, be able to identify each and every police officer by name? Will he be able to recite the personal details and circumstances of each and every police officer, or their character and reputation within the DDS? Will he be able to present proof of his past relationship with these men, like photos of family gatherings or birthday parties that he attended with them?

For all we know, and it is better to presume – in accordance with trial techniques – that whoever is handling Matobato’s testimony is reserving evidence for confrontation, after the police officers have already denied on live TV any relationship or personal knowledge of Matobato. That was the risk PNP chief Ronald dela Rosa took, when he readily denied personally knowing Matobato, despite him immediately and directly addressing Matobato by his first name during the hearing, in all familiarity, as if he was just talking to him in the Davao-PAOCTF office.  (To be concluded) – Rappler.com

The author is former dean of the Ateneo School of Government.