COMMENT: Help not welcomed. By Patricio P. Diaz

                                                          WB Report

As gleaned from the PDI report, after more than two years of extensive investigation, the WB furnished in November 2007 the Department of Finance with a 9-page Referral Report, the executive summary of its findings. The DOF, in turn, submitted a copy of the Referral to the Office of the Ombudsman for “appropriate action”.

The WB issued two more documents: (1) the Notice of Sanction Proceedings in May 2008; (2) the Decision of Sanctions Board on January 12, 2009. There is a third document, the Redacted Report which has not yet been posted in the WB website. The blacklisted contractors have been given copies of the NSP and the DSB.

The bidding collusion scandal broke into the media after the WB had issued its sanctions on the blacklisted contractors last January.  The reports were believed to have been based on the excerpts of the over-1,000-page Notice of Sanction Proceedings.

The Referral Report was marked “Confidential”. The PDI report of February 13 supposed the three other documents as confidential, too. The Ombudsman received from WB last February 10 – also covered by confidentiality – documentary evidence of more than 3,000 pages.

WB Statement

In a statement issued on February 12, the WB revealed its “good reason” for sharing the Referral Report “on strictly confidential basis”. It said:

“The Referral Report contained sensitive information which may be relevant to investigations in the Philippines, and made no judgment as to whether the laws of the Philippines had been violated.  This was the reason it was shared on a strictly confidential basis – to allow the investigative authorities of the Philippines to undertake their own investigation and reach their own conclusions.”

The statement should be appreciated for its three key points: (1) its sensitive information which may be relevant to investigations in the Philippines; (2) its making no judicial judgment as to whether the laws of the Philippines had been violated; and, (3) its being confidential that would allow the investigative authorities of the Philippines to undertake independent investigation and reach their own conclusions.

What does the WB mean? While it has found that “certain parties had violated its rules in the implementation of projects”, it would not accuse the violators of having violated Philippine laws – sanctioning them only according to WB rules.  It is providing the Philippine authorities a lead and it is up to them to investigate according to their own laws.

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nbsp;                                             Not That Way

But Santiago and some other senators did not see it that way. They wanted to confront the implicated persons with the WB findings and require the WB to support these findings with evidence admissible according to the Rules of Court as in an accuser-accused scenario.

They did not appreciate the WB’s non-interference in the Philippine legal system. While Santiago criticized the WB for not making “judicial judgment” in its report, she did not credit the WB for admitting its incompetence to interpret Philippine laws.  Had the WB rendered judicial judgment, could it not have been accused of interfering in the internal affairs of the country?

In cloaking its reports with confidentiality, the WB was really telling the Arroyo government this: We have discovered frauds in the biddings of our funded projects. We sanctioned the contractors according to our rules. We do not tolerate frauds. We believe you do the same. We are providing you our report not as a complaint but as your lead in your own efforts to stamp out corruption.  

                                                        No Longer News

Except for its having worsened, the syndicated corruption involving DPWH projects contained in the WB report is no longer news.  Santiago and the senators know this – they have said so.  The government – Arroyo’s, others in the past and in the future – is solely responsible in dismantling it. The WB is doing the government a very big favor.

In effect, the WB report is rubbing truth over callousness to make the government see how it has been tolerating, if not promoting corruption.  By the WB findings, how can it be denied that corruption in the DPWH – as well as in other departments – has grown in the last 50 years from a molehill into a mountain?

Until the 1970s, the amount called SOP (Standard Operating Procedure) shared by contractors with some DPWH officials was only 10 percent. Now the SOP is 20 percent and the sharing involves members of Congress.  In the late 1980s and the 1990s, some congressmen were known to be on the take in the implementation of projects funded by their pork barrel. The WB findings only confirmed this.

Hands Tied

The Ombudsman complained about the difficulty of investigating the frauds ”uncovered” by the WB.  “Our hands are tied by the confidentiality of the reports,” said Ombudsman Mercedita Gutierrez.

Obviously, Senator Santiago did not like to proceed with the Senate investigation based just on copies of the report from the Ombudsman and the Finance Department or from the implicated contractors.  She was demanding original copies from the WB.  For refusing her demands, she accused the WB of obstructing the hearing.

How can confidentiality of the WB report tie the hands of the government investigators? How can it impede the Senate committee hearing? The frauds are detailed; the sources are named, except a coded few, and so are the violators.

In filing criminal cases against erring contractors and conniving government officials and private persons, the Ombudsman is not going to use the WB reports but its own original finding and evidence.  By sharing its report in confidence, the WB is lending lights that the Ombudsman does not have to start in the dark.

The Senate hearing is fact-finding in aid of legislation – in the particular case at hand, to improve relevant laws and bidding rules in keeping with government declared efforts to stamp out corruption.  The WB is encouraging the Philippine authorities to follow up its report. When the Senate does so according to its rules, will that violate confidentiality?

Attitude Problem

Santiago accused the WB of dictating on (us) to respect “this confidentiality” and of making “a judgment on the opinion” of a “sovereign” Senate.  Then she accused the United States that controls the WB of having an “attitude problem”.

Is the attitude problem not with Santiago, some senators and officials of government entities concerned?  Are they really concerned about the frauds that the WB has hoped they would address decisively?

In the February 12 hearing, the Santiago committee was more concerned about the evidence against First Gentleman Miguel Arroyo than the collusion in the biddings.  After the three-hour hearing, the verdict was: There is no evidence of FG’s involvement, the many attributions to him in the WB report notwithstanding.

In using the Rules of Court to evaluate the admissibility of facts, documents, etc. as evidence, Santiago assured the exoneration of FG Arroyo and the others implicated. In reality, confidentiality was made to work in favor of the implicated contractors and other personalities.  In the eyes of the Santiago committee, the WB report could not stand in court –so the lack of evidence against FG as well as the contractors.

The Ombudsman has not seriously considered the Referral Report since it received a copy in 2007.  The DPWH has taken lightly the WB report as well as its sanction of the erring contractors.  Obviously, the attitude is: the DPWH has rules different from those of the WB.

The three Filipino contractors – including that permanently banned – were suspended by the DPWH only for 15 days and were allowed to continue participating in projects solely funded by the government.  Is the DPWH bothered by the WB report?

Not Welcomed

What has obviously become clear? Funds from the WB – including those for fighting corruption – are most welcomed.  But the WB rules in the implementation of its funded projects are a nuisance and are irrelevant to the implementation of solely government-funded projects.

The WB can investigate.  It can sanction contractors violating its rules.  But it should not expect the government to prosecute those contractors unless it is willing to and can present evidence in Philippine courts.

UP Professor Solita Collas-Monsod, in her column “Get Real” (PDI. February 7), concluded that the WB report attested to the existence of syndicated corruption in the DPWH (and the same may be said of other government agencies).  “It is that syndicate that must be dismantled once and for all,” she said.

In sharing its report to the concerned offices of the government, the WB wants to help do that.  But this is not welcomed.

("Comment" is Mr. Patricio P. Diaz' column for MindaViews, the opinion section of MindaNews. Mr. Diaz is the recipient of a "Lifetime Achievement Award" from the Titus Brandsma for his "commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate." You may e-mail your comments to patpdiaz@mindanews.com).