Hearsay?

With 60 witnesses interviewed and hundreds of documents gathered to back it up, the WB Department of Institutional Integrity (INT) report on “an institutionalized cartel replete with collusive tendering, bid rigging, price fixing and the routine payment of bribes and kickbacks” regarding the bank funded National Road Improvement and Management Project-1(NRIMP-1) can not just be ignored and set aside until forgotten.

Bare denials of culpability and angry denunciations that the report is mere “hearsay”, “absurd” and “ridiculous”, by persons implicated therein will not conclusively end the case. As the INT itself said, it had “direct evidence of fraudulent or corrupt practices such as the submission of fraudulent documents or the payment of bribes derived from admission of participants or the direct testimony of witnesses” and or “circumstantial proof of collusion detected through an analysis of the fraudulent bids submitted by the cartel.”

Indeed “hearsay” seems to be the most abused and misused word nowadays as the series of corruption and fraudulent practices are coming out one by one. Both the Congressional investigators and those being investigated indiscriminately use the term without fully realizing its real meaning. Even such reputed high caliber lawyers in the Senate like Miriam Defensor-Santiago and Juan Ponce Enrile have been erroneously using the term just to protect their patron in the Palace.

Literally “hearsay” is what the witness says he heard another person say. Hearsay is a statement made by a person not called as a witness, received in evidence on trial. (People vs. Kraft, 36 N.Y.S 1034). Evidence, oral or written, is hearsay when its probative force depends in whole or in part on the competency and credibility of a person other than the witness (State vs. Klutz 206 N.C. 726). Hearsay is that evidence which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons.

Another aspect of the hearsay rule, which is not strictly speaking hearsay, is the rule requiring first hand knowledge. Black’s Law dictionary defines it as the repetition at second hand of what would be original evidence if given by the person who originally made the statement (Stockton vs. Williams, 1 Doug, Mich. 546). It is second hand evidence as distinguished from original evidence. It is “evidence not proceeding from the personal knowledge of a witness but from the mere repetition of what he had heard others say”.

The distinction is on the form of the testimony, whether the witness purports to give the facts directly upon his own credit or whether he purports to give an account of what another has told him and this is offered to evidence the truth of the other’s account. However, when it appears, either from the phrasing of his testimony or from other sources, that the witness is testifying on the basis of reports from others, though he does not in terms testify to their statements, the distinction loses much of its significance, and the courts may simply apply the label “hearsay” (2 Wigmore on Evidence Section 6570).

In the WB report on the bid rigging, price fixing, and payment of bribes and kickbacks involving public road projects, the evidence is not the WB Report itself but the overwhelming number of witnesses and piles of documents cited in the report. In the “record of interviews” it is quite clear that most of the witnesses’ testimonies are not hearsay although there are also portions which are hearsay.

Examples are the testimonies of two ex-government officials with personal knowledge of the DPWH bid process who requested that their identity remain confidential and thus have been simply named as CW 1 and CW 2. CW 1 stated that the primary arrangers or facilitators of the collusion included a contractor Eduardo de Luna (who)…was masterminding bids, is close to Mike Arroyo (husband of President GMA) and is a go-between for Mr. Arroyo on foreign assisted projects”. Obviously this is not hearsay. CW 2 on the other hand stated “contractors have told him that politicians, district engineers, BAC members, losing bidders and media are paid under the SOP”. Clearly this is hearsay. Another witness interviewed, who identified himself as Mr. Shingo Nakamura, Vice President of Yoshida Construction Co. stated that “E.C. de Luna was Mike Arroyo’s man. He traveled with Mr. Arroyo, the President and Tito Miranda to Japan. E.C. de Luna organized a syndicate to control the awards of contracts. Miranda is involved as intermediary of Senator Barbers. He even specified the percentage of payments made to the different officials. This is plainly not hearsay.

Apparently as defined, the application of the hearsay rule and jurisprudence on these evidences is done only by the courts. Neither of the parties involved, nor Malacanang lackeys in the Senate can determine whether they are hearsay or not. These witnesses interviewed by the INT should be placed on the witness stand and placed under oath to affirm what they have stated before the WB interviewers. Only the court has the authority and jurisdiction to rule on the probative values of their testimonies and the documents submitted.

These cases however can reach the courts only through the action of the Ombudsman. With such number of witnesses and documents, the Ombudsman definitely has enough reasonable grounds to believe that crimes have been committed and that those involved should be held for trial. To be sure those witnesses identified or unidentified, may even opt to voluntarily come out or be forced to come out only if cases are already in court where they can back up their claims with less fear. Even the First Gentleman has repeatedly hurled the challenge to prove those charges in court. But will the Ombudsman act accordingly? The answer still lies beneath the murky waters of our dirty politics.

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