Deterrence

For the second time in a decade, a former Philippine president has been arrested and is being held without bail for crimes committed while in office.

The first one actually insists that he never resigned and therefore, as a sitting president, should not have been prosecuted, but events have overtaken his arguments.

His successor faces charges not only for electoral sabotage but also plunder – the same offense that he was convicted of, and subsequently pardoned.

This says a lot about how our dysfunctional criminal justice system fails to achieve the principal objectives of modern penology: punishment, deterrence, and rehabilitation.

Joseph Estrada was not required to admit guilt or express remorse for his crime in exchange for being spared from spending even a second in a regular prison cell following his conviction. He has maintained his innocence. With his political rights restored by the pardon (if he could vote, he argued, he could be voted upon), he came closest to Noynoy Aquino in winning the presidency last year.

Erap sees the humiliation of his arrest and detention without bail for six years – even if much of it was spent in his own sprawling Tanay resthouse – as punishment enough, and unjust punishment, because it was on top of his ouster through people power.

His showing at the polls last year, plus the fact that none of his relatives has ever lost an electoral bid since his arrest, indicate that enough Filipinos share his views.

Erap is clearly relishing everything that is now happening to his successor, Pampanga Rep. Gloria Macapagal-Arroyo. Last week at the height of the drama over GMA’s hospital transfer, one of the top text jokes was an Erap original: Arroyo didn’t want the police to take her to the Veterans Center in a helicopter because she knew the aircraft was secondhand.

The jokes are entertaining; we Pinoys laugh at everything. The question is whether the similar fates of Erap and GMA are giving the nation an indelible lesson in public accountability.

Did Erap’s ouster, detention for plunder and conviction put the fear of God, or at least the fear of a life term in the national penitentiary, in the hearts of the corrupt?

Did his fall from grace make public servants have second thoughts about demanding grease money and fat commissions or accepting bribes?

If the crimes imputed on the Arroyo administration are any gauge, the answer is no. And one of the reasons could be the perception that no one, especially not the big fish, gets punished in this country for large-scale corruption.

The nation’s failure to put any of the Marcoses or their cronies behind bars for corruption and human rights abuses guaranteed the continuation of such crimes. Similarly, there were few lessons learned from the prosecution of Joseph Estrada.

Possibly the only significant lesson from Erap’s case is that you should never sign incriminating documents, especially in front of a potential witness. Ferdinand Marcos, brilliant lawyer that he was, knew that one well.

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Will the latest effort, this time by a new administration, to hold public officials accountable have a deterrent effect? We won’t know until there is another transfer of power, and the next president makes P-Noy’s administration account for its acts.

Much will depend on what happens to GMA and those who face formal charges along with her for plunder and electoral sabotage.

If a big fish finally goes to prison for rigging the 2007 elections, it would be a giant leap in the struggle to clean up the Philippine voting system.

The crime of electoral sabotage, which carries a life term and for which GMA was arrested and held without bail, was approved as part of amendments in the poll modernization law for 2007. It cannot be applied retroactively to anyone accused of rigging the vote in 2004, when the crime, introduced by Sen. Panfilo Lacson, was not yet in the statute books. But those implicated in fraud in the 2004 polls, particularly those in the “Hello, Garci” scandal, can be charged with regular electoral offenses.

The outcome of the criminal and administrative charges filed, and still being filed, against officials and personalities influential during the Arroyo administration will spell the difference between deterrence or continuing impunity in the commission of such crimes.

Other countries have dealt decisively with their fallen leaders, prosecuting, convicting, and actually sending them to prison.

In the latest example, former Panama strongman Manuel Antonio Noriega is going straight to prison in his homeland after being extradited by France over the weekend.

Noriega has spent over two decades in French and US prisons for drug trafficking and money laundering. This time, he will be serving time in his own country for the killings of two of his political enemies in the 1980s. Each offense carries a prison term of 20 years.

Recently, Manila hosted the state visit of the president of South Korea. In 1996, South Korea sent two of its former presidents in prison for treason, mutiny and corruption committed during their incumbency. Roh Tae-woo and Chun Doo-hwan were arrested, photographed in orange prison garb, and incarcerated in regular cells. The two were pardoned after a few years in prison.

I’ve been told that no one gets VIP treatment in Korean prison cells, each one tiny and designed only for one detainee.

The prospect of spending several years for corruption in that environment probably drove another former Korean president, Roh Moo-hyun, to jump off a cliff to his death in May 2009.

In our case, Marcos was sent into exile and never tried for the crimes of the dictatorship. Erap was famously pardoned by GMA, who is now getting a first-hand taste of what he experienced.

The Philippines has progressively slid further behind its neighbors in human development indicators over the past five decades. One of the reasons has to be crooked leadership, with presidents leading the example in using public office for personal enrichment rather than service for the greater good.

In the latest effort to prosecute those accused of using public office for personal gain, authorities must make sure lessons in public accountability are learned well.