Asia Times: HEY, JOE Estrada makes a bold move


	March 12, 2002	atimes.com

Southeast Asia

HEY, JOE
Estrada makes a bold move
By Ted Lerner

MANILA - Call it a glaring case of the chickens coming home to roost.

In a country where drama is as common as the rising and falling tide, deposed Philippine President Joseph Estrada has dropped the proverbial bombshell on the nation, setting off a firestorm of controversy that has suddenly lurched the country into a full-blown political crisis.

Under detention in a small suite at a Manila hospital and currently on trial for the crime of economic plunder, a charge which carries the penalty of either death or life imprisonment, the former president did the unthinkable: he announced to the world that he would no longer participate in his trial and subsequently dismissed his entire team of lawyers.

The reasons he claimed, were that his trial was a farce, that he was not getting a fair trial, and that the court - a specially-created panel appointed solely to hear the former president's cases - only existed in order to convict him, so as to legitimize the government of President Gloria Macapagal-Arroyo, which rose to power in January of 2001 through what any legal analyst would surely call a military-backed coup. And so, Estrada said, he didn't want to be a part of the farce. "Do what you want with me," he said. "Find me guilty, jail me, strap me to the gurney and inject me with the lethal poison. I'm ready for the gallows."

It was a move which succeeded in immediately wiping the controversial war-games exercises with the Americans out of the headlines. The former president, elected with the largest tally of votes in Philippine electoral history, still enjoys 38 percent support among the voting populace and his every move seems to send the current government scurrying around looking for ghosts.

The government and anti-Estrada groups immediately went on the attack, claiming Estrada's move was pure and simple drama. Just prior to dismissing his lawyers, Estrada, in a nationally televised interview, admitted for the first time that he had indeed signed bank documents under the fictitious name "Jose Velarde". Critics claimed the admission proved his guilt in the plunder charge. They said Estrada knew he was losing his case, knew he was guilty, and so had no other choice but to throw a tantrum and move his high-profile case out of the courts and into the court of public opinion.

A spokesman for Arroyo held forth and said Estrada's actions were consistent with his days as a famous actor, his moves all part of an orchestrated script to win sympathy from the public so he can skip justice and be allowed to go into exile abroad. They even came up with a story that Estrada was about to go on a hunger strike - an idea Estrada denied ever concocting.

But since dismissing his lawyers at the end of February, Estrada has become even more defiant. He rejected the idea of exile and said he only wanted a fair trial. The Sandiganbayan, the anti-graft court where he is being tried, tried to appoint several public attorneys to defend the ex-president, but Estrada rejected their services. Several days ago, Estrada released a scathing letter to the anti-graft court lambasting the three justices for pre-judging his case and only going through the motions of a simulated trial.

"I do not wish to dignify any act which is only intended to create a semblance of legality of the farcical proceedings in your court," Estrada wrote. "For this reason, I am categorically rejecting any and all court-appointed lawyers to put up defense for me." Estrada labeled the Supreme Court a "rubber stamp" of the administration for legitimizing the government of Arroyo last year.

"You say that you are treating me fairly," he wrote. "I say you have done nothing but persecute me. One of you [a justice] who has an eye in the Supreme Court wants to place me in the Quezon City jail, forgetting that I am legally the president of the Republic of the Philippines who deserves dignity and respect.

"Your actions betray your true intentions to convict me at all costs. So please jail me, allow my enemies to besmirch my reputation and make a circus out of the proceedings, then deny me my rights and the same privilege by gagging me. As I have stated before, I am leaving my fate to the Filipino people who have elected me as their duly constituted president."

Estrada's actions have produced a stalemate, but one which seems like it can only get worse. The Arroyo administration is now pushing for live television and radio coverage of Estrada's trial, a move they say will prove that the former president is, indeed, being treated fairly. But the spectacle of a duly elected leader, who still commands massive support from his followers, on trial with no defense does not bode well for the stability of the Philippines.

In an exclusive interview with Asia Times Online, Estrada's now former lawyer and current spokesman, Raymond Fortun, reveals in detail the reasons why his high-profile client has abandoned all hope of getting a fair trial. His comments indicate that the Philippines has reached a perilous crossroads. Indeed, Arroyo has insisted that the trial will proceed, and that Estrada should face the music and follow the constitution and the rule of law. But Estrada's daring gambit appears to have turned the tables on his accusers. For when one takes a critical look at the events starting with Estrada's ouster in January of last year and up until this day, a rather ironic twist becomes quite evident; that Joseph Estrada has been the one who has consistently adhered to the constitution while it was Gloria Macapagal-Arroyo and her supporters who cut corners and who did not follow the rule of law in their desire to gain and legitimize their hold on power.

AT: The critics have said that Estrada made a gaffe when he admitted that he signed "Jose Velarde" on bank documents and that dismissing his lawyers is the last-ditch effort of a defeated man because he knows he can't win, and the noose is tightening around his neck and so he wants to take the issue out of the courts and into the streets and the court of public opinion.

RF: In the first place the "gaffe" was not a gaffe. President Estrada did not admit he was Jose Velarde. He categorically said he is not Jose Velarde and the bank records will in fact later on prove that. He did not open the account, he did not service the account and he did not close the account. The records will speak for themselves. If he did say he signed as Jose Velarde, he said he signed as a guarantor. There can be legal questions as to why would somebody sign a signature that wasn't his own. You have to understand that was one and only one transaction and it involved a sitting president supposedly acting as a guarantor in a private transaction.

Definitely there would be some questions of propriety involved. You have to understand Erap (the former president's nickname) Estrada the man, not necessarily Erap Estrada the president. He's somebody who has been very, very loyal to his friends. Even to the point that in a situation like this risking his own neck. Probably risking his own integrity. But that's the way it is. Rightly or wrongly, that's Erap Estrada. He's somebody who will stand by his friends through thick and thin.

In this particular transaction, William Gatchalian, a known friend of Erap, was looking for relief from his debts. He wanted immediate credit. The banks refused to give him that. Gatchalian is somebody who is known to have financial difficulties. He is somebody who used to own Air Philippines and because of inability to pay the loan was forced to give an assignment to Lucio Tan who now owns the airline.

Gatchalian needed money and he approached a group of investors headed by Jaime Dichaves, the true Jose Velarde. Jaime Dichaves and his group refused to grant the loan unless Erap Estrada would guarantee the same. But there was in fact the propriety of a president guaranteeing the loan in a private transaction. So there was an internal arrangement between Jaime Dichaves and the bank president, George Go, and Erap Estrada, that instead of signing as President Estrada and as proof that he was willing to guarantee that particular transaction, he signed as Jose Velarde. It's as simple as that.

Would it be an admission which would be dangerous or which would be catastrophic to the defense? No. Because the charge against Erap Estrada is plunder, meaning he acquired, amassed or accumulated ill-gotten wealth. Therefore, the evidence that the prosecution must present must be evidence that he stole money, that he obtained money through illegal sources. Meaning, what is material in the case is actually that he owns the money. Not whether he signed one way or another. They have to prove that he owns the money and, number two, they have to prove that he acquired it through ill-gotten means. That "admission" is not at all catastrophic to the defense.

AT: If you're so confident that his case is solid then why not take it to court? Proceed with the case and Estrada can defend himself there?

RF: An analogy would probably be the best way of explaining this. In a game of basketball, you have five players on each side, you have a referee who is supposed to be neutral, you have rules. Theoretically, things being equal the better side wins. The problem is as far as Erap Estrada is concerned, the game has already been tilted against him from the very beginning. The referees, whom he feels he believes are going to blow the whistle every time against him, even if it is only the first quarter of the game, even if it is only 8-6 in favor of the prosecution. But for him, touch fouls are being called by the referees. His center and his other players are already saddled with three fouls each and it's only the first quarter.

You have the prosecution bullying us away, throwing elbows left and right, doing everything illegal according to the rules of the game and yet their fouls aren't being called. Sooner or later, if you're a coach of a basketball team in a situation like that, sure it's still early in the game and we don't know yet if we're going to win, but chances are with those biased judges it's impossible for you to win.

AT: Give us some concrete examples of why you believe you're not getting a fair trial.

RF: We'll start with his impeachment. The impeachment trial was prematurely terminated because the prosecutors walked out. We know under the constitution that that cannot be so. The chief justice who presided over that trial could have right there and then held the prosecutors in direct contempt of court. That is certainly an affront against the integrity and dignity of the proceedings. And yet they were allowed to walk away and conduct their business in the streets.

By the way, two of the prosecutors who walked out, the present Solicitor General, Simeon Marcelo, and the present Secretary of the Department of Justice, Hernando Perez, people who are supposed to be protecting the laws, were actually the very first ones who violated the constitutional process.

Number two, we all know that there are four grounds to remove a sitting president under the constitution: death, resignation, permanent disability and impeachment. In all of these instances President Estrada did not fall into. And yet when we challenged the legality of the Arroyo administration, the Supreme Court came out with a finding that Erap Estrada had "constructively resigned", a legal animal which is a first in Philippine judicial history. The basis for "constructive resignation" is supposedly excerpts of a diary (written by former Estrada chief of staff Edgar Angara in a local newspaper) which wasn't even presented in court; the author of the diary wasn't even called. President Estrada himself had categorically denied that he resigned and in fact there are two letters both addressed to the Senate president and the Speaker of the House, in accordance with the constitution, which spoke very clearly that what happened was a temporary disability and that the operative act should have been in accordance with the constitution - the elevation of the vice president as "acting" president. That was what the constitution provided. And we all know newspaper articles are double and triple hearsay and cannot be the basis of any judicial decision.

AT: If you felt that this decision was so ridiculous why then did you proceed to recognize the court.

RF: Because there is no other legal remedy. And Erap Estrada wanted to give the courts the chance to give him a fair trial. Because he believes very very strongly in his innocence. He gave the courts a chance. What led him to the decision that everything is now being orchestrated toward his conviction is one - the creation of a special division. We did not ask for a special division. We wanted a raffling of the case to a division that would be semi-permanent in character, that would be in a position to make a decision up to its conclusion. There's always a problem of justices retiring or resigning, most often because of age. And you would want a court at the time of making a decision, which would be composed of justices who had actually heard the entire testimonies of all the witnesses. And we had asked for the raffling of the cases to a division the composition of which would be relatively permanent in character. Instead of that, the entire Sandiganbayan forwarded our request, changed it now and said we were asking for a special division. Which we never did. We opposed the creation of a special division. We said you have to undergo raffle because that's what the rules of the Sandiganbayan state.

AT: Isn't it the law though, that they can create a special division? It's been done in other cases hasn't it?

RF: No, no. There are special criminal courts. But this is one court being created to handle the cases of one person. The special division created by the Supreme Court was a created division. There was no special division in the Sandiganbayan prior to that. The Sandiganbayan is already a special court because it only deals in cases involving public officials. It is a special court in itself. There are five divisions there who handle solely criminal cases against public officials. Nobody in particular. What they did was now to add a sixth division, a special division. They put in justices from the other five divisions and now this division is trying just one individual.

AT: Who picked the three justices presiding over this special court?

RF: The Supreme Court. The same Supreme Court which ruled that he had "constructively resigned", which ruled that the plunder case was constitutional, which ruled that a special division should be created. And also very recently passed upon the application of the son of President Estrada to be given bail as a matter of right. He felt that all the major decisions against him have all been against his interests, including the last one against his son, Jingoy Estrada. And so he just said, "I have given these courts a chance. I have tried to abide by the legal process. I submitted myself to the legal process and I have not been given a fair shot."

AT: Are there other examples you can site to show that President Estrada is not receiving a fair trial?

RF: Remember that there was this guy, he was the one who blew the whistle so to speak, his name is Governor Luis Chavit Singson. This guy is the only one in the entire case who has admitted to his crime. The only one. And yet he's the guy who is out. He has not even been charged. We have filed motions to the Sandiganbayan asking that he be charged as a co-accused. The Sandiganbayan has rejected that. They said he is immune from suit because he is the bribe-giver and they need his testimony. But you see, that's not how it operates. You have to be charged first as a defendant, then if you would want to work out some deal with the government, you first have to give your testimony and then you are later on discharged as a state witness. That's what should have happened. This is what is known as selective prosecution. The first two guys who testified against Estrada, Carlos Arelliano and Frederico Pascual, they needed their testimonies to put Estrada down, they gave them immunity. There had been complaints filed against them that they be included as respondents and accused in this case and they have not been charged.

AT: You have seen all the evidence. Are you 100 percent convinced of Estrada's innocence.

RF: I am 100 percent convinced that the prosecution will not be able to prove President Estrada's guilt beyond a reasonable doubt: if the rule of law is strictly followed, if the rules of evidence are strictly followed, if the rules of procedure are honored. Little things within the trial itself create doubt. Like inadmissable evidence being introduced and allowed to be marked as evidence. Obviously, hearsay testimony is allowed to remain on the record. Questions coming from a hearsay testimony are being allowed. It's very frustrating.

One witness in this trial, the very first witness, was presented a document unsigned, not showing that the person on the witness stand had a hand in the preparation of that document. They were asking him to identify, and we objected, saying the witness would be incompetent to testify on that, there has been no showing that the witness was the one who prepared it, there was no showing that the witness was the one who participated in the creation, there's no showing that the contents of this document can be verified by the person on the stand, and the document isn't even signed by the witness. Would you believe that the court allowed its marking as a piece of evidence for the prosecution? Tell me, is the court being fair with us?

AT: You have filed more than 130 motions during the trial. Critics have said that these are delaying tactics because you know Estrada is guilty.

RF: You know that defense councils are supposed to file motions to protect their client's interests. Let us say that there are really 10 major motions. What are the other 120? If you take a look at the records, those other 120 pertain to our motions to have those 10 material motions resolved. We have filed a motion for reconsideration with regard to the issue of house arrest. More than six months have elapsed and the court has not acted on our motion. A matter which could have been easily dismissed if it really was without merit. Chavit Singson's motion to implead as a co-accused, we filed that as early as August. They issued a dismissal of that motion sometime in October. We filed a motion for reconsideration and it's only yesterday that President Estrada received a copy of the resolution denying that motion for reconsideration. Four months elapsed before the court acted on it.

This is the inconsistency that President Estrada sees. If you try to see what his statements are, he says, "I want to face my accusers, I want to defend myself in court but give me a fair trial, give me a fair chance." That was all he's asking. He's not asking for exile. He's not asking for any special treatment. He says, "Just give me a fair chance." And he feels he has not been given that.

AT: It seems quite a daring thing to say, "I'm not going to participate in this trial."

RF: I'd say it's almost suicidal.

AT: Who's idea was it?

RF: It was his.

AT: Did you support his move? Did you plead with him not to do it?

RF: Yes, we did. As soon as the Supreme Court came out with a special division, he already wanted to discharge his lawyers. He said "Nobody, no court in the entire world would create a special division for one person - unless it was to convict." And that may be true. We have seen in history special courts being created. Has any of these special courts ever acquitted the person on trial? No. So we have here a situation where the Supreme Court creates a special division composed of handpicked justices. Erap Estrada says in his mind, this is the final nail in my coffin. They are making it possible to do that. And why is there is a need to do that? He says that the Supreme Court has to justify its decision to make Gloria Macapagal-Arroyo as the legitimate president of the Philippines. This court will not acquit him. Because to say that say he's acquitted of the charges means that the essence of EDSA Dos (the "People Power" revolt in January 2001) was erroneous. The premise of EDSA Dos, that Erap Estrada was a crook, that he did not deserve to be president, that premise would have been fatal for the "EDSA Two" forces.

AT: Are you questioning the entire judicial system in the Philippines?

RF: Erap Estrada is not questioning the entire judicial system. His lawyers are not questioning the entire judicial system. Erap Estrada questions the justice on him. And he is only therefore speaking of the way the Supreme Court and the Sandiganbayan has dealt with his case. Certainly there are so many other judges who are very upright, so many other brilliant justices in the entire judicial system, but these people are not the ones trying this case.

AT: What will the trial look like now? Will Estrada just sit there and defend himself?

RF: Well right now I have spoken with him for the past several days and right now he's thinking that he's simply not going to cooperate. Which means that he's not going to defend himself. He's going to allow all the evidence to come in and as far as he's concerned, even if the prosecution is not able to prove his guilt beyond a reasonable doubt, which is the standard in order to convict in a criminal case, the court is going to convict him anyway.

AT: Doesn't that make it easy for his detractors to claim that it's all just a tantrum because he knows he's guilty and thus by being dramatic he doesn't have to present his side?

RF: They can color President Estrada's actions anyway they want. Anyway as far as he's concerned, the prosecution wouldn't be able to present evidence to prove his guilt beyond a reasonable doubt. You must understand even without a defense, the burden is on the prosecution to prove that President Estrada is guilty beyond a reasonable doubt. The prosecution has to convince the court he is guilty. So it's not really a question of saying he's already guilty. In fact, these detractors have already pre-judged. What they should do instead is say, "Alright, so he's copped out fine, let's work at it and indeed prove he's guilty beyond a reasonable doubt."

AT: What is his frame of mind right now?

RF: He says he doesn't want to think about this anymore. And that he's preparing himself for being put in Muntinlupa, the state penitentiary. And then subsequently if the decision is that he be put to death under lethal injection then he will prepare himself.

AT: He won't be put to death, will he?

RF: Well that's what his detractors want. And if it's blood they want, then he's going to give it to them on a silver platter.

AT: What's the level of support for Estrada?

RF: I wouldn't want to comment on that. I am a lawyer and I can only speak as to the legal aspects. Let's just say it's not minimal.

AT: Any chance the lawyers will come back?

RF: Right now, no. You'll notice there are no conditions for the return of the lawyers. President Estrada is not going to hold the court hostage. He will not blackmail the court into doing things. He's saying, "I am convinced that you will not be fair to me and since you are not fair then you can just do whatever you want."

AT: This has unbelievable ramifications for this country. If Estrada is found guilty without a proper trial, anything could happen.

RF: With all due respect to the Sandiganbayan at this stage, they are trying their best at giving Erap Estrada a fair chance. Not necessarily a fair trial but a fair chance to be able to defend himself. That's why you'll notice a lot of effort to appoint court-appointed councils.

AT: But you already said that the fact that this special court exists in the first place isn't fair.

RF: Exactly. Then he personally believes that he is not going to get a fair trial even with the best lawyers.

AT: And all the lawyers agree with that.

RF: The lawyers do have their reservations to it. As early as the creation of the special court, Erap Estrada wanted to fire his lawyers. We convinced him not to do it. We told him, please give this court a chance to show that it is fair. That's why it took him one month to make his decision.

AT: All the lawyers agree that this has not been a fair trial?

RF: There are indications to that effect, yes. We will not go out and make a blanket conclusion as to it. But it is our perception that there are indications that Estrada has not been treated on equal footing as a regular accused.

AT: So you support his decision to dismiss his lawyers.

RF: I think it is something that we have to accept, not necessarily support. We are bound by whatever decision of the client. But we do understand the decision.

AT: Why did you argue to him not to dismiss his lawyers?

RF: Because people would put color in to his actions. Because they say, he's guilty, it's mere drama, etc. These are the fallouts that we expected. And certainly, if he does not have lawyers he will not get adequate representation, meaning he will not be able to defend himself. We told him that. You will be left out there. If you say you are not guilty, then your evidence must be presented in court. By refusing to cooperate by not engaging the services of council, your evidence to prove your innocence will not be presented in court. This is almost suicide.

AT: And there's no turning back?

RF: Certainly. He has not made any conditions for the return of the lawyers.

AT: What next?

RF: The Sandiganbayan probably sooner than later will make a decision that the rejection of all the lawyers, even those appointed by the court, is tantamount to a waiver of his right to representation. And so the court will continue to hear the case. And this is going to be a swift case. Because as you might expect, without opposition from the other side there will be no objections, no dilatory motions, no cross-examinations. This is going to be a quick case.

AT: Is there anything else you'd like to say?

RF: If I were a Sandiganbayan justice at this stage, I would try to sincerely listen to what the man is saying. If he is saying that he is not receiving a fair trial, I would like to look at the root of why he is saying this. Fairness is a matter of perception, too, and you have to show to the accused that he is being given a fair trial.

Being a Filipino, what I would want right now is that this is really a very sad event and the thing to do is for people to act with sobriety, not to go into any rash judgements. Certainly I am against any mass and popular uprisings against the government. What I would hope for is that the people who have a say in this case would be enlightened and hopefully try to address the concerns of somebody who feels he has been oppressed.

AT: What do you think when you hear President Arroyo say that President Estrada should follow the constitution and the rule of law?

RF: Look who's talking.

Ted Lerner is the author of the book Hey,Joe a slice of the city, and American in Manila. He can be reached via email at tedlheyjoe@yahoo.com.

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