Calling a spade
Business World, 14 August 2013


Unbelievable. But unfortunately true. And from my point of view, wholly unjust.

I’d been following, off and on, the travails of former UP Diliman Chancellor Roger Posadas (PhD Physics) and his Vice-Chancellor Rolando Dayco (PhD Energy Engineering). It has been 17 years since the initial charges against them were filed by UP President Emil Javier. And now, unless there is a motion for reconsideration, and unless that motion is acted on favorably by the Supreme Court, the two of them are facing a minimum of 14 years and a maximum of 17 years in jail.

And what have they been found guilty of by the Sandiganbayan, as upheld by the Supreme Court (Martin Villarama, ponente) in a decision promulgated on July 17?

First, they have been found guilty of violating Sec. 3-e of the Anti-Graft and Corrupt Practices Act (RA 3019), to wit: “Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.” A crime for which they are sentenced to a jail term not less than nine years and not more than 12 years. (Which I don’t understand, because the penalties section of RA 3019 prescribes a maximum of 10 years for violation of Sec. 3 — does this mean that the Sandiganbayan, backed by the SC, can increase the penalty at will?)

Second, they have also been found guilty of violating Sec. 7-b of the Code of Conduct of Public Officials, to wit: “Section 7: Prohibited Acts and Transactions…. (b) Outside employment and other activities related thereto. — Public officials and employees during their incumbency shall not:

… “(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; …” A crime for which they are sentenced to the maximum jail term of five years.

In a nutshell, the manifest partiality presumably came about when Dayco, while OIC in the Chancellor’s office, appointed Posadas, then on leave, to be director of a project as well as a consultant in the formation of what is now the UP Technology Management Center. And since Posadas was still Chancellor, receiving compensation as a director of the project (30,000 a month for a year) and as a consultant (involving the creation of a learning module, for 100,000) was a no-no, at least according to the Sandiganbayan and the SC majority opinion. What was the value of the injury that was caused to government by such dastardly acts? All of 360,000. That was what went to Posadas (which he is ordered to refund).

So Posadas is sentenced to 14-17 years in jail for “causing undue injury” to government to the tune of 360,000. The irony is that it was not as if Posadas pocketed the money and didn’t do a damn thing. He actually did an excellent job — if the present success of the Technology Management Center is any indication, and his module is still being used now. What is more, it was Posadas who conceived of the project, who sought financing for it, and who saw it through to the end. There was actually no one else who could have done the job better than Posadas — and this was the opinion of all those who were part of the Technology Management Center’s creation, because they wanted him to be its first head. And the ultimate irony was that that money came from a Canadian government grant — not from the Philippine government (so how could our government have been injured?). Think of it, Reader. There was no diversion of funds; the project was successfully implemented; and there was no one better qualified to do it; and the money was a grant from a foreign government, who from all indications was eminently satisfied with Posadas’ performance. And yet Posadas is going to jail.

What is even worse is that Dayco, who received no monetary remuneration, is also sentenced to 14-17 years in jail. His only fault, as far as I can see, is that he appointed Posadas to the job — supposedly in violation of some rule that says that OICs are not allowed to appoint. How is that injurious to the government, one wonders? And how was he to know that he had no power to appoint? And how could he have been accused of manifest partiality, when there was no other qualified person? I personally think that Dayco was collateral damage in the clash between Posadas and Javier.

That isn’t all. It turns out that the CoA had ordered to suspend the payments of honoraria to Posadas for a while, a suspension which Posadas accepted, but then reversed itself when the Diliman Legal Office head opined that there was no problem with the payment of the honoraria — and the CoA auditor accepted the opinion. How can one expect the two scientists — Posadas and Dayco — to reject the Diliman counsel’s legal opinion? More to the point, how could Javier insist on filing charges against the two, even after the Diliman counsel’s legal opinion came out?

In his dissent, SC Justice Roberto Abad opines that the prosecution did not establish the guilt of Posadas and Dayco beyond a reasonable doubt, and further opines that the fault of Posadas and Dayco was “a simple administrative misstep” (i.e., certainly not a crime that merits at least 14 years in jail) that was enlarged by intense mutual hatred and rivalry, which the Office of the Ombudsman and the Sandiganbayan played into (and by implication, his colleagues in the majority). He also concludes, and I quote, “The choice of Dr. Posadas to head the project was not a case of ‘manifest partiality’ but of simple ‘manifest fairness.’” I agree totally.

I sincerely hope that the Supreme Court sees fit to change its mind. One can use any of the following to describe Posadas: arrogant, brusque, brilliant; brutally frank; disdainful of hypocrisy; impatient with fools; no people skills whatsoever. What’s more, it is clear that he loves his country — it never occurred to him to practice his enormous skill and talent abroad. But just ask any of his former students if the term “corrupt” can be applied to him. I am sure you will get a resounding “NO.”