Transcript of Sen. Bam's questions during hearing on GenSan road right of way project

Sen. Bam: So so far, nasuspend niyo na yung mga pambayad sa claimants. And I think, one basic issue here is the payment of DPWH to these so-called consolidators - mga abogado in some cases, probably dummies in other cases. You can actually make a policy decision na babayaran niyo lang yung talagang may-ari ng lupa na matagal na, for example. Of course, ibig sabihin niyan, libo-libo talaga yung kailangan niyong kausapin, which is probably the right process. Have you made a determination on not entertaining these so-called consolidators, or dummies, to begin with?

USec Karen Jimeno: Mr. Chairman, I think by law, we're really not supposed to entertain any dummies because in the first place, the reason why we can't make a policy decision to exclude special powers of the attorney because it is allowed by law. It is part of our civil code in terms of underagencies, and partnerships, specifically that branch of law. But in terms of validating the claims, that's why historically, we had DO 34 when I first started with DPWH, but as Undersectretary for Legal Affairs, I also saw the flaw in the system, that the approving authority when it comes to the central office, and then later on the endorsement comes from- at that time, because I believe the Undersecretary of Legal Affairs, it will be from me to the Secretary of DPWH. But because we were not part of the transaction historically, which was the same scenario that former Secretary Singson found himself in, na you're there to approve claims na minana mo na from previous secretaries, and then you're supposed to rely on all the endorsements of all the people in the bureaucracy based on the hierarchy. It's humanly impossible, so that is why I proposed to our Secretary at that time to come up with the department order that delegates the approving authority to each of the higher authorities that are tied to the projects. So in this case, pagka regional director, depending on the regions, and then the PPP Director for PPP Projects, and we have a task force. So, in terms of the requirements, land ownership is one of the proof that is required, but if you have a special power of attorney, because there are instances also na yung owner of the property, either matandang matanda na, may sakit, so they have a special power of attorney. Or if you have heirs that have not settled the estate yet, they tend to have a special power of attorney while the settlement of the estate is ongoing.

Sen. Bam: Okay, so let me clarify. So yung pagkakaroon ng special powers of the attorney, you allow dealing with people with SPAs?

USec Karen Jimeno: Yes, because it has basis in law.

Sen. Bam: It has basis in law. The question is, kung yung may mga SPA, meron ba silang ka-deal sa loob ng DPWH doon sa tinutukoy ni Sen. Lacson na mga speculation on land value, that's illegal. So yung pagkakaroon ng SPA, hindi illegal, pero kung yung mga may SPA ay may kakuntiyaba sa loob, yun po, illegal yun. Now, of course, if you really want to solve this problem moving forward, you can simply say - no SPA. Can you do that? Or kaya niyo ba yun gawin as a policy, o masyado bang komplikado iyon?

USec Karen Jimeno: I think, Mr. Chairman, that blanket prohibition is not only impractical, it would also be unfair for those who need SPAs talaga. For instance, as I've mentioned earlier as an example, land owners who are very old, incapacitated, physically incapacitated...

Sen. Lacson: Sen. Aquino, may I... Pero dapat magtaka rin kayo kung tatlong tao lang lagi may SPA.

USec Karen Jimeno: Yes. Uhm, Mr. Chairman that's a very good point. In fact, just to give you- I'd like to also quote here, yung- nung July 2017, I received a memo from our Regional Director for Region 12, si RD Ibrahim*, he pointed to several indicators ng fraud, or what makes validation, kasi by then we already had Department Order 65, which meant siy ana yung approving authority for the payment of Right-Of-Way Claims. And he raised certain concerns sa Region 12. And, among them, he raised na.. I'm going to look for the memo here. Ah, okay. So, here. This was dated July 3, 2017, and among the problems that he raised were "irregular manner of revocation of Special Power of Attorney and substitution or delegation of new authority to second persons." And I think, for those on the ground, which is precisely the point why we really need to, one, delegate dun sa mga regions talaga, but even then, yung mga nandoon on the ground na malapit sa projects, they found yung mga irregularities like this, na mga SPAs na mukhang illegitimately obtained. So, I think what we can do, kasi we saw this memo from RD Ibrahim; what happened was, one - we created a special task force to validate the claims in Region 12. But even then, we started getting more and more reports of fraud in that area. And even RD Ibrahim later told us na kahit daw mag special task force doon, feeling niya mathethreaten lang yung mga ipapadalang tao doon. That's why what happened was, later on, we suspended the payment of all claims, and then pinanigit pa namin yung funds. That is why Region 12 returned lahat ng funds for Right-Of-Way payments to the Central office. Kaya hawak pa po namin lahat ng pera for those claims. And, in fact, one of our lawyers in the Central Office raised to me a concern na because partially paid na yung ibang Region 12 claims, including those in General Santos City, baka naman daw kami yung i-sue for breach of contract, kasi partially paid na, which means it's like saying na validated na yung claims na iyan, bakit ayaw niyo na ituloy yung pagbayad? But it was because we were getting several warnings, and red flags, and reports of fraud.

Sen. Bam: Okay. In short, yan yung sinasabi ni Secretary Singson na the court is already telling you, ituloy niyo na yung bayad. Now, going back to my earlier point, yung dealing with people with SPAs. Kasi obviously yung 112 na taong iyan, they're not really the original owners of that land. Hindi naman talaga sila. I think it's pretty clear. Kasi grabeng laking lupa naman yung pagmamay-ari nila, kung 112 lang sila dun sa napakaraming lupain na yan. I think we can safely assume yung karamihan diyan, mga nag-SPA iyan, Special Power of Attorney, or they represent a set number of true land owners. My question is, yung due diligence ba ng DPWH goes to the next layer, yung ginagawa niyong investigation; kung totoo nga na iyong mga totoong may-ari, or yung may-ari noon, or yung may-ari pa rin sila ng lupa; If they are really in partnership with that person. Kasi kung coerced yung SPA, or hindi maexplain ng maayos, then obviously, may fraud na nangyari diyan. My question is, is Region 12 currently- and sabi niyo nga, it's dependent now on their regional office- are they going the next step, and going beyond nitong 112 na tao, chinecheck talaga nila sino ba talaga yung mga nakatira diyan, sino yung may-ari ng mga lupang iyan; are you doing that now?

USec Karen Jimeno: Well, answering from a Policy perspective, based on not only Department Order 65 but also we have, right now, recently issued DPWH Right-Of-Way Acquisition Manual, it's very voluminous, makapal siya, because it names all of the requirements in order to pay Right-Of-Way claims. 'When ito comes to, for instance, SPAs, there are requirements under the law as to what constitutes a valid SPA. So it has to be notarized, it has to comply with the requirements of an SPA. But I think following also jurisprudence in terms of when you're the validating authority, when you receive, even if it looks like a valid SPA- if you have knowledge of other circumstances which would lead you to suspect any fraud, then you have the duty to also investigate.

Sen. Bam: Yes, so ginagawa niyo iyan ngayon?

USec Karen Jimeno: Okay, I have to qualify my answer because it's not the scope of my function to that. Even if it's the RD.

Sen. Bam: RD, if I may ask. So, sa pagkakaalam ko po, my understanding is, merong task force na binuo ang DPWH currently para i-check lahat ng mga titulong ito. Is that correct?

A: Your Honors, actually, *inaudible*.

Sen. Bam: Okay. Are you going the next level? Apart from the 112 na claimants natin for the 2 Billion or so, chinecheck niyo po ba kung sino? Kung sila po ay representative, whether legally or not, ng iba pang mga may-ari ng lupa? Chinecheck niyo ba iyon?

A: Yes po, pero as of the moment, we suspended the processing of all of this because of these pending issues.

Sen. Bam: Well, palagay ko po baliktad. Baka yung investigation niyo yung makatulong sa hearings natin at tsaka sa investigation ng DOJ, kasi I guess yung tanong diyan, were these SPAs illegally obtained or not? Yung totoo bang may-ari ng lupa ay kinoerce, or finorce na pumirma ng mga SPA, I guess that's the first question. Second question is, kung sila ba - ito naman yung tanong ni Sen. Lacson - kung may kakuntiyaba sa loob na ibang mga miyembro ng DPWH. But let me first begin with - yung mga 112 pong iyon. I guess we can assume, RD, na they represent, or they should be representing more individuals, kasi hindi ko rin maisip na 112 lang yung may-ari ng lupang iyon. So tama ba yung assessment na iyon, RD?

A: In my case, your honors, ginagawa ko kaagad. I didn't have to personally check.

Sen. Bam: May nakausap ka na ba doon sa 112 na claimants?

A: Wala pa po, kasi hindi pa kami nagpoprocess nung *inaudible*.

Sen. Bam: Okay, pero balak niyo pa po sila kausapin?

A: Supposed to be that that is the subject of our new task force, to be created by the department.

Sen. Bam: Okay. So, USec, nabuo na ba yung task force formally, or plano pa lang iyan?

USec Karen Jimeno: It was formed, but because we were also told that it would be ineffective to use the task force; in fact I even have the message that the day before the Task Force was already- yung mga galing sa central office na pupunta ng General Santos to conduct the revalidation- they were even following up with me na, 'Tutuloy pa ba kami?' Because the Region 12 has been coordinating with us, they've made arrangements, and then I told them, hindi, hindi na tuloy. Because we were, at that time already coming up with a different solution for Region 12 in light of all the reports, and that is for us to require, as a matter of policy, judicial determination for all claims related to Region 12.

Sen. Bam: Judicial determination? Eh meron nang mandamos, eh.

USec Karen Jimeno: That's different, Mr. Chairman, because the mandamos also only relates to claims that were filed by certain claimants, meaning, those who only filed a petition for mandamos in the RTC of Gen San would be covered, but there were so many other outstanding claims, in Gen San and the rest of Region 12 that were also parts of reports that we received that were related to fraud.

Sen. Bam: Sorry, very quick question - yung mga proyektong ito, tapos na ba?

USec Karen Jimeno: It's a- may mix po. Pag sinabi naming outstanding claims, tapos na iyon.

Sen. Bam: Okay, so these roads have been completed already, tapos na po yung mga proyektong ito?

USec Karen Jimeno: Dapat, yes. Kasi that's the only way that they would be an outstanding Right-Of-Way claim.

Sen. Bam: Kung tapos na yung proyekto. So these projects are already completed, kailangan niyong bayaran yung totoong may-ari nito. Yung humaharap po sa inyo at mayroong titulo ay 112 na tao, at mukhang lumalabas, although hindi rin tayo sigurado, na they just represent other people who may have owned the land previously. Is that correct in your estimation? Tama ba yung logic na iyon so far?

USec Karen Jimeno: Mr. Chairman, when it relates to these claimants na kakaunti lang yung may hawak na SPA, I think our Director...

Sen. Bam: Yes, Director Saldivar, please answer. Tama ba yung logic na iyon, na yung mga kailangan bayaran, pero yung mga humaharap sa inyo, yung mga mayroong totoong titulo, ay probably consolidator lang sila nung mga totoong may-ari ng lupa?

A: Mr. Chair, as part of the due diligence that the legal service had exercised before recommended funding or payment, I myself called up the cashier of the Regional Office, Region 12, asking them how they do the release of payments. they told me, the one who I talked with, I just could not *inaudible* the name, but the lady- initially, even before payment was released dun sa unang releases, they asked the land owners to appear in the office, along with the attorneys, in fact, with their corresponding IDs and the ID of the attorney, in fact, and side-by-side; truck loads nga daw po sila eh. So, upon that representation, I was given the confidence that not only are we exercising due diligence in going over the documents, but also in ensuring that payments will just go to the land owners so if ever, meron ngang attorneys, in fact, their share- kung ano pa yung natitira na dapat ibibigay sa kanila, ay matatanggap nila.

Sen. Bam: Okay, so sinasabi niyo na yung nirerepresent nila, kasama naman nila nung nangolekta sila?

A: Yes sir, yan po ang representation sa amin.

Sen. Bam: Well, I guess, USec, it really boils down to a policy decision. Are we allowing yung ganitong klaseng pangangalakad? My understanding is that ito talaga yung pangangalakad sa DPWH, that you allow dealings with consolidators. Now, maybe some of us here feel na it's not at the right practice, and if so, ano yung policy decision? Because you can actually make a policy decision, we will only pay whatever, kung ano man. Will you be considering that, USec?

USec Karen Jimeno: Mr. Chairman, I think that's worth looking into at the moment, because of the problems we've encountered with Region 12. We have a draft departnment order that is ready for the Secretary's signature that requires judicial determination for Region 12 claims, because not only is it difficult to verify, but also, we've received reports from our Regional Director for Region 12 that there are physical security threats to people who validate claims. So it's not just an issue of how fool-proof your requirements are on paper; it's also an issue of security, and talagang threat to also life. In fact, I'm sure Mr. Katapang will share more. But during my first month pa lang sa DPWH, nakatanggap na ako ng anonymous letter noon that there was an attempt to kill one of the whistleblowers dito sa Right-Of-Way scam, and in fact, the person riding the car with him died. At that time I even thought na dapat hindi mabasa 'to ng parents ko or else they'll make me resign from DPWH right away. But it's that serious po. Merong mga issues on bodily and also talagang life-and-death situation.

Sen. Bam: Okay, thank you Mr. Chairman.