By: Rigoberto D. Tiglao
Source: The Manila Times
Convicted on a law that doesn’t exist
IF you manage to plod through the Sandiganbayan’s laboriously worded—deliberately so, I suspect—70-page decision on the Imelda Marcos graft case, you will be astonished as I was as to how the Yellows and Reds have managed to weave a colossal web of propaganda lies about it. (The decision is downloadable at the Sandiganbayan website.)
The Sandiganbayan Fifth Division undertook a breathtaking legal contortion to convict Imelda, at best on a technicality, and at worst, on a non-existent law. Believe it or not, it is a technicality not even contained in the present one, but in the 1973 “Marcos” Constitution.
The decision was obviously rushed, and is likely to be reversed by the Supreme Court, since it has already a precedent — issued just last June — that dismissed basically similar charges against Imelda.
But a Supreme Court reversal isn’t really important. The decision has two aims.
One is to demonize the Marcoses so as to pressure the Presidential Electoral Tribunal not to rule that Ferdinand Marcos Jr. really won as vice president in the 2016 elections. Indeed, Vice President Leni Robredo was so quick as to complain about why the 89-year-old grandmother was allowed to post bail. A second aim is to convince people not to vote to the Senate Imelda’s daughter Imee who, going by the polls, is among the frontrunners in that election next year.
Let’s point out first the things which the Sandiganbayan Fifth Division’s decision absolutely did not say but which the Yellows and the Reds have been jumping over in glee claiming it did.
No plunder discussion
First, nowhere in the Sandiganbayan decision did it conclude that Imelda with her husband Ferdinand, as Red representative Neri Colmenares has been shrieking, “plundered” the nation’s coffers. Nowhere in the decision did the Sandiganbayan conclude, nor did it even discuss, whether or not the funds in the Swiss foundations allegedly owned by the Marcoses were acquired through corruption.
However, the dishonesty of the Sandiganbayan decision, obviously intended to make it a propaganda weapon for the Yellows, is obvious in that it states in its very first pages that the criminal complaints involve the Swiss entities which received the “bribes, facilitation fees, kickbacks or commissions from Japanese corporations or suppliers of roaders and graders for infrastructure projects.” But other than that assertion, there were no discussions on these.
These were allegations of the Yellows since 1986 or even earlier, but none of the complaints against the Marcoses even attempted to prove that such “ill-gotten wealth” were put in the Swiss entities. These were totally not discussed in the Sandiganbayan decision.
Second, nowhere in the Sandiganbayan decision did it claim that Imelda earned “as much as $200 million from the foundations’ investments.” A worse lie of this “$200 million” thing is the claim by the Yellows that the Sandiganbayan convicted Imelda for stashing “$200 million” in Swiss accounts. As I will explain in a subsequent column, this $200 million thing even puts the Marcoses in a good light, resolving a mystery of history that has puzzled me since 1986. (Hint: It has to do with the Central Bank’s desperate unsuccessful efforts in 1983 to prevent the country from falling into its debt crisis.)
It must be emphasized that contrary to what many Filipinos think, there is no law that makes it criminal for any Filipino citizen, not even a government official, to have overseas bank accounts or to set up foundations or businesses in Switzerland, Timbuktu or anywhere in the world.
What our anti-graft laws require for a graft conviction is that there must be proof that money in an overseas account or anywhere in the Philippines was criminally acquired through corruption, or the use of a government position.
So, what did the Sandiganbayan convict Imelda for?
Quoting the decision: She is “guilty beyond reasonable doubt for violation of RA 3019, Section 3(h) in relation to Article IX, Section 8 of the 1973 Constitution” for having a stake in seven “foundations” with monies in Switzerland (my emphasis, in boldface).
The term “in relation” reveals the legal contortion the Sandiganbayan exerted to pin Imelda on a very dubious technicality or on a non-existent law.
RA 3019 is the Anti-Graft and Corrupt Practices Act of 1960, and its Section 3(h) provides that one corrupt practice is “directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity…” (Again my emphasis, in boldface.)
The intention of this provision in the anti-graft law is as clear as day. It is graft if a government official intervenes using his position to favor a company in which he has an interest in.
For example, it is corruption if a public works official intervenes to get for his firm a government construction project, or to get a national road pass through a subdivision he owns. It is not corruption for him to just have shares in a construction or subdivision company.
As one of the many Supreme Court decisions on this issue (Macariola v. Asuncion and People v. Meneses, to cite two) pointed out, “ it is necessary that by reason of his office, he has to intervene in said contracts or transactions and, hence, the official who intervenes in contracts or transactions which have no relation to his office cannot commit this crime.” Strangely, the Sandiganbayan decision itself explains this important limitation of the anti-graft law in the cases filed against Imelda, which it used to dismiss two of the nine complaints against her.
It is certainly preposterous to claim that she used her positions as First Lady, Minister of Human Settlements, and Governor of the Metropolitan Manila Development Authority to intervene to benefit the entities in Switzerland her husband had set up.
Never mind, the Sandiganbayan justices however seem to say. There is another provision to convict Imelda, which is in Section 8 of the 1973 Constitution, which says that “The Prime Minister and the members of the cabinet may not … participate in the management of any business… “
The Sandiganbayan says there is evidence based on the documents surrendered by Swiss Prosecutor that there were instances in which Imelda, who became a Cabinet member (Metro Manila Development Authority governor and minister of Human Settlements) was in communication with the foundations, which it claimed were “businesses.” Therefore, she is guilty of graft.
It doesn’t even matter if, for example, the entities she set up were financed through donations intended to help Mother Teresa — this is what the Sandiganbayan argument is really saying. If a Cabinet member participates in any business, in Switzerland or Surigao, he is guilty of graft.
The Sandiganbayan argument is absurd. There was no law passed that implemented the 1973 Constitution’s Section 8 provision that banned a Cabinet member from “participating in the management of any business.”
An analogy would be the fact that our present Constitution bans political dynasties (Article II, Section 26) but there is no law that implements it. The Ejercitos, Angaras, Revillas, Binays, and Dutertes aren’t committing any crime.
Law doesn’t exist
In short, Imelda has been convicted by the Sandiganbayan on a law that doesn’t exist.
Basta! the Sandiganbayan justices seem to be saying. Imelda is guilty of a 1960 law “in relation” to that provision in the 1973 Constitution.
It just boggles the mind. That provision in the 1973 Constitution, which imposes a ban on a Cabinet member “participating in the management of any business” was deleted in the 1987 Constitution.
How in the world could Imelda be convicted in 2018 for charges filed in 1991 to 1993, for alleged crimes committed from 1968 to 1970 (when the foundations were organized) based on a provision in the 1973 Constitution, that was deleted in the present 1987 Constitution that is the fundamental law of the land? Note that the 1960 Anti-Graft and Corrupt Practices Act has a 10-year prescription period.
What is so suspicious is why the Sandiganbayan decision did not address at all this obviously significant argument against the charges against Imelda, which was one of the most important defenses her lawyers brought up.
In my faith in people, I give the Sandiganbayan justices a huge benefit of the doubt though. The justice who wrote the decision, Maryann Corpus-Mañalac was 20 years old, the associate justice Maria Theresa Mendoza-Arcega, 21, and the 5th Branch chair Rafael Lagos was 32 in 1986 when the Yellow Cult that had absolute control of media intensified its propaganda to demonize the Marcoses.
Were the justices convinced in the recesses of their minds since three decades ago that Imelda was a plunderer, and merely strived to find what they thought was a technicality to put her in jail? Indeed, I found it strange that the decision had to note that for conviction, “moral certainty only is required.”