The Imelda Marcos conviction and judicial courage 1



Source: Manila Bulletin

What are the salient points of the recent Imelda Marcos conviction by the Sandiganbayan?

First.  Imelda Marcos  was  convicted of   Section 3 (h) of the Anti-Graft and Corrupt Practices Act making it unlawful for  a public official to  “directly or indirectly have financial or pecuniary interest in any business, contract, or transaction in connection with which he (she) intervenes or takes part in his (her) official capacity, or in which he (she) is prohibited by the Constitution or by any law from having any interest.”  To convict, proof beyond reasonable doubt was required. That means moral certainty, not  absolute certainty,  that the accused feloniously committed the crime. That was achieved.

Second. Approximately US$200,000,000 were involved in the  seven private foundations of the Marcoses in Switzerland despite their salary only estimated as not  even reaching US$1,000,000. Imelda Marcos was, at that time, minister of human settlements and member of the Batasan Pambansa. The positions were  full-time government jobs.  No strong countervailing evidence was  effectively presented to debunk such proven facts despite chances for Imelda Marcos to present witnesses for such purpose.

Third. The “trier of facts” was a collegiate body of three justices of the Sandiganbayan’s fifth division. Their determination was unanimous. At this point, only a stretching of  the imagination can say that  these three magistrates  — trained in the appreciation of evidence and with lengthy experience in deciding criminal cases — can be so negligent  or, borrowing the words of the Supreme Court in abuse-of discretion-cases, acted “whimsically or arbitrarily in a manner so patent and so gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined.” Neither can they be accused of partisanship considering the patience they showed and the opportunities they gave to Imelda Marcos to present witnesses for her defense.

Fourth. It is quite revealing that, at the very end, Imelda Marcos seems to take the case nonchalantly. Neither she  nor  her lawyers attended the decision’s promulgation. While the accused may be excused due to very meritorious reasons, such as being ill-disposed, the lawyers must at least be present.  The Sandiganbayan’s  order of arrest  could have been prevented had the lawyers, in open court,  requested the availment of her exising bail for her provisional liberty during   the motion for reconsideration or appeal.  It is interesting to see the explanation on their absence. At any rate, bail will most likely be granted.

Fifth. In the event that the case is appealed,  the Supreme Court  cannot entertain new evidence. The limit  of  its  review  is  to  examine only the proofs deliberated upon by the “trier of facts.”  Accordingly, the Supreme  Court is duty-bound to give the greatest  weight to the Sandiganbayan’s  factual findings.

But  all those who rejoice in the Sandiganbayan’s decision must manage their expectations.   The Supreme Court has lately favored the family of the dictator Ferdinand Marcos in their decisions:  the grant of the   Marcos burial at the Libingan ng mga Bayani,  the exoneration of Imelda Marcos in the LRT-PGH graft  and dollar-salting charges,  and the  dismissal of the Imee Marcos case involving the damages sought against her concerning the death of Archimedes Trajano.

Many ask: would the final outcome be any different in this latest Imelda Marcos conviction?  Will a majority of the members of the Supreme Court again save her from this  ignominy which, to many, is so deserving? Will Associate Justice Marvin Leonen’s  eye-opening observation in his dissent   in the Enrile bail case  once again come to fore that, in our justice system, “there are just some among us who are elite” and “who are powerful and networked to enjoy privileges not shared by all”?  Let us hold our breath.

But there is one surprising revelation   emerging.  We are now witnessing  the courage of the courts to decide against   those who are considered  as powerful and close to the “powers that be.”

And there is a greater revelation.  Judicial independence is now perceived by many, not as   emanating from majority of the Supreme Court  justices but, astoundingly,  as  coming from the  lower court judges.  We have seen this first in Judge Andres Soriano of the Makati Regional Trial Court Branch 148 who rendered ineffective    President Duterte’s arrest-order against Senator Trillanes. Now, it’s Sandiganbayan Associate Justices Rafael Lagos, Maria Theresa Mendoza-Arcega, and Maryan Corpus-Mañalac.

Truly,  this emerging  exhibition of judicial courage   exponentially elevates  the significance of Imelda Marcos’ conviction to an institutional level. Hopefully it continues.