[ANALYSIS | Deep Dive] Will Imelda go to jail for 77 years and other impertinent questions

by MLC | Nov 30, 2018 | Uncategorized

Source: Rappler.com

Old age is relevant only in determining the existence of a mitigating circumstance but is not a factor in the determination of criminal liability, the sentencing, and the service of sentences

After what seems like an eternity, a Marcos – Imelda no less – stands convicted for graft by a Philippine court for violation of Philippine laws, specifically, violation of Republic Act No. 3019, section 3(h) in connection with Article IX, Section 8 of the 1973 Constitution; cross reference the same provision in the 1987 Constitution.

In its 70-page decision, the Sandiganbayan Fifth Division convicted Imelda Marcos for 7 counts of graft but acquitted her in 3 of the charges, sentencing her to “suffer the indeterminate penalty of imprisonment from six (6) years and one (1) month as minimum to eleven (11) years as maximum, with perpetual disqualification to hold office.”

This week’s Deep Dive is into the intricacies of criminal law, sentencing, and procedural remedies at the Sandiganbayan, and beyond.

Effects of no-show

Imelda didn’t even bother to attend the promulgation, supposedly for medical reasons. She did party later that night.

Why is her no show significant? Because “(i)n case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket …If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these Rules against the judgment and the court shall order his arrest.” This is according to Rule 120, section 6, 2000 Rules on Criminal Procedure.

The immediate effect of her no show is that she has lost all her remedies, particularly to remain free on bail, to seek a reconsideration of the judgment, and to file an appeal from the Decision.

Under Rule 120, Section 6, she has 15 days from November 9, or until November 24, to: (a) surrender, and (b) file a motion for leave of court to avail of all remedies.

In that motion, she would have to state the reasons for her absence and to show that her absence at the promulgation was for justifiable cause. Should the Sandiganbayan find that it is so, she would be allowed to avail of the remedies she has lost, i.e., to post bail and to appeal the judgment. If she fails to do either or both, the decision becomes final and executory and she would have to serve her sentences.

Can she still post bail?

Assuming she surrenders and asks for leave of court to avail of remedies such as bail, can she still post bail?

The Rules on Criminal Procedure makes bail a matter of right only before conviction in the trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment.[1] Upon conviction, bail becomes discretionary and only upon filing of a motion to be admitted to bail by the accused.[2]

Should the trial court grant the application, the accused may continue to be free under the previous bail granted. However, as Imelda’s conviction is for a penalty greater than 6 years, the burden of justifying admission to bail is on her; in her application, she should show that:

1. She is not a repeat offender (recidivist, quasi-recidivist, or habitual delinquent, or has not committed the offense aggravated by the circumstance of reiteration);
2. She has not previously escaped from legal confinement, evaded sentence, or violated the conditions of her bail without valid justification;
3. She has not committed the offense while under probation, parole, or conditional pardon;
4. She is not a flight risk;
5. She would most probably not commit another crime during the pendency of her appeal.

Of course, the Supreme Court’s decision in Enrile v. Sandiganbayan et al. gives Imelda another option – to present a case for bail due to humanitarian reasons arising out of age and poor health. Whether she gets to do that, however, is dependent on what she does in the Sandiganbayan.

Why 7 sentences? Does this mean she’ll go to jail for 77 years?

The courts are entitled to impose as many sentences as there are crimes or felonies that they find to have been proven. This is because each crime or felony is an offense against the State for which the State, through the courts, may seek redress through a conviction of the accused and the imposition of the appropriate sentence for each offense.

Because the Sandiganbayan found Imelda guilty on 7 counts, it was duty bound to impose 7 sentences, regardless of the numerical duration and the manner by which they would be served. This does not mean, however, that she will go to jail for 77 years.

Successive and simultaneous service of sentences and the 3-fold rule

Under Article 70 of the Revised Penal Code, a convict should serve two or more sentences simultaneously “if the nature of the penalties will so permit,” if not, then the sentences are to be served successively, i.e., one after the other.

The sentences that can be served simultaneously are: (1) a principal penalty, such as imprisonment, and (2) an accessory penalty, such as disqualification. Two or more principal penalties of imprisonment cannot be served simultaneously as that would defeat the intention behind imposing as many sentences as there are convictions. For imprisonment terms, each sentence is to be served in its entirety, successively but subject to the “three-fold rule.”

The three-fold rule in Article 70 of the Revised Penal Code provides that “…the maximum duration of the convict’s sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the said maximum period. Such maximum period shall in no case exceed forty years.”

The Sandiganbayan Internal Rules do not provide for a rule on simultaneous or successive service of sentences or the three-fold rule under Article 70 of the Revised Penal Code but it has adopted the rule suppletorily and the Supreme Court has affirmed the application of the “three-fold rule” under Article 70 to the Sandiganbayan.[3]

In Imelda’s case, each sentence of “six years and one month to eleven years” is to be served in its entirety, i.e., 11 years, one after the other subject to the three-fold rule which caps the maximum duration of service to 3 times the longest prison term. In Imelda’s case, that would be 33 years. That is the functional equivalent of serving out 3 of the 7 jail terms in their entirety, one after the other. In serving out each prison term, Imelda simultaneously serves out the accessory penalty of perpetual disqualification from public office.

So, if Imelda goes to jail this year at 89 years old, she would have to serve 33 years, or until she is 122 years old, unless sooner pardoned by the President or given parole.

What’s age got to do with it?

Age has no bearing on the liability, other than a possible mitigating effect. It has no bearing on the service of the sentence, as well.

Old age is relevant only in determining the existence of a mitigating circumstance but is not a factor in the determination of criminal liability, the sentencing, and the service of sentences.

Moreover, seniority is not appreciated as mitigating if the offenses were committed before the convict became a senior citizen. At best, her advanced age would be relevant only in determining the location of detention.

Where to now, Meldy?

Whether this judgment reaches the Supreme Court for review, as many speculate it will, is really dependent on what Imelda will do in the next few days. That would be for the next Deep Dive.

The Sandiganbayan is not obliged to wait for her to surrender and/or file the motion for leave of court to avail of remedies, as her failure to appear during promulgation despite notice already justifies her immediate arrest and detention. Should that happen, we could have images of a booked Imelda with obligatory mugshot and fingerprinting in the next few days.

The next move is really hers. – Rapppler.com

How the law caught up with the Philippines’ Imelda Marcos and her stolen millions

by MLC | Nov 29, 2018 | Uncategorized

When a Philippine court sentenced former First Lady Imelda Marcos to 77 years in jail for corruption, her lawyer was taken ill, but not Imelda. She simply shrugged off the verdict handed down on November 9 and went partying that night. Her daughter Imee was holding her 63rd birthday party with guests that included President Rodrigo Duterte’s politically powerful daughter, Sara, who is also the mayor of Davao, and former presidents Joseph Estrada and Gloria Arroyo.

None of the guests hesitated to be photographed with the 89-year-old felon, Imelda. In fact, Senator Cynthia Villar quipped that the verdict was “bad timing” indeed, coinciding with Imee’s birthday. Villar, spouse of the second-wealthiest man in the country, had reason to complain. After all, the couple’s Nacionalista Party had just fielded Imee to run for the Senate next year.

The fact that she partied but violated court rules by not appearing during her sentencing was not lost on Associate Justice Rafael Lagos, whose division will now have to decide whether she goes directly to jail or continues to enjoy “provisional liberty” while she appeals the unanimous decision.

That Marcos was convicted of seven counts of graft for laundering over US$231 million through her secret Swiss accounts is unprecedented. It yanks wide open a window into the alternative world that Imelda and her husband, Ferdinand, once inhabited.

While Ferdinand was busy building “a New Society”, giving the military free rein to torture and kill thousands to keep him in power (according to an equally historic decision penned by Judge Manuel Real of the US District Court of Hawaii awarding damages to the regime’s human rights victims), Imelda bewitched the masses with her statuesque beauty and arts and culture projects evoking “the true, the good and the beautiful”.

Unknown to the nation then, the conjugal dictatorship was busy raiding the treasury, collecting kickbacks and earning from secretly owned private corporations, then laundering funds into numbered Swiss bank accounts. As Imelda Marcos once bragged to the Daily Inquirer newspaper: “We practically own everything in the Philippines.”

In court, she has refused to give any proof of ownership yet insisted everything was legally acquired.

The seven criminal cases that led to Imelda’s conviction are but a fraction of the 38 civil lawsuits, 78 criminal lawsuits and one forfeiture case filed against her in 1991 before the Sandiganbayan court. She has a total of 415 co-defendants in these cases, according to Associate Justice Mary-Ann Corpus-Manalac, who wrote the 70-page ruling.

The paperwork for the creation of the Trinidad Foundation. Photo: Handout

The paperwork for the creation of the Trinidad Foundation. Photo: Handout

HOW THE ACCOUNTS WERE SET UP

The problem facing prosecutors then was how to pin charges on Imelda for funnelling money to Switzerland and diverting part of that to buy prime properties in New York, when these had nothing to do with her official acts as the second most powerful person in the country. Ferdinand had created a Cabinet post for her as Minister of Human Settlements and also made her Governor of Metro Manila.

State prosecutors found the answer in an old law, the Anti-Graft and Corrupt Practices Act of 1960, and in the 1973 Constitution that had legitimised what Ferdinand Marcos called his “constitutional authoritarianism”. Both legal documents had asserted no Cabinet member could “participate in the management of any business”.

Prosecutors then decided to concentrate on specific foundations formed by Imelda Marcos under the names: Maler; Trinidad; Rayby; Palmy; Azio-Verzo-Vibur; Avertina; and Rosalys-Aguamina.

Justice Manalac concluded in her decision convicting Imelda that, based on the mountain of evidence submitted by the prosecution: “Mrs Marcos organised, coordinated and directed the affairs of Maler, Trinidad, Rayby, Palmy, Azio-Verzo-Vibur, Avertina and Rosalys-Aguamina foundations, either personally or through her designated agents, from the creation up to the end or dissolution thereof; including the transfer and disposition of their respective assets and accounts. In other words, Mrs Marcos participated in the management [of the business].”

Manalac’s decision noted a Supreme Court ruling in 2003, awarding the Marcos Swiss deposits in favour of the State, and said: “management of businesses, like the administration of foundations to accumulate funds, was expressly prohibited under the 1973 Constitution”.

he also noted that the Anti-Graft and Corrupt Practices Act barred Imelda, as a Cabinet Minister from “having financing or pecuniary interest in any business …”

To illustrate the complicated financial transactions Imelda (and her husband) undertook to squirrel away money and at the same time conceal ownership of it, a case in point is the Trinidad Foundation.

The foundation – likely named after Imelda’s late mother, Remedios Trinidad Romualdez, who died penniless – was established on August 26, 1970 by Markus Geel on Imelda’s orders, according to papers she had accidentally left behind in Malacanang Palace.

The paperwork for the creation of the Palmy Foundation. Photo: Handout

Based on the foundation’s “regulations” that she personally signed in Zurich on August 28, 1970, Imelda named herself the “first beneficiary” of both principal and interest. Trinidad’s “capital” of 100,000 Swiss francs (US$99,055 in today’s money) came from another account.

The regulations stipulated that upon her death, her children Imelda (Imee), Ferdinand and Irene would become beneficiaries “in equal shares”, but only when they turned 21. The regulations included a curious clause in favour of her only son, Ferdinand, providing him a portion even “before his 21st birthday to assure his support at the standard of living he is used to and his education to the doctorate level …”

On June 22, 1973, Imelda established another foundation called Rayby and instructed a Dr Theo Bertheau to withdraw the initial sum from the Trinidad Foundation. Again, she named herself the sole beneficiary. Before the funds transfer could be pushed through, she wrote an order dissolving Rayby.

“On the same date, she issued a written order to the board of Trinidad to dissolve the foundation and transfer all its assets to Bank Hofmann in favour of Fides Trust Co,” Justice Manalac noted.

On May 13, 1981, the Palmy Foundation was created in Vaduz. Among its board of directors was Dr Ivo Beck and Limag Management, a fully owned subsidiary of Fides Trust. Palmy then opened an account with SKA (Schweizeresche Kreditanstalt or Swiss Credit Bank). Palmy did not tell the bank that Imelda was the beneficial owner. Palmy merely said Fides Trust was its fiduciary or trustee.

However, the prosecution was able to link Palmy and Trinidad by noting securities previously registered under Trinidad were the same ones listed later under Palmy.

The Trinidad-Rayby-Palmy Foundations were firmly linked to Imelda by no less than Imelda’s trustee, Dr Ivo Beck. Before Swiss authorities, Beck signed a declaration “stating that the beneficial owner of Palmy Foundation is Imelda”.

An SKA official named G. Raber also signed a separate declaration before Swiss authorities that Palmy Foundation was owned by the “Marcos Familie”.

The Swiss Credit Bank paperwork. Photo: Handout

JUSTICE DELAYED

Why did Swiss banks officials, then notable for their discretion and willingness to accept money from authoritarian rulers, suddenly turn around and incriminate their clients?

In 1986, the Marcos family tried to withdraw money from their Swiss accounts but the scheme fell apart and caused the Swiss government to declare a unilateral freeze on their assets. The only way left for the Philippine government to recover the loot was through a tedious legal route. First, Manila had to sign an International Mutual Assistance on Criminal Matters Treaty (IMAC) with Switzerland in 1989.

The treaty enabled the Presidential Commission on Good Government to obtain bank documents and declarations from bank officials and the Marcoses’ trustees. PCGG had been created to chase the Marcoses’ ill-gotten wealth via president Corazon Aquino’s first executive order.

In their haste to flee, the Marcoses left behind a treasure trove of documents on their financial transactions. These documents were authenticated and verified by Swiss bank officials and the Marcoses’ trustees, through the IMAC.

The Swiss documents failed to arrive in time for Imelda’s anti-racketeering trial in New York where federal prosecutor Rudolph Giuliani was prosecuting Imelda for raiding the Philippine treasury to buy four New York buildings.

The American jury was unimpressed with the flowcharts the prosecution had prepared, showing the money moving from a Philippine bank the Marcoses secretly owned to a Hong Kong bank, which then remitted it to the couple’s numbered Swiss accounts. Then the money was forwarded to an account of Imelda’s friend in a bank in Italy, who then remitted it to New York for the purchase.

The jury apparently believed what Gerald Spence, Imelda’s lawyer, told them: she was only a housewife and her only crime was “loving a man for 35 years …[and] taking his lavish gifts,” referring to the buildings. The jury acquitted Imelda in 1990, enabling the Marcoses to brag that no Marcos had ever been convicted.

Despite the release of damning Swiss documents, Imelda’s graft cases moved at a snail’s pace.

The late PCGG chairman Jovito Salonga wrote in his book, Presidential Plunder, that Imelda successfully used delaying tactics. She changed lawyers often. She kept dangling the prospect of a monetary settlement in exchange for dropping all the cases. She also called in favours, especially from judges.

Before her recent conviction, Duterte said he had discussed with Imee Marcos the family’s offer to settle, and he was open to it.

Former PCGG commissioner Ruben Carranza, however, said the 2003 Supreme Court ruling – declaring all Marcos-claimed assets beyond US$304,372.43 as stolen – forever barred a settlement.

Instead of a settlement, Carranza prodded the Ombudsman and Commission on Elections to investigate Imee Marcos “criminally” for running for a Senate seat using the loot her parents stole, which “she knew of and helped conceal the crime”.

In 2011, Imee declared a net worth of 27.9 million pesos (US$524,842). In 2013, the International Consortium of Investigative Journalists (ICIJ) uncovered financial documents naming Imee a beneficiary and “financial adviser” of Sinta Trust, a British Virgin Islands company. Also named beneficiaries were her three sons: Ferdinand, Matthew and Fernando. When asked by the ICIJ about Sinta, Imee did not respond.

Like mother, like daughter.

Amante: Imelda’s foundations

by MLC | Nov 29, 2018 | Uncategorized

By: Isolde Amante

Source: SunStar.com.ph

NINE days ago, the Sandiganbayan ordered Ilocos Norte Rep. Imelda Remedios Romualdez Marcos to spend 42 years and seven months, minimum, up to 77 years in jail. How many days the former first lady does spend behind bars, if at all, is a pending question.

Last Friday, the anti-graft court asked her to post a bond of P150,000, while the justices weighed whether or not to let Marcos post bail. You can’t blame the lady for hoping she’ll stay free. Three years ago, the Supreme Court allowed her family’s loyal adviser Juan Ponce Enrile to post bail while he faced plunder charges, considering his age and surrender. He was 91 then. Now, he’s running for another term in the Senate.

Marcos is eight months shy of her 90th birthday and claims to be dealing with at least seven ailments, none of which stopped her from attending her daughter’s party on the day the Sandiganbayan handed down its decision.

As congresswoman, she has pushed for a railway from San Fernando, La Union to Laoag City in Ilocos Norte, to be constructed under a build-operate-transfer scheme. She’s always had a thing for edifices and infrastructure. Among her bills is one seeking the creation of the Philippine Millennium Development Fund, which would pool P600 million annually from the state gambling regulator and the sweepstakes office, plus bonds and “other investment fund subscription alternatives” pitched to overseas Filipino workers. Countless statements have been written that joined the Marcos widow’s name with the term “public funds.”

Ah, Imelda. So many layers of myth and caricature would have to be peeled away before we can see her more clearly. The Sandiganbayan’s decision last Nov. 9 brings back another name tied to the complex identity of the late dictator’s widow: Jane Ryan.

In 1968, Imelda and Ferdinand Marcos arranged for the use of the pseudonyms William Saunders and Jane Ryan in creating the Xandy Foundation in Liechtenstein. They later renamed it as the Wintrop Foundation. It wasn’t the only foundation the Marcoses created.

The Sandiganbayan’s Fifth Division mentioned at least eight foundations and one corporation where Imelda Marcos was said to have participated even as she held positions in the interim Batasang Pambansa or in the dictator’s Cabinet, where she controlled the human settlements office.

Among these was the Aguamina Foundation, where Imelda was active from 1971 to 1991, and which she and her husband “used as a conduit in the funneling or transferring of ill-gotten wealth” that amounted to US$80,566,483 as of Aug. 30, 1991. Yet in their income tax returns, the Marcos couple declared a lawful income of only US$957,487.75 from 1965 to 1985.

Another foundation, Avertina, had US$231,366,894 as of Dec. 31, 1989 held in Credit Swiss Bank, among other foreign banks. Like the other foundations the Marcoses created while in power, these entities had no “charitable, educational, religious” or any other public service functions, the Sandiganbayan pointed out.

“The evidence shows,” the Sandiganbayan said, “that these entities were put up primarily for the entrepreneurial activity of opening bank accounts and deposits, transferring funds, earning interest and even profit from investment, for the private benefit of the Marcos family as beneficiaries.”

For that, the court found Imelda guilty of seven counts of graft. These cases cover some US$200 million in government funds that went to Swiss foundations that Imelda and Ferdinand Marcos had created while they were in power. The court acquitted her in three cases, but ordered her to serve six years and a month, up to 11 years, for each of the seven counts of graft. She was also perpetually disqualified from holding public office. This is Imelda’s second graft conviction since 1993, although, as Rappler’s Lian Buan pointed out, the Supreme Court reversed her first conviction in 1998.

Yet to this day, there are people who choose to see Imelda as part-benefactor and part-victim. What foundation does their faith rest on?

Imelda Marcos convicted of graft

by MLC | Nov 28, 2018 | Uncategorized

Source: TheHerald.com.au

The Philippines’ anti-corruption court has ordered the arrest of former first lady Imelda Marcos after finding her guilty on seven counts of graft during the two-decade rule of her husband and former dictator, Ferdinand Marcos.

Marcos, 89, famous for a huge collection of shoes, jewellery and artwork, is facing dozens of protracted graft cases that have hounded her since her family was toppled in an army-backed popular uprising in 1986.

The court ordered Marcos, a congresswoman, to serve six to 11 years in jail for each of the seven counts of graft. She was charged for making seven bank transfers totalling $US200 million ($A275 million) to Swiss foundations during her term as Manila governor.

Marcos and her representatives did not attend the legal hearing on Friday.

The arrest warrant may not be executed immediately because Marcos can appeal Friday’s ruling by the Sandiganbayan court, a prosecutor said.

“She can elevate it to the Supreme Court if she sees grave abuse of discretion in the Sandiganbayan’s decision. So this is not yet final and executory,” assistant special prosecutor Ryan Quilala told reporters, adding she can also file for an application for bail.

Under the rules of the Sandiganbayan, the former first lady has 15 days from promulgation of the ruling to file an appeal, and the anti-graft court has 30 days within which to decide on it. Marcos may also go straight to Supreme Court to seek relief.

Marcos, who is serving her third straight term as a member of congress, has registered to contest an election to succeed her daughter, Imee Marcos, 62, as governor of Ilocos Norte, the stronghold of the still powerful Marcos family.

Imee is running for the Philippine Senate in 2019.

Ferdinand Marcos ruled the Philippines for two decades, placing the country under martial law in 1972, during which time thousands of opponents were jailed, killed or disappeared.

He was accused of amassing more than $10 billion while in office and died in exile in 1989.

Australian Associated Press

Sandiganbayan finds Imelda Marcos guilty of graft; orders arrest

by MLC | Nov 27, 2018 | Uncategorized

Source: UNTV News and Rescue  

QUEZON CITY, Philippines – The Sandiganbayan Fifth Division on Friday (November 9) ordered the arrest of former First Lady and Ilocos Norte 2nd District Representative Imelda Marcos after she was found guilty of seven counts of graft.

The anti-graft court sentenced the 89-year-old former First Lady to a minimum of six years to a maximum prison term of 11 years for each count of graft with perpetual disqualification from holding public office.

The decision was in connection with a case filed in 1991 when Marcos was charged with 10 counts of graft for having financial interests in creating private institutions in Switzerland and maintaining Swiss bank accounts from 1978 to 1984 while still holding several positions in the government.

The case particularly referred to Marcos’ position as then Governor of Metro Manila and Minister of Human Settlements.

The anti-graft court, however, acquitted her in three graft cases.

Among the evidence presented by the prosecution was the sworn statement of former Solicitor General Frank Chavez detailing how the former First Lady utilized their Swiss foundations to amass millions of dollars in ill-gotten wealth.

The documents also included bank records and some hand-written letters of the Marcoses addressed to foreign banks.

“There were seven Swiss foundations that were created by the Marcoses. Doon pumapasok iyong mga foreign currencies. They’d close one, then they’d transfer doon sa isa. These seven foundations ay connected sa isa’t isa,” said prosecution member Atty. Rey Quilala.

The trial on the case is the longest in the anti-graft court’s history reaching nearly three decades or 26 years.

Marcos and her legal team did not attend the promulgation. The court said Marcos can post bail while appealing the conviction and has given her 30 days to explain her absence in the proceedings before the formal issuance of warrant of arrest.

“May remedies pa naman po si First Lady. If she avails for those remedies pwede pa rin siyang makatakbo..Pwede niyang iakyat sa Supreme Court kapag may nakita siyang grave abuse of discretion doon sa desisyon ng Sandiganbayan. Hindi pa ho siya final and executory,” Quilala explained.

“Kapag nagpakita naman siya sa court, pwedeng i-lift ang warrant of arrest,” he added.

In a statement issued later in the afternoon, Rep. Marcos confirmed that she received a copy of the anti-graft court’s decision.

She explained that her lawyer was in the hospital and so they were not able to attend the promulgation.

Nevertheless, she assured to appeal the decision by filing a motion for reconsideration.

“My Attorney of Record, Atty. Robert Sison, has been indisposed and is presently confined at the Asian Hospital. Justice Lolong Lazaro, who has previously appeared as counsel in this case, will act as my counsel in the interim. He is presently studying the decision and has advised us that he intends to file a Motion for Reconsideration,” the former First Lady said. – Marje Pelayo (with reports from Grace Casin)