Imelda wins again in PCGG case

Monday September 24, 2018 ()

Despite being dead for over a decade, Frank Chavez the Solicitor General of Cory Aquino, continues to lose cases for the government. He has lost this year another case in Cory Aquino's obsessive fight to recover alleged hidden wealth from Mrs. Imelda Marcos and the Marcos family.

In a 53-page decision dated June 27, 2018 (but released only recently), the Supreme Court affirmed a lower court ruling acquitting the former first lady and Ilocos Sur Rep. Imelda Marcos in the dollar-salting case involving millions of dollars in Swiss bank accounts. The court junked the petition for review filed by Chavez for lack of merit.

The SC affirmed the findings of the Court of Appeals that the there was no error in judgment committed by the Manila Regional Trial Court in acquitting Marcos. She was acquitted by the lower court of 32 cases of dollar-salting in 2008. Dollar-salting is committed when dollars are removed from the Philippines without approval from the Bangko Sentral ng Pilipinas (BSP), and transferred to an account outside the Philippines.

Imelda Marcos
(Former First Lady Imelda R. Marcos)

This fresh acquittal reinforces Mrs. Marcos's acquittal in a case filed in a New York City court, which the Cory Aquino government twisted the US government into entertaining, evidently on the promise of favorable action on renewing the military bases agreement covering Clark and Subic. Imelda won her case in spectacular fashion. Cory caused two planeloads of evidence to be flown to New York City, but the effort came to nothing. The presiding judge dismissed the case after one look, saying he wondered why an American court was hearing a case that clearly belonged to a Philippine court.

No homecourt advantage

The New York decision forced the Aquino government and the PCGG to seek a legal victory here at home — only to discover that there is no homecourt advantage at home.

I have often wondered why the government and the Presidential Communication on Good Government (PCGG) have persistently lost cases against the Marcos family on the allegedly unexplained wealth issues. And yet, there persists the Yellow urban legend that President Marcos stole billions of dollars from the Philippines, but which two Aquino governments could never prove in court.

A handful of books that sprouted post-EDSA about the Marcos billions have been grounded to dust and are totally forgotten.

Anyone who talks of Marcos kleptocracy is reduced to silence once asked to prove the claim and answer this question: If Marcos stole so much, from whom or from where did he steal and how? This is elementary because when you accuse someone, especially a government official of stealing money or whatever, you have to show or explain from where the money or wealth was stolen. It cannot just be ascribed to an imaginary treasure left by a Japanese war criminal, or to an entity called the Philippines. If the source is the public treasury, there is surely a story to tell.

But Marcos never stole from public funds. On the other hand, Noynoy Aquino has over a hundred billion pesos of public funds missing because of his disastrous Disbursement Acceleration Program (DAP).

Misguided obsession

In my personal research, I have come upon compelling information to show that the error in the Marcos wealth story fundamentally began from the misguided obsession of Cory Aquino to prove by whatever means that Ferdinand Marcos and his cronies stole billions of dollars from the Philippines.

In creating the PCGG, under the chairmanship of former senator Jovito Salonga, Cory tried to cloak the effort under a semblance of law, but in practice its policy of sequestration and confiscation of so-called Marcos assets proved critically flawed once challenged in court.

In several decisions of the SC, the weakness of the government's case and the failings of the PCGG were laid bare.

I call particular attention to the SC decision en banc in [G.R. No. 104768. July 21, 2003] Republic of the Philippines, petitioner, vs Sandiganbayan, Major General Josephus Q. Ramas and Elizabeth Dimaano, respondents.

The decision reveals a lot about the weakness of the PCGG's sequestration program.

Bernas and PCGG

During the writing of the 1987 Constitution, the Aquino government tried to free the PCGG from the Bill of Rights and due process.

The SC quotes at length an opinion of Fr. Joaquin Bernas, a member of the 1986 Constitutional Commission.

Fr. Bernas addressed the commission in this fashion:

"Madam President, there is something schizophrenic about the arguments in defense of the present amendment.

"For instance, I have carefully studied Minister Salonga's lecture in the Gregorio Araneta University Foundation, of which all of us have been given a copy. On the one hand, he argues that everything the commission is doing is traditionally legal. This is repeated by Commissioner Romulo also. Minister Salonga spends a major portion of his lecture developing that argument. On the other hand, almost as an afterthought, he says that in the end what matters are the results and not the legal niceties, thus suggesting that the PCGG should be allowed to make some legal shortcuts, another word for niceties or exceptions.

"Now, if everything the PCGG is doing is legal, why is it asking the ConCom for special protection? The answer is clear. What they are doing will not stand the test of ordinary due process, hence they are asking for protection, for exceptions. Grandes malos, grandes remedios, fine, as the saying stands, but let us not say grandes malos, grande y malos remedios. That is not an allowable extrapolation. Hence, we should not give the exceptions asked for, and let me elaborate and give three reasons:

"First, the whole point of the February Revolution and of the work of the ConCom is to hasten constitutional normalization. Very much at the heart of the constitutional normalization is the full effectivity of the Bill of Rights. We cannot, in one breath, ask for constitutional normalization and at the same time ask for a temporary halt to the full functioning of what is at the heart of constitutionalism. That would be hypocritical; that would be a repetition of Marcosian protestation of due process and rule of law. The New Society word for that is backsliding. It is tragic when we begin to backslide even before we get there.

"Second, this is really a corollary of the first. Habits tend to become ingrained. The committee report asks for extraordinary exceptions from the Bill of Rights for six months after the convening of Congress, and Congress may even extend this longer.

"Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee report is asking for is that we should allow the new government to acquire the vice of disregarding the Bill of Rights.

"Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin to think that they have a vested right to its practice, and they will fight tooth and nail to keep the franchise. That would be an unhealthy way of consolidating the gains of a democratic revolution.

"Third, the argument that what matters are the results and not the legal niceties is very disturbing. When it comes from a staunch Christian like Commissioner Salonga, a minister, and repeated verbatim by another staunch Christian like Commissioner Tiongson, it becomes doubly disturbing and even discombobulating. The argument makes the PCGG an auctioneer, placing the Bill of Rights on the auction block. If the price is right, the search and seizure clause will be sold. Open your Swiss bank account to us and we will award you the search and seizure clause. You can keep it in your private safe.

"For these reasons, the honorable course for the Constitutional Commission is to delete all of Section 8 of the committee report and allow the new Constitution to take effect in full vigor. If Section 8 is deleted, the PCGG has two options. First, it can pursue the Salonga and the Romulo argument that what the PCGG has been doing has been completely within the pale of the law. If sustained, the PCGG can go on and should be able to go on, even without the support of Section 8. If not sustained, however, the PCGG has only one honorable option, it must bow to the majesty of the Bill of Rights."

Despite the impassioned plea by Commissioner Bernas against the amendment excepting sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the amendment as Section 26, [44] Article XVIII of the 1987 Constitution. The framers of the Constitution were fully aware that absent Section 26, sequestration orders would not stand the test of due process under the Bill of Rights.


  • Why Imelda keeps winning, why PCGG loses, Yen Makabenta, September 25, 2018, The Manila Times


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