Justice delayed: Delay is the strategy

“Only in the Philippines” becomes quite unfunny when it refers to a country where criminals are glorified, and the larger the loot, the stronger protection is afforded, so it seems. In our country, household staff are sent packing if they steal any amount of money, employees are fired for loss of trust, and thieves in the streets are jailed if caught.

Try stealing billions, not in peso but dollar denominations, and your fate will change. You can evade punishment, and run for and hold public office – a public trust, and mock the grave of whoever coined the phrase “crime does not pay.”

Maybe I am totally out of line. Maybe people are just waiting for the more than 30 years for due process to play out and result in a court decision that lays out the truth – finally, before justice is served. Will facts suffice to right the wrong, put people in their rightful place, and make them pay back the unthinkable aggregate of all that was stolen? I share these Sunday facts and lessons from the Sandiganbayan’s People vs Imelda Romualdez Marcos case.

1. When she defended that the money in Swiss bank accounts were legally acquired, this is a negative pregnant statement. She had unwittingly and impliedly admitted that the money belongs to them. She also stayed silent and did not specifically deny the detailed allegations about accounts belonging to them. In fact, she did not present any contrary evidence, according to the court.

Over a 20-year period, the combined income tax return of the spouses shows only a total of $957,487 declared. (This is the equivalent of about more than just P2 million annually – a far cry from the loot that runs into $10 billion based on various sources, and certainly not coming from previous earnings as a lawyer, which was one of the favorite tunes of the late strongman.)

2. She said she couldn’t be liable for graft because she did not take interest in any business, her money being in foundations. To be liable for graft, she needed to hold public office, and that she did as minister of Human Settlements, Metro Manila governor, and member of the Batasang Pambansa. Then she had to take advantage of her position in having financial interest in any business. Her defense was that the moneys are in foundations that are not engaged in business. The Sandiganbayan said they are foundations in name only and their business is to receive deposits transfer funds, earn interests and make investments.

The foundations were not used for any endowment or charitable purposes. In fact, in some of them, Mrs. Marcos was unabashedly named beneficiary, to be substituted by Imee and Bongbong upon her demise.

3. They use trustees and pseudonyms but they always make sure there are documents showing them as real owners of the accounts. There will be signed trust agreements, rules adapted by the foundations that show who decides, and even on accounts where they use the pseudonyms William Saunders and Jane Ryan, they sign the opening of the bank accounts using their real names. (The only way to remove paper trail even in complex transactions is just go verbal, and have absolute trust of your trustees. But one will also need to believe there is honor among thieves.)

4. Mrs. Marcos intervening or asking then BSP governor to extend a hefty loan to one of her Swiss companies is but an example of how comfortable they were in using absolute power to use public funds for private enrichment. The power extends to their private trustee who can compel action from the BSP by simply saying “I highly recommend” the loan for approval. (Of course, the dictatorship was also comfortable then to exact levy from dirt laborers and divert the funds –the infamous multibillion coco levy funds – as well as freely use resources of private corporations sequestered by the government).

5. With lack of contrary evidence, delay is the name of the game. For example, the first information against Mrs. Marcos was filed in 1991, and the start of trial was postponed for various reasons for nine years. On one occasion, the judge inhibited himself in the consolidated case trial, pretrial conference for most of the cases took six years, postponements were granted for reasons such as Mrs. Marcos going on a foreign trip, and to give time to review voluminous documents submitted by prosecution.

After more than three decades, her conviction on seven cases can give her minimum of 42 years of jail time. The strategy has always been not to have a final judgment during her lifetime and not to get jail time. Not an easy feat for anyone average, but she is no average thief. Even if the spouses were found guilty much earlier in courts of five other countries for the same ill-gotten wealth and human rights abuses, no one would put her behind bars in our country. None of her conspirator goes to jail, too.

In her worst-case scenario, there is the presidential pardon, which cannot be stopped as sure as a Libingan ng mga Bayani burial came in daylight, as if deep in the dark of night. Pardon does not obliterate civil liabilities, but will the country at least get justice by recovering a hefty part of what was stolen from us? Beggars can’t be choosers, but if we are mendicants as a nation, it is because we have chosen to be such. We can choose not to be.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He is the chairman of the Tax Committee, and the vice chairman of EMERGE (Educated Marginalized Entrepreneurs Resource Generation) program, of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.