in Serious stuff, my friend

What this Aquino can do to those Marcoses

(From an email written by Ruben Carranza, a former official of Presidential Commission on Good Government, and addressed to Ricky Carandang, in reply to his questions regarding the latest proposed deal to “steal part of what was already stolen money.” The same email message was a note posted by Carranza on his Facebook page in which I was tagged.)

1. A PCGG-Marcos settlement is arguably barred now by the 2003 Supreme Court decision: it’s a final decision and it said that anything beyond the lawful income of the Marcoses from 1968 to 1985 is ill-gotten and to be forfeited.

The earlier SC decision in Chavez vs PCGG (sometime in 1999 I think) had laid down some requirements for transparency etc. in negotiating a compromise plus specified what can’t be included in one (e.g. no tax immunity, etc.).

But it can be argued that the Chavez case has been superseded by the 2003 decision as far as the validity of a compromise itself.

2. Just before I left PCGG, the last court document I drafted was meant to build an almost-idiot-proof/corruption-proof way of trapping the Marcoses and future PCGG officials in the finality of that SC decision.

The idea was to have a motion for execution of the SC decision filed in every case against the Marcoses et al (which is practically all PCGG cases) on the basic argument that the Marcoses already lost these cases once the SC said that they couldn’t legally claim to have earned more than $304,372.43 from 1968-1985.

While the 2003 decision involved the Swiss bank deposits, the reasoning applies to any Marcos assets — which is why Bong Bong’s admission — quoted in the same SC decision — is relevant because he speaks of all their Swiss assets — and we know that he is not referring only to the assets of the five foundations forfeited in that SC decision.

Here’s part of what Marcos Jr. said in open court — the last sentence is what the SC concluded about it:

ATTY. FERNANDO: Mr. Marcos, did you ever have any meetings with PCGG Chairman Magtanggol C. Gunigundo?

F. MARCOS, JR.: Yes. I have had very many meetings in fact with Chairman.

P[residing] J[ustice] GARCHITORENA: In connection with what?

ATTY. FERNANDO: In connection with the ongoing talks to compromise the various cases initiated by PCGG against your family?

F. MARCOS, JR.: The nature of our meetings was solely concerned with negotiations towards achieving some kind of agreement between the Philippine government and the Marcos family.

ATTY. FERNANDO: Basically, what were the true amounts of the assets in the bank?

PJ GARCHITORENA: So, we are talking about liquid assets here? Just Cash?

F. MARCOS, JR.: Well, basically, any assets. Anything that was under the Marcos name in any of the banks in Switzerland which may necessarily be not cash.

PJ GARCHITORENA: What did you do in other words, after being apprised of this contract in connection herewith?

F. MARCOS, JR.: I assumed that we are beginning to implement the agreement because this was forwarded through the Philippine government lawyers through our lawyers and then, subsequently, to me. I was a little surprised because we hadn’t really discussed the details of the transfer of the funds, what the bank accounts, what the mechanism would be.

Ferdinand Jr.’s pronouncements, taken in context and in their entirety, were a confirmation of respondents’ recognition of their ownership of the Swiss bank deposits”

3. So we then filed a motion for execution in what remained of Civil Case 141 (which was where the 2003 SC decision began) with respect to the remaining part of the case that involved about 1/3 of the Imelda Marcos jewelry now in the Central Bank (I see that the PCGG wants to auction them off; an Aquino administration auctioning them off would get a far better price because of (a) the credibility of the administration that would be taking that decision and (b) a sense of historic closure that certainly doesn’t hurt when selling proof of someone’s criminal extravagance.)

This same strategy of seeking the execution of what lawyers call the ‘ratio decidendi’ — the reasoning of the case — in the 2003 decision can be done, by way of different kinds of motions (a motion for summary judgment, ideally), in all other pending PCGG Sandiganbayan cases.

4. The part of the decision quoting Bong Bong was described by the SC as an admission by Bong Bong that he knows his parents acquired ill-gotten wealth and what these ill-gotten assets are (which he says is ‘everything’ and not just the Swiss bank deposits being litigated in 2003).

What does this mean if he becomes Senator? It means, first of all, that he is unfit for the office, and any Senator can move for his expulsion if the Senators agree that ‘disorderly behavior’ [which is the basis for disciplining a Senator] can’t possibly be more punishable that abetting and profiting from plunder;

(b) if he is elected, then the Constitution requires Marcos Jr. “upon assumption of office, (to) make a full disclosure of his financial and business interests” — so he cannot begin to discuss a compromise with the State without also disclosing the assets he claims to be his to compromise and

(c) he arguably may not even be part of negotiating any compromise with the State because the Constitution also says that “he shall not intervene in any matter before any office of the Government for his pecuniary benefit.”

5. If corrupt incumbents who have anything to do with any effort to surrendering the fight against the Marcoses can’t help it, then perhaps one option is to warn them of yet another constitutional provision: “The right of the State to recover properties unlawfully acquired…shall not be barred by prescription, laches or estoppel.”

A compromise — specially one that undermines a final SC decision against the Marcoses, that does not lead to the return of Marcos assets not yet found/frozen earlier by the PCGG, that essentially is being done in bad faith — can be undone and is not subject to estoppel.

6. A few final points about impunity: Just a few months ago, I was surprised to read — in a development that should have been but wasn’t well-covered in Philippine journalism — that the Supreme Court of Pakistan, faced with an earlier decision by the deposed military dictator Pavez Musharaff to unfreeze the ill-gotten Swiss deposits of the family of current President Asif Zardari (the husband of assassinated PM Benazir Bhutto), not only overturned this decision BUT cited the 2003 Philippine SC decision involving the Marcoses.

What we do with the impunity that the Marcoses still have matters to the rest of the world.

In my current work — going after the war crimes of ex-dictators and ex-warlords, helping governments and human rights activists and violations victims get compensation from the assets of these perpetrators, setting up truth commissions and war crimes courts to hold these violators to account — the half-finished effort to hold the Marcoses accountable for massive human rights violations and for large-scale corruption is still seen as an open question, one that matters to those fighting their own legacies of impunity everywhere else.

Whether to Peruvians dealing with Fujimori’s legacy and own efforts to return to power through his daughter, or to Serbs who can’t get Milosevic’s ill-gotten assets and whose own children and widow have taken control over those assets outside the country, or Indonesians who can no longer go after the dead Suharto and, it seems, even after his son Tommy, or to Liberians who cannot get a law passed in parliament to get Charles Taylor’s assets back because his wife and allies are Senators blocking that bill — how Filipinos deal with the Marcoses will shape their opinion of our moral standing as a people and will certainly impact on how international law, including the Rome Statute that created the International Criminal Court, is shaped.

If Aquino gets elected — and whether or not Marcos Jr. becomes Senator — the first order of business in fighting impunity mustn’t be a short-sighted effort to simply charge the Arroyo family with plunder for stealing a fraction of what the Marcoses stole and still possess.

It must be to (a) establish a truth commission that goes back to the start of the dictatorship and its repercussions up to now, with the power to recommend the creation of a human rights court to try perpetrators of rights violations during and after the dictatorship,

(b) possibly to abolish the PCGG and in its place establish a commission to implement the provisions of the UN Convention Against Corruption against anyone — Marcos/Marcos crony/heir and proxy of Marcos and Marcos crony in control of illicit-acquired assets — who falls within its ambit, with the power to file mutual legal assistance requests abroad as well as authority OVER the Anti-Money Laundering Council (AMLC) insofar as former and incumbent public officials are concerned.

The idea is to send a signal — to the Marcoses, to would-be Marcoses, to our own people, and to people everywhere who want to see our flag raised again in this fight.