Disini to pay damages in BNPP suit

In Disini v. Republic (promulgated on June 15, 2021, but the full decision came out only recently), the Supreme Court unanimously directed Herminio T. Disini “to pay the Republic of the Philippines temperate damages… of One Billion Pesos (P1,000,000,000.00) and exemplary damages… of One Million Pesos (P1,000,000.00) … [plus] legal interest… of 6% per annum from the finality of this Decision until their full satisfaction.” (p. 55)

Ably penned by Justice Ramon Paul L. Hernando, the 58-page decision “involves the recovery of ill-gotten wealth against Disini, a close associate of former president Ferdinand E. Marcos… in relation to the … [Bataan] nuclear power plant [BNPP] project awarded to Westinghouse Electric Corporation… and Burns & Roe, Inc. (B&R)… in 1976. The BNPP remains inoperable to this day.” (p. 2)

The Court held that “…Disini acquired ill-gotten wealth by receiving substantial commissions from Westinghouse and B&R in connection with the BNPP project…” (p. 38) Nonetheless, the Republic’s lawyers failed to prove the actual receipt by Disini of the alleged P50.5 billion in ill-gotten wealth; they presented only a photocopy (instead of the original) of a private document listing the said commissions.

The Court explained that “under the Best Evidence Rule, when the subject of inquiry is the content of a document, no evidence shall be admissible other than the original document itself…” (p. 39) Thus, the Court granted only temperate and exemplary damages but declined the Republic’s prayer for the claimed P50.5 billion in ill-gotten commissions.

Moreover, “while the Sandiganbayan [the court of origin] found Disini liable, it held that there was no evidence of President Marcos’ and Imelda’s receipt of the commissions. Thus, they were not held liable.” (p.6)

Oh, when will our government lawyers learn how to prove their claims via the elementary rules of evidence that ordinary law students know by heart? I have raised this lament in many columns on the ill-gotten wealth cases. (Example: See the last two paragraphs of my Sept. 26 piece, “Do the Marcoses have ill-gotten wealth?”)

On June 3, 2014, during the pendency of this case, Disini died. From whom then will the government collect the exemplary and temperate damages? The decision anticipated this question by saying that he “was substituted in the suit by his heir Herminio Angel E. Disini, Jr.” (p. 7)

This case reminds me of an earlier decision I wrote in PCGG v. Desierto (Feb. 10, 2003) that directed the Office of the Ombudsman to file “in the proper court, the appropriate criminal charges” against Disini. As a result, Simeon Marcelo, who replaced Aniano Desierto as Ombudsman, filed criminal charges in the Sandiganbayan against Disini.

After I retired from the Court and became an Inquirer columnist, I bemoaned, in my March 27, 2011 piece, that “despite decades-old charges of corruption, bribery and other crimes attending the BNPP, no one has yet been convicted or sent to jail for the fiasco.” Thereafter, Disini filed a libel complaint against our then editor in chief Letty Magsanoc and me. The then city prosecutor of Makati, Feliciano Aspi, dismissed the charge. But after he retired, his temporary successor reversed Aspi on reconsideration and forthwith filed, without prior notice to Letty and me, the libel charge in the Regional Trial Court of Makati.

I do not have the space to detail the agonizing processes Letty and I endured to defend ourselves. Suffice it to say for now that the Court of Appeals, the Department of Justice, and the new permanent city prosecutor of Makati dismissed the indictment. In separate proceedings, they all held that no libel was committed by my citing correctly and quoting verbatim portions of a Supreme Court decision. No appeal was taken from these dismissals.

While undertaking my defense, I vowed to seek justice, even revenge, and sue criminally, civilly, administratively, and/or ethically the temporary city prosecutor of Makati and his cohorts, the lawyers who initiated the criminal complaint, the RTC judge who refused to dismiss it despite its obvious lack of probable cause, and, of course, Disini.

However, as I reflected and prayed, I was led to the exhortation of our Lord Jesus in Romans 12:19: “Beloved, do not look for revenge but leave room for the wrath; for it is written, ‘Vengeance is mine, I will repay, says the Lord.’” Thus, I set aside my vow and enjoyed peace of mind in the Lord’s promise. To God be the glory always!

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