Justice by attrition  

In November 2001, the late Sandiganbayan Presiding Justice Francis Garchitorena was indefinitely suspended by the Supreme Court and fined P20,000 for gross negligence of duty. Of 198 cases raffled to his division, 138 had long been submitted for decision. He was given six months to clear the backlog, which included the Marcos cases.

Garchitorena, a bright lawyer with a sharp tongue, had been active in the anti-dictatorship movement, and was appointed by then President Cory Aquino soon after Edsa. Few could accuse him of stalling the Marcos cases. Asked about his suspension, he said some had been handled by other justices. “All of these is not a product of sloth,” he said.

Years earlier I had put the same question to him: why was it taking so long? Many Marcos associates had by then surrendered assets and turned state witness. It was not that simple, he said. The Marcoses had retained the country’s most experienced lawyer, Estelito P. Mendoza, solicitor general for 14 years under Marcos. He had complete mastery of court procedure, and the officials now across the table had once been his subordinates.

There was, Garchitorena believed, a deliberate strategy of delay across some 32 cases. Through pleadings and repeated postponements, the cases dragged on; original documents went missing; changes in the Presidential Commission on Good Government (PCGG) leadership meant custody of evidence was not always consistent. But what struck me most was his final observation: that with enough time, the fate of a case could change completely, once a less adversarial administration came into power.

He was describing, 35 years in advance, what happened this month.

On Sept. 9, the Supreme Court released a decision its first division had promulgated on June 10, reversing former first lady Imelda Marcos’ 2018 conviction on seven counts of graft. It rests on three grounds. In four of the cases, the information accused her of holding a prohibited interest as a member of the Interim Batasang Pambansa, while she was convicted under a constitutional restriction applying to Cabinet members. The charges were never amended.

Second, the Swiss documents linking her to the foundations were treated as private documents requiring authentication, and the witnesses could establish how these papers reached government hands but not their genuineness or due execution. Third, the prosecution failed to establish that the foundations were “businesses” within the meaning of the statute.

Not one of these grounds pertains to whether the money was stolen.

That question was answered years ago, in a civil case. In 2003 the Supreme Court ordered the forfeiture of $658 million held in those same foundations, declaring the deposits ill-gotten. That judgment stands. Our legal system therefore holds, without contradiction, that the money was unlawfully acquired and that no one may be convicted of having had an interest in it. The standards of proof differ: preponderance of evidence in the civil case, proof beyond reasonable doubt in the criminal one.

Technicality, it is tempting to say, is the last refuge of the guilty. But these rules, that no conviction may rest on a charge never made, that documents must be authenticated, that penal statutes are read strictly, protect ordinary defendants every day. The rigor cannot be faulted, and yet it reads as a favor.

Which returns us to Garchitorena. Delay rewards those who can afford to wait, converting wealth and expert counsel into time, and time into acquittal. It came from three directions at once: a defense using the accused’s procedural rights with great skill, a prosecution worn down by time, and a court that could not keep up.

I suspect there is more to it than law following its own logic; a family restored to Malacañang is not a neutral fact for the courts. I cannot prove that it influenced the ruling, and will not pretend otherwise. But the structural explanation is actually the more disturbing one. If someone from the Palace did make a call to the high court, then there is someone to identify. But, if these outcomes followed instead from sloppy prosecution and a defense that outlasted decades of prosecutors and judges—then the next cases are bound to end the same way.

Perhaps a more telling proof of this sad reality came eight days before the reversal, and was barely reported. On June 2 the Sandiganbayan’s special division dismissed what remained of Civil Case No. 0141, the omnibus forfeiture petition the PCGG filed in December 1991, after the government manifested it would present no further evidence. Most of its personnel, the commission had told the court, were already retired. The case was not lost. It was abandoned for want of anyone left to try it. Thirty-five years ended in a seven-page resolution no one thought worth reporting.

—————-

public.lives@gmail.com