To Manila and back...

to Manila again this week. I spent 3 weeks in Manila near the end of February and up to the middle of March, and that included speaking at a conference on Impunity and Press Freedom in the Philippines co-organized by the Center for Media and Press Freedom (CMFR) and the Southeast Asia Press Alliance (SEAPA), with funding from the Open Society Institute's Justice Initiative.

One thing that made me happy I went to the conference was the presence of many radio and print journalists from outside Metro Manila. This was important, if not essential in discussing impunity and the victimization of Filipino press workers. The disproportionate number of "provincial" journalists (those quotation marks should tell you that I am as sensitive as any Cebuano/a and other probinsiyano/a is about how "provincial" is often used to imply some kind of inferiority) among the victims of extrajudicial killings from 2000 onward is disturbing. More than half of the press workers killed since 2000, it is said, worked outside Manila. Most of them were working in radio stations. It indicates that -- the NDF's effort to conflate these deaths with the military's targeting of the NDF-sympathetic Left notwithstanding -- life is more dangerous outside Metro Manila for press workers, for most full-time journalists, certainly, but apparently more so for so-called radio blocktimers. A Manila Times special report I think correctly attributes part of this disproportionate targeting of broadcasters outside Manila to the confrontation between the undying feudal values of political dynasties, warlords and politicians in the provinces and the impact (the report describes it as "modernizing," but I think it is more of a democratizing effect) that industrialization and the infrastucture that it brings -- more radio stations, more powerful broadcast signals, on-line newspapers, cellphones! -- has on the distribution of political power. A mouthful, that, but among the provincial --in that sort-of-good, Cebuano-centric way -- journalists that I was happy to see again in the conference were Sunstar Daily's Cheking Seares, ABS-CBN Cebu's Leo Lastimosa and of course, that institution of Philippine journalism named Johnny Mercado.

More to come...have to run to the airport!

(And before I forget: here's what I said at the conference. Or at least the summary of it.)

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Threesome

So I was busy and will be traveling for work again soon; but I did make time to for what I have to say about three plots a-thickening: (1) an anti-Salonga smear plot that wants to smear itself ahead of smearing Salonga, (2) a military-fed, media-consumed coup plot that reinforces that non-adage about old generals and (3) a plot that Hong Kong police suspected the Estradas would try to carry out.

Plot # 1

There’s a plot to discredit the venerable Filipino Jovito Salonga. From my experience with smear plots hatched by the same group I suspect are behind it, the anti-Salonga plot apparently consists of simply threatening to smear him, in the hope that he will go no further with what he has done so far. Which is: with the equally respected Bobby Tañada, Salonga filed an amicus brief asking the Supreme Court to reverse the Sandiganbayan’s partial judgment in Civil Case No. 33-F. The Sandiganbayan in effect declared that Danding Cojuangco paid for “his” San Miguel Corporation shares with “his own” money. Look at that: Marcos was dictator. Danding was his number one civilian crony. Marcos gave Danding absolute control over the then P1.3 billion in coconut levy funds. No one who wanted to stay healthy could say no to how Danding used the coco levy funds deposited, by Marcos decree, in Danding-controlled UCPB.

Remember the late former Vice President Emmanuel Pelaez of “what is happening to our country, General” fame? In 1982, he asked that and other questions, many of them involving the legality of the coco levy. The answer was an assassination attempt.

The plot to smear Senator Jovy Salonga is mentioned in the Manila Standard column of Alvin Capino. It then gets mentioned again, and in the same tenor and in almost the same language, in the Philippine Star column of Mary Ann Reyes. Capino and Reyes are not journalists. You’d be pretty stupid to believe any pretense at objectivity they might put up – which may be why they hardly pretend.

Reyes: “There are talks going around legal circles that some quarters are plotting to smear the reputation of former Senate President and PCGG chair Jovito Salonga.” Capino: “Among the top media circle topics in Metro Manila coffee shops over the weekend is the reported plot to malign former Senate President Jovito Salonga through a well-orchestrated smear campaign.”

Reyes: “Our sources say the plotters plan to spread rumors alleging that Salonga received huge sums of money some time in 1986 in connection with the effort to recover the Marcos wealth.” Capino: “It will reportedly revolve around a concocted story that Salonga received large sums of money, purportedly in the millions of dollars during his term as chair of the Presidential Commission on Good Government.”

Reyes: “Already, the plotters are being warned that the ruse against Salonga will definitely backfire on them.” Capino: “Whoever this powerful interest turns out to be and whatever its motive, it is warned that the smear plot on Salonga is a bad investment.”

Aw, shut up. These are veiled warnings: “We know you’re an icon, Mr. Senator, so we will smear you by insinuation instead of outright demonization.” What’s the going rate per column on these demolition jobs now? A few years ago, it was around P30,000 per hit (or was that a rate only for columns with bad puns as titles or for a casual swipe in that cock-something space that has since relocated?)

Tomorrow: Plot #2 and how Esperon’s retirement fund may be in jeopardy
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Danding pigs out in Sumilao

In a post on his blog some weeks back, Manolo Quezon asked if "a deal is looming with Danding?" Most of the 142 people who took the time to comment didn't seem interested in the answer to that (and a few were actually more interested in a flame war over the alleged cult of Ellen Tordesillas). But with the farmers from Sumilao marching into a calloused capital and demanding respect for what has always been theirs by ancestry and -- even if superflous -- by law, that question and how Cojuangco and the Arroyos will finesse this wrinkle in their otherwise profitable arrangement has come up again.

A previous separate opinion by now Chief Justice Rey Puno, might be useful to analyze should this case go up to the SC again; Puno's attitude is apparently seen by Fr. Joaquin Bernas as favorable to the farmers. But then again, what was Puno thinking when he said that "the Sumilao problem raises fundamental issues which conflict (sic) between land reform and the industrialization of the countryside?"

That the Sumilao farmers were promised and given land through land reform (during a period when the DAR had successive social-democrat-leaning officials) is indisputable.

On the other hand, is the "industrialization" that Cojuangco brings to the countryside -- Negros, Isabela and in Bukidnon -- the kind that should be given weight equal to land reform? Danding does not and has not brought in his own capital -- just as in his Marcos-era takeover of San Miguel Corporation, he relies on political access to the limited capital available in domestic markets to finance much of his expansion and basically grabs land that he need not develop himself.

He raided UCPB during the Estrada years and borrowed P4 Billion practically unsecured. This was repaid partially and grudgingly only this year, and only because the Arroyos pressured UCPB into allowing Danding to use sequestered cash dividends from equally sequestered SMC shares as payment. He uses congressman and LGU officials from his NPC such as the Dys in Isabela (and those outside, like the Zubiris) to evict land farmed by destitute farming communities and rewards these politicos with the spoils of ill-gotten wealth (for example, giving certain congressmen beer and soft drink distributionn franchises in their districts, which is almost like pork-barrell allocations, but using a publicly-listed company's assets to do it. The Macedas, for instance, own a Coca-Cola distribution franchise in Laguna.)

To cut this long story short, I answered that question thus:

Is a deal looming with Danding?” There have already been deals (and a few important no-deals, too :) between ECJ and the Arroyos.)

You might want to look at this instead as a series of deals, some of them strategic (e.g. allowing ECJ to use Kirin’s entry to regain controlling interest in SMC) and some tactical, mainly done for political expediency (e.g. post-2004, put Gilbert at DND, while ECJ distributes NPC support across the political divide). The most strategic deal has already been done, though: by allowing ECJ to control SMC (through Kirin in 2002 and later, by not objecting to the SMC capital stock rights offering in 2003) the Arroyos have allowed Danding to not only regain all of what he lost in 1986, but to then plan his exit from publicly-held SMC with more than what he had stolen under Marcos (this explains his overseas investments and corresponding divestments from the core SMC business). The Sandiganbayan ruling legitimizing “his” 20% is relatively unimportant: the same court already allowed him to sell those shares two years ago. But he has two remaining hurdles: the Supreme Court and the inevitable appeal regarding the 20% ruling AND the next President’s attitude toward him.

The SC may be more unpredictable. CJ Puno was a colleague of Estelito Mendoza at the OSG but has taken inconsistent positions in past ECJ-related cases. The presence of J. Carpio creates an opportunity to press for an outcome more consistent with the 2001 ruling.

The Presidency? Mar Roxas is in Danding’s pocket. Manny Villar will sell his soul (and the housing projects he has left uncompleted after OFWs paid him their life-savings) to ECJ (and San Miguel Properties Inc.) But then again, Danding is getting old and his children are not getting more intelligent. The 2010 election may be important, but it is the ones after that, where Danding’s apprentices Chiz and Gilbert may be prominent, that he thinks he can decisively control. Marcos is dead, and Danding will try to do what the dictator could not: come back and retake power.

If Imelda is innocent then why is my wallet missing?

I didn't realize that Robert Sison, Imelda Marcos' lawyer, actually believes in his client's innocence, until I saw that letter he sent to the Inquirer in response to something that former Justice Isagani Cruz wrote in the paper. Sison had earlier filed a motion before the Sandiganbayan invoking Imelda's right to a speedy trial. Apparently, the plunderer is concerned that she might die before she can spend all the money she stole, hence the need to ask the court to rule on her cases while the present PCGG and the family that occupies Malacanang appear willing to go along with what Frank Chavez has described as her "illusion of innocence."

So here's what the Office of the Special Prosecutor (OSP), headed by the competent and upright Dennis Villa-Ignacio can do to help Imelda get he speedy trial she wants: ask Robert Sison and his client to go with the OSP and its prosecutors to Zurich in Switzerland (and possibly Liechtenstein) . There, both sides can identify and mark for the Sandiganbayan all the documents relating to the bank accounts opened in behalf of the Marcos criminals by their Swiss agents. That's not so hard; those accounts were frozen in April 1986, were then provisionally returned to the Philippines in 1997 and finally forfeited in favor of the State by our own Supreme Court in 2003. In fact, the shameless pretension of Robert Sison and his client that they have not delayed the cases filed against them is exposed as a lie by the Supreme Court. Using the forfeiture case against the Marcoses as an example, the Court said that

"Since 1991, when the petition for forfeiture was first filed, up to the present, all respondents have offered are foxy responses like “lack of sufficient knowledge or lack of privity” or “they cannot recall because it happened a long time ago” or, as to Mrs. Marcos, “the funds were lawfully acquired.” But, whenever it suits them, they also claim ownership of 90% of the funds and allege that only 10% belongs to the Marcos estate. It has been an incredible charade from beginning to end."

Or in the harsher words of the Court when it denied the motion for reconsideration of the Marcoses in the same case:

"It would readily be apparent to a reasonable mind that respondent Marcoses have been deliberately resorting to every procedural device to delay the resolution hereof. There is justice waiting to be done. The people and the State are entitled to favorable judgment, free from vexatious, capricious and oppressive delays, the salutary objective being to restore the ownership of the Swiss deposits to the rightful owner, the Republic of the Philippines, within the shortest possible time.

The respondent Marcoses cannot deny that the delays in this case have all been made at their instance. The records can testify to this incontrovertible fact. It will be a mockery of justice to allow them to benefit from it."

So there, in that same case, the Supreme Court said that the Marcoses and their bank accounts in five 'account groups' --

(1) Azio-Verso-Vibur Foundation accounts;

(2) Xandy-Wintrop: Charis-Scolari-Valamo-Spinus- Avertina Foundation accounts;

(3) Trinidad-Rayby-Palmy Foundation accounts;

(4) Rosalys-Aguamina Foundation accounts and

(5) Maler Foundation accounts

containing around $650 Million at that time, would be forfeited. Now here is the part that should matter in the criminal cases that Imelda says she now wants resolved (yes, after over a decade of delaying them by filing all sorts of dilatory motions and pleadings, including changing her lawyer at least 5 times): the Court, in response to the criminal Imelda's 'concern' that

"the factual finding that the foundations involved in the instant forfeiture proceedings were businesses managed by her and her late husband, will adversely affect the criminal proceedings filed by the Republic against her"

said that

"the law imposes the burden of proving guilt on the prosecution beyond reasonable doubt, and the trial judge in evaluating the evidence must find that all the elements of the crime charged have been established by sufficient proof to convict."

But really, this is how it should be: there is no escaping that Imelda Marcos and her dictator-thief-liar husband were found by the Supreme Court to have conducted and managed businesses -- the so-called Swiss "foundations" are not charitable entities but businesses set up for profit and amassed huge amounts of money that were then deposited in their Swiss accounts from 1969 to 1986 (and even afterwards). This is precisely an element of the crimes they were charged with in the Sandiganbayan. Unless Imelda herself (or maybe Robert Sison, who has apparently acquired his client's predilection for "un-truthiness") goes to Switzerland, and destroys all the documents she signed as "Jane Ryan" or any of the other aliases she used, then all that is left to do is to decide whether these documents prove a crime or not. And this is Imelda's gambit. She is hoping (and of course bribing and influence-peddling) that the usual inertia of government prosecutors and Malacanang's lack of political will (or worse, the existence of a will to betray) combined will prevail. That could happen, but then again, it will take a lot of bribery and whatever political capital (and hidden ill-gotten wealth) she has left for Imelda to roll back all that has been legally established about the plunder she and her husband committed during their dictatorship.


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Imelda, Danding and Joe De Venecia: Oh what a mess

To say that the PCGG is in a mess -- and worse, mostly a mess of its own making -- is an understatement. But at the outset I must say that this post is not an argument for the abolition of the PCGG. Who will gain with its abolition? The usual suspects. Instead, this is simply a list of what I think can still be done and undone and who should be doing what to whom. If that sounds as obscene as the geriatric criminal Imelda dancing with the PCGG commissioner at what must have been his coming-out party, let's leave it at that and move on to my list of 3 things to be done/undone.

1. Slap the Marcos family with damage suits, money-laundering investigations and tax evasion cases -- and then slap them some more with hold-departure orders. The Marcoses are so greedy they won't settle for the ill-gotten wealth they have managed to keep. They now want to get back ill-gotten wealth taken away from then that has since become someone else's ill-gotten wealth. The Marcoses are re-claiming valuable real estate previously surrendered by their self-confessed crony J.Y. Campos to the PCGG. Their lawyer, Robert Sison (who at one time was ordered investigated by the Supreme Court for privately meeting with the judge handling Imelda's 'dollar smuggling' cases in Manila -- scroll down that article for the story) has filed a motion at the Sandiganbayan claiming the P18 Billion Payanig sa Pasig lot for his clients.

(That property has its own sordid story of old corruption colliding with new corruption -- this Newsbreak story sheds some light, but may not be as neutral and incisive as the magazine's editors are capable of being). How to counter this post-Marcos show of greed by the Marcoses? Claimants 1081, one of the main organizations of Marcos victims, has made its own claim to the property -- which is logical, since the Marcoses owe the victims $2 Billion in damages for the killing, torture, disappearances and abuses they inflicted on at least 10,000 Filipinos.

(Disclosure: after leaving the PCGG, I gave some pro bono advice to Claimants 1081 and that includes this option of running after the Marcoses right in the Philippines -- at the scene of the crime. I'm afraid that the American alien tort claims act (ATCA) court cases filed by the victims' US lawyers -- which did serve a powerful and symbolic purpose when they were filed -- have ran their course. The U.S. Supreme Court has agreed to hear a Philippine government petition to turn over another $35 Million in Marcos funds (the Arelma account) frozen in a Hawaii court -- which the victims also claim. But what is the PCGG doing about the still pending HR victims compensation bill in Congress? Deafening silence. It seems the PCGG Chairman is too beholden to Bert Gonzalez -- who opposes the bill just so he can make his patrons in the AFP happy -- and would rather just mumble his usual blather about nothing in particular.

(I expect that the US Supreme Court will come up with a narrow ruling on the Marcos funds case; while the amicus brief of the US Justice Department in the PCGG's favor might help bring the focus on the sovereign immunity question, the Court might not want to go that far. It could simply rule that since the main dispute involves parties and events that took place in another State, it might be more practical to see whether it can be settled there. This need not involve sovereignty, but expediency -- will the liability of the Marcoses to the victims be finally paid if the money were turned over to the Philippines? Or will the Hawaii judgment be left unenforced because that foreign government has effectively prevented accountability from being exacted? This is why legislating the Marcos victims compensation bill was and is of strategic importance-- it is the best argument for why ill-gotten Marcos funds should be returned to the Philippines. Sadly, neither Sabio or Gonzales, let alone their superior in Malacanang, have any sense of what the implications are for their witlessness. As it is, they are inviting the US Supreme Court to rule and say: Philip Alston is right, the Philippine government has no political will to deal with impunity for human rights violations, whether committed in the past or in the present.)

Aside from filing a claim over the Pasig lot, the victims (and the PCGG, really, but who has hope left that they would lift a finger?) might want to ask the Anti-Money Laundering Council (AMLC) to round up the usual suspect-banks to check how the Marcoses are financing their own ill-gotten-wealth recovery efforts. A news account 2 years ago (here's an old link that may not last) reported how "four bank bills and a savings account in the name of former First Lady Imelda Marcos were transferred to a private person without government knowledge and despite a standing injunction issued by the PCGG and the Central Bank..." Indeed. Better yet, aside from recovering PLDT shares and cash dividends against Tony Boy Cojuangco (long story, but that case wasn't 'won' by the Sabio-led commission; in fact, much of the credit should go to this man's efforts to recover what he claimed was his share in PLDT; he persisted when the PCGG itself was wavering, particularly under the Estrada administration. He lost his claim, but the evidence he gathered against Marcos -- helped the government's case significantly), there is enough reason to go after the payment -- in cash, contained in boxes - that Cojuangco is said to have paid to Imelda for her to go away and leave the PLDT case alone, after the PCGG (and it was my idea, I must admit) asked the Sandiganbayan to summon Imelda as a hostile witness, on the basis of her court-filed claim of ownership of PLDT shares. Where did the cash go? One source claimed it was paid in a city in China, then transferred to Philippine bank through an Imelda associate. Her lawyer (PECABAR's Eleazar Reyes) is said to have cashed in on it, too. The Yorac-led PCGG pressed the BIR to investigate the taxes due on these payments -- but the BIR did nothing more than accept the usual suspects' denials.

2. So, is Joe de Venecia a Marcos victim, a Marcos crony or an Arroyo-crony-turned victim? Who cares? The company he once led and which borrowed heavily from government financial institutions during the Marcos dictatorship owes the government around $700 Million that they may have already recovered from their insurance brokers through a U.S. court case. De Venecia's spokesman distracts us with the lament that JDV was in fact a Marcos victim and that Landoil still has a pending unpaid claim before the UN compensation commission that deals with companies claiming to have lost their assets during the first US-Iraq/Kuwait war. I'm not sure that's true -- this report from the UNCC actually says that Landoil's claim was rejected in 2002. More importantly, the case that Landoil filed against its insurers and insurance brokers had led to a settlement from which Landoil received money.

The 1990 New York court ruling in Landoil versus Alexander notes that the "disputes that arose between Landoil and (its) various underwriters...over the coverage of certain losses ...were settled following arbitration proceedings in London...(and) Landoil then instituted (the NY case) to recover the balance..." So far, JDV and company paid the government only P13 Million as the government's 45% share from the London arbitration proceedings. What happened to the Alexander case? It may have been settled by Landoil. JDV and his Landoil nominee, Ambrosio Collado, have not said anything about that case, where the government stands to get a 45% share of whatever Landoil collects on its $700 Million claim.

But here's the other thing about Civil Case 20 -- the PCGG's case versus Landoil and JDV: the Supreme Court has not only said that this can be revived should the compromise agreement be breached (and not giving the government its 45% share from any settlement with Alexander would be a breach), the Court has also said that the Marcoses are not part of the settlement at all. Yep. Imelda continues to be a defendant. So here's what JDV should do if he wants to make us believe in that puppy-dog-faced claim that he was a Marcos victim, too: testify against Imelda. Now. In Civil Case 20 still pending before the Sandiganbayan. By that, De Venecia can put Sabio to shame. He can make Gloria think twice about JDV's willingness to tell all against erstwhile allies. And then we make Imelda squirm with Gloria. O di ba?

3. It's not over with Danding. ...and I'm referring to the Sandiganbayan ruling declaring the 27% stock ownership in San Miguel as ill-gotten wealth while maintaining Danding's then 20% share as being "legitimate."

The litigation gamble was this: the PCGG can win the 27% share easily -- Danding had changed tack in the middle of the litigation and claimed he was not interested in that portion of the SMC shares (Why not? Another long story but suffice it to say that, with President Arroyo's backing and what Haydee Yorac thought was Mar Roxas' unseemly sponsorship of Cojuangco's agenda in the entry of Kirin Brewery into San Miguel in 2003, Cojuangco won his strategic victory long before the Sandiganbayan ruled on "his" 20 % SMC shares. I will get back to that some time.) By winning the 27% first, the PCGG's control over San Miguel would be assured (and it was for the first few months of the Yorac-led PCGG) until of course your own President betrays you and gives it to the government's adversary anyway.

On the other hand, the government's claim over the 20% was in danger of being compromised by the combined whispering of Dante Ang, Bert Gonzales (again!), Bishop Capalla and a host of Cojuangco beneficiaries in and out of the Arroyos' circle.

(Note my emphasis on the Arroyos. The husband not only hung around at Wack-Wack with Abalos and those other suspects in some other scam -- Danding's factotum Ramon Ang was another frequent flyer, whispering this and that and so getting all kinds of political and economic favors for his patron. Example: how can you continue to have a UCPB board occupied by Danding's lawyer, Danding's accountant, Danding's very own paid coconut farmer reps, and other Danding moles? The Arroyo husband is not to be outdone: he once proposed naming his, ahem, golfing partner Vivian Locsin to be UCPB Board Chair.)

Malacanang even had the audacity of proposing a Cojuangco ally -- Ernesto Maceda, the hyprocritical Mr. Expose himself-- as a PCGG nominee in San Miguel's board. The Filipino coconut farmer has no shortage of people willing to betray them in Malacanang. So what the then OSG and PCGG officials decided to do was to reduce the case involving the 20% SMC shares to a pure question of law. And it is this: if Eduardo Cojuangco was chairman of UCPB and the coco levy trust fund in 1983, and knew that control over San Miguel could be acquired by the coco levy trust fund by simply buying the 51% of SMC being offered by its largest stockholders, what's wrong if he instead bought only 31% in behalf of the coconut farmers who gave to the levy and instead bought the remaining 20% for himself? What's wrong?

First, the bank and corporation chairman has what lawyers call a "fiduciary duty" to the corporation. Our corporation law punishes disloyalty (scroll down to Section 34)! Our law says that when a board director -- like Danding at UCPB -- acquires for himself a business opportunity which should belong to the corporation, thereby obtaining profits to the prejudice of such corporation, he must account to the latter for all such profits by refunding the same...

Second and worse, guess where Danding got the approximately P400 Million needed to pay for the 20% SMC shares in 1983? Or: "is UCPB my piggy bank?" He borrowed from the bank he chaired. Not only that: the funds came from the coco levy trust fund -- which could have acquired all of the controlling stock in San Miguel at that time. Even in 1983, under Marcos, the prohibition against DOSRI loans -- lending to a bank's own directors and officers, was in effect. Of course, Marcos made it easier by exempting the coco levy fund from the rule, which made it eligible to borrow what it needed from UCPB to buy the 31% shares in SMC. But Danding? No. But in a UCPB board that included Juan Ponce-Enrile and counseled by the Edgardo Angara-led ACCRA, who would object to anything? Marcos even went overboard by issuing a decree -- just for The Boss -- that described the coco levy funds in UCPB as "not be considered or construed, under any law or regulation, special and/or fiduciary funds and do not form part of the general funds of the national government." In other words, if it is neither a trust fund subject to the fiduciary requirements of corporation law nor public funds subject to government audit, who gets to spend them as they like it?

And so it was that, decades later the Supreme Court in 2001 had to say that the coco levy funds are prima facie public in character. Now that is Danding's problem with the Sandiganbayan ruling on his 20%: if those funds are prima facie public, what does that make of the assets that were acquired by borrowing from the fund itself? Note that Danding has not denied before the court Sandiganbayan that he did not borrow funds from UCPB or from the coco levy itself (this we easily extracted from one Estelito Mendoza, whose only claim to fame as a lawyer is that he and Marcos simply made up laws to support Mendoza's defense of the dictatorship). And even if Danding argues that he borrowed from UCPB's depositors -- and not from the levy -- he runs up against those arguments on loyalty and trust above, both of which, by the way, create criminal liability? So while our friends over at the Philippine Onion are seriously concerned that we are losing our coconuts, it's not over until it's over.

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