Franklin I. Cueto*

     "Wherefore, her motion for reconsideration is granted, lmelda Marcos is acquitted." This was the decision released by the Supreme Court en banc, overturning Imelda Marcos' conviction for graft and corruption by the Sandiganbayan in 1993. On the justification of the legal arguments put forward by the majority and dissenting opinion, two perspectives dominated public opinion, to wit:

Perspective A: Marcos bashers insist on judicial statesmanship for what could have been the sequel of the Korean Court saga and
Perspective B: Marcos species articulate the point that punish-ment should not be determined merely on the infamy of the litigant.

     The question of whom among the Justices who voted for Marcos' acquittal is beside the point. The Supreme Court has spoken and its decision must be respected. What is at issue now, at least to the writer's point of view, is how to eliminate the conflict between the perspectives in order to demonstrate that the Philippine Judicial System is a citadel of justice, due process and rule of law, and at the same time, capable of sending to jail the high and the mighty. To accomplish this, please allow the writer to present the facts of the case and formulate an objective analysis of the arguments compounded and the legal basis used thereon.

Criminal Case No. 17450
     On or about June 8, 1984, Mrs. Marcos and her co-accused Jose P. Dans, allegedly took advantage of their positions as Chairperson and Vice-Chairman of Light rail Transit Authority (LRTA) respectively, when they entered into a lease covering LRTA property with the Philippine General Hospital Foundation. The contract was signed by Dans in his capacity as LRTA Vice-Chairman and Mrs. Marcos in her authority as PGHF Chairperson. The land was leased for P102,000 a month and a bare three weeks from the date of the deal, it was subleased to Transnational Con-struction Corporation for P734,000 a month. They were cited for violating Sec. 3 (g) of R.A. 3019 as amended, or the Anti-Graft and Corrupt Practices Act, to wit: 'Entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby."

     Originally, 5 criminal cases were brought before the Sandiganbayan's First Division, 3 of which both accused were acquitted and the remaining 2 were brought to the Supreme Court's Third Division. In January of this year, the Supreme Court acquitted Dans on both cases, while it acquitted Mrs. Marcos on one charge but upheld her conviction on criminal case no. 17450. In her motion for reconsideration, Mrs. Marcos asked that her case be deliberated by the full court. The petition was granted and in October of this year, the tribunal acquitted Marcos.

Division to En banc      The circumstance that the case was referred to en banc is in itself controversial by the rule that when the division decides, it decides for the full court. Under section 4(3), Article VIII of the 1987 Constitution, a decision or resolution of a Division when concurred in by a majority of its Members who actually took part in the deliberations on the issues in a case and voted thereon, and in no case without the concurrence of at least three of such members, is a decision or resolution of the Supreme Court. And under Supreme Court Circular No. 2-89, the Court en banc is not an Appellate Court to which decisions or resolutions of a Division may be appealed. The rule is not absolute however such that an en bane's review of a division's decision is allowed in eases that must be specifically decided en bane, like a death sentence or a challenge to a law on constitutional grounds.

     In regard to this issue, referral may be made to paragraph (f) of the Supreme Court Resolution dated February 23,1984 in Bar Matter No. 209 and under 4(a) of Supreme Court Circular No. 2-89, which provides that eases assigned to a division including motions for reconsideration may be referred to the bane when in the opinion of at least three members, such referral merits the attention of the Court en bane and are acceptable by a majority vote of the actual membership of the Court en bane. The writer believes the elements referred to in the above rule can be applied to the disputed case since in an article written in the Philippine Free Press dated October 24,1998, it was disclosed there that Justice Artemio Panganiban, one of the five Justices who voted for conviction, "bowed to the referral of the Division's decision to the full court in view of the unanimous request of all the four incumbent members of the third Division" and the unanimous acceptance by the full court.

     Moreover, Marcos' counsel Estelito Mendoza defended the Supreme Court's decision to hear the ease en bane considering the fact that two of the original members of the third division which previously voted to acquit Marcos were no longer connected with the Division at the time the motion for reconsideration was being heard. Mendoza pointed out that "It would have been unfair to Mrs. Marcos to convince two new Justices because even if we would have convinced them, the result would be just about the same for her conviction that's why the en bane was necessary." Upholding the perspective providing for the protection of the endangered iron butterfly, was the rule of law and due process observed? Or, in cognition of the other side of the opinion, was there a double standard of justice?

Justification for Marcos' acquittal
     In a 23-page decision written by Justice Fidel P. Purisima, the Supreme Court said that the prosecution failed to prove Mrs. Marcos' guilt beyond reasonable doubt.
Under the Anti-Graft and Corrupt Practices Act, it is enough to prove the following:

(1) That the accused is a public officer. The defense argued that when Mrs. Marcos signed the lease. It was in her capacity as chairman of PGHF, a private organization. She did not sign the contract as a public officer because she represented PGHF and therefore, she could not be charged for violating the Anti-Graft law, which applies to public officers and employees.

(2) That the accused entered into a contract or transaction on behalf of the government. Mrs. Marcos, although ex-officio chairman of the LRTA at the time, was not shown by evidence to have been present when the LRTA Board authorized and approved the lease that led to the graft charges. Justice Panganiban, on this instance, noted that 'it is simply inconceivable that the LRTA board would authorize the contract without her approval" considering that Mrs. Marcos was the Minister of Human Settle-ments, the Governor of Metro Manila, the Chairperson of the LRTA, and the First Lady of the Republic. "To hold it otherwise is to be blind to the obvious." In due respect to the Honorable Justice, the writer is of the opinion that such contention is non sequitur. Furthermore, anything that is obvious may not necessarily constitute an admissible proof beyond reasonable doubt and no amount of trivialities justifies the ruling in an opposed way. On this account, was the rule of law objectively applied?

In addition, Mrs. Marcos' non-signing for the LRTA was used as a basis for her non-participation with the government contract. In putting much emphasis to the element of direct signing", Justice Panganiban further commented that the high court's decision rendered the anti-graft law "toothless" as it focused entirely on the word "signing" and not on the term "entering" as what was provided in the law. Former Senate President Jovito Salonga on the other hand, said that "why should her non-signing be used as a reason to acquit her? In Corporation law, we call this condemnable practice of being on both sides of the transaction 'self-dealing'. The author cannot see how it could be used by the majority to make her appear innocent of any wrong!" Sec. 32 of the Corporation Code provides that "A contract of the corporation with one or more of its directors or trustees or officers is voidable, at the option of such corporation, unless all the following conditions are present x x x 4. That in the ease of an officer, the contract with the officer has been previously authorized by the Board of Directors." So, do the terms "blind and toothless" bolster the other side of the notion? Or should we stick further to the rhetoric fame of citadel of justice?

(3) And that such contract or transaction is grossly and manifestly disadvantageous to the government. The Court said that the prose-cution failed to prove that the rental rate of P102,000 was manifestly and grossly disadvantageous to the government, because it was not able to establish the fact that the rental price is way too low as compared to other lease contracts covering properties within the vicinity, there being no single lease contract that was presented as evidence'. Justice Josue Bellosillo wrote in his concurring opinion that "how can a mere disparity in the amount of the lease rental -- P102,000 as compared to P734,000 --be the sole raison d'Ítre for convicting an accused?" Justice Santiago Kapunan on the other hand said "I feel quite uneasy with the method used by the prosecution in determining that the government was grossly disadvantaged in the lease agreement, by simply comparing the rental in the lease agreement and that in the sublease contract." For this, the writer would have to accede. Indeed, the press predicated their writings on the mere circumstance that the property leased to PGHF was subleased to TCC at an amount six times higher than the LRTA lease rate. Considering the different circumstances as well as the parties involved, cannot it be argued that the lease rental is fair and reasonable and the sublease rental as too high? The high court said that "all things viewed in proper perspectives, it is decisively clear that there is a glaring absence of substantiation that the lease agreement controversy is grossly and manifestly disadvantageous to the government, as theorized upon by the prosecution". The question now is, how did the lawyers of the government proved such guilt. They were not able to prove anything that's why Mrs. Marcos was acquitted. Hypothesis: Judiciary's incapability to incarcerate the high and the mighty is due to the Executive Department's incompetence!

Substantive and Procedural Due Process
     The Supreme Court held that the Sandiganbayan violated Mrs. Marcos' right to due process, both substantive and procedural. The errors violated are:

(1) On the circumstance that Mrs. Marcos' case was deliberated in a Quezon City Restaurant -- Violation of the rule that required that all sessions and deliberations of cases be held at the Sandi-ganbayan offices in Manila; Violation of the rule which does not allow unscheduled discussion of eases; and Violation of the rule that prohibits informal discussion of eases.

(2) On the circumstance that there was a Justice present -- Jus-tice Hermosisima -- who was not a member of the division han-dling the ease: Violation of the rule that prohibits the presence of a non-member of the division handling the case during deliberation.

(3) On the circumstance that the case was deliberated in the absence of Justice Augusto Amores and Justice Cipriano del Rosario -- both members of the special division to handle Mrs. Marcos' ease: Violation of the rule that prohibits the exclusion of a member of a division, whether regular or special in the deliberation of oases. The writer will concentrate the discussion on this third violation, it being considered fatal to the validity of the Sandigan-bayan's decision.

Vested right to be heard
The eases against Mrs. Marcos and Dans were assigned to the Sandi-ganbayan division composed of Presiding Justice Francis Garchitorena, Justice Jose Balajadia and Justice Narciso Atienza. When the three Justices failed to arrive at a unanimous decision, a special division was created following the Sandiganbayan rule that requires a majority of three Justices to either convict or acquit, thereby adding Justices Augusto Amores and Cipriano del Rosario. However, the special division was unilaterally dissolved by Justice Garchitorena after the three Justices of the first division unanimously agreed to convict Mrs. Marcos during the deliberation held in the Quezon City restaurant (during which the added Justices were not present).

     On the dissolution of the special division, Justice Flerida Ruth Romero said that a special division in the Sandiganbayan cannot be stripped of jurisdiction once it is vested with the same. Secondly, there is no rule authorizing or disauthorizing a chairman of a division from dissolving a special division once it has effectively become functus officion. And lastly, by analogy in appellate courts such as the Court of Appeals. rules are fixed and practices have been established. In the Supreme Court however, there are no rules regarding the dissolution of special divisions and therefore, there is nothing against which the alleged procedural irregularities can be measured.

     On the other hand, Justice Purisima argued that "Mrs. Marcos had a vested right to be heard by the special division. Had the case been deliberated upon by the five-man special division, the case could have turned differently." Indeed, there is the possibility that Mrs. Marcos could have been acquitted while the case is still with the Sandiganbayan Rule of law as against vested right to be heard, which is which? Is the right to be heard paramount to the application of the rule of law? The writer believes that the right to be heard must be afforded, regardless of the fame or infamy of the litigant. Fundamentally, this is also the rule of law.

Criminal Cases Nos. 17451 and 17452
     Former Senate President Jovito Salonga said that the wrong case was used as the basis to acquit Mrs. Marcos. When the special division was created and later dissolved, the eases involved were criminal cases no. 17451 and 17452. These are the cases where the alleged procedural errors were committed. The ease that was appealed to the Supreme Court on the other hand, is criminal case ho. 17450, which did not in any way involve the special division issue. According to Salonga, "the majority magnified a supposed error where there are no errors at all." Wrong case?

Conflicting standpoints here and there, untarnished clothe of justice is there left to wear? As the unsuspecting public exercised their freedom to condemn and criticize, only few dared to comment objectively in support of what is fair and what is not, and what the people should know to strengthen the rule of law. According to Justice Panganiban, by the Supreme Court's decision, the Philippine Judiciary will be evaluated by the nation and by the world. History will judge the court. The writer agrees, but on a different viewpoint. To borrow the words of lsagani Cruz: "The need is for judges like Lord Coke who, in answer to the intimidation and importunings of his monarch, intoned the ringing words: 'I will do what becomes me as a Judge.' There can be no other alternative if our ideal is, as it should always be, the preservation of a free society under the aegis of just and humane laws applied without fear or favor."

     Finally, to castigate the eight Justices who voted for Marcos' acquittal is deplorable. Suppose that Mrs. Marcos was convicted instead of acquit-ted, would the question on the integrity of the Justices be an issue at all? More importantly, we should all respect the decision of the Supreme Court for no matter how close the people are in putting Marcos to jail, the fact is, Marcos' guilt was not proven beyond reasonable doubt. No matter how conspicuous the disapproving opinions are, the fact is, they are mere opinions. Only one deserves the jurisprudence --- that of the Supreme Court. Indeed, our judiciary can be remarkably dauntless in its means of facing the outraged public, to prove that the system is a citadel of justice, due process and rule of law. As a matter of opinion, it just did. However, the court is yet to prove its capability to send to jail the high and the mighty, not because it failed to send Marcos to prison but because the lawyers of the government are yet to master .enough skill to prosecute the mighty.


* BSA (San Beda College) C.P.A.; LI.B. Class 2001; Editor-in-Chief, UB Law Journal.