Imelda Marcos seeks dismissal of graft charges

Former First Lady and current Ilocos Norte Rep. Imelda R. Marcos is asking the Sandiganbayan Fifth Division to dismiss 10 graft charges from 26 years ago, which indicted her for having financial interests in several Swiss Foundations.

Marcos was accused of acting in conspiracy with her late husband, former President Ferdinand Marcos, in creating Swiss bank accounts for the non-government organizations and “funneling or transferring ill-gotten wealth or monies” through it. She reportedly did so from 1978 to 1984, when she was still a Batasan assemblywoman and Metro Manila governor.

These foundations are Avertina Foundation, Vibur Foundation, Maler Establishment, Trinidad Foundation, Rayby Foundation, Palmy Foundation, and Aguamina Foundation.

Marcos was slapped with violations of Section 3(h) of Republic Act 3019, which prohibits local officials from “having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.”

But in her memorandum, Marcos’s lawyer Robert Sison said that she cannot be held liable for violating the said law because “the prohibition under Section 11, Article VIII of the 1973 Constitution was deleted in the 1987 Constitution.”

The pertinent provision reads: “The President, Vice President, the Members of the Cabinet and their deputies of assistants shall not, unless otherwise provided in this Constitution... directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government.”

“The result is that it is no longer a crime under Section 3(h) of RA 3019 for a cabinet member to intervene in any matter before a government office for his pecuniary benefit,” the memorandum reads.

Even if the prohibition made by the law was not repealed, Sison said there is no evidence that proves Marcos intervened in any matter before a government office for her pecuniary benefit.

At the same time, Marcos cannot be held liable for managing a business, because “participation in the management of a business by itself does not constitute a violation of Section 3(h) of RA 3019.”

Sison reasoned that mere participation in the management of any business, without a showing of the predicate act of having a prohibited financial or pecuniary interest will not really amount to a violation of graft.

But still, even if the participation in a business is indeed punishable by law, Marcos lawyer argued that the mere opening of bank accounts does not constitute “participation in the management of a business.”

“The opening and maintenance of a bank account neither involves the setting of organizational strategy nor the coordination of the efforts of employees to accomplish the corporation’s objectives. It cannot be termed an art or science requiring the exercise of discretion, skill and interpersonal skills,” her memorandum reads.

And lastly, Sison said that a foundation is not a business. A foundation is a permanent fund established and maintained by contributions for charitable, educational or religious purposes, and there was no indication that the Swiss Foundations exercised in any commercial activity for gain or livelihood.