More ques­tions on Imelda’s con­vic­tion

Philippine Daily Inquirer - - OPINION - ARTEMIO V. PANGANIBAN

Why was Imelda granted bail de­spite the con­flict­ing rea­sons for her ab­sence dur­ing the pro­mul­ga­tion of the judg­ment con­vict­ing her? Why did she with­draw her mo­tion for re­con­sid­er­a­tion in the Sandi­gan­bayan (SBN) and ap­peal di­rectly to the Supreme Court?

On the first ques­tion, in her “Mo­tion for Leave of Court to Avail of Post-Con­vic­tion Reme­dies,” Imelda jus­ti­fied her ab­sence “solely be­cause she was in­dis­posed,” at­tach­ing thereto a med­i­cal cer­tifi­cate at­test­ing she was suf­fer­ing from “mul­ti­ple or­gan fail­ure.”

How­ever, dur­ing the hear­ing on the said mo­tion, she tes­ti­fied that her lawyer, who was also al­legedly sick, failed to ad­vise her of the sched­uled pro­mul­ga­tion. Nonethe­less, had she known of it, she would have at­tended, even if sick, “as it was never her in­ten­tion to dis­obey the di­rec­tives of the Court.”

Last Nov. 28, the SBN Fifth Divi­sion unan­i­mously held that though there were “in­con­sis­ten­cies in her rea­sons,” her fore­go­ing “state­ments in­vite le­niency… con­sid­er­ing that in the process, Ms. Mar­cos sur­ren­dered and placed her­self within the reach and arm of the law.”

In my hum­ble view, had the SBN re­jected her rea­sons,

Imelda, per Vil­larin vs Peo­ple (Jan. 31, 2011), would have lost her post-con­vic­tion reme­dies; that is, her pend­ing mo­tion for re­con­sid­er­a­tion would have been ipso facto de­nied and her ap­peal to the Supreme Court sum­mar­ily dis­missed. Thus, she would have been jailed pronto.

How­ever, hav­ing ac­cepted her rea­sons, the SBN al­lowed her to post a cash bail of P300,000 which is dou­ble the orig­i­nal P150,000 ear­lier re­quired of her, per my col­umn on Nov. 25 ti­tled “Imelda con­victed, but why only now?”

To jus­tify the grant of bail, the anti­graft court, cit­ing En­rile vs Sandi­gan­bayan (Aug. 18, 2015), took “into ac­count pri­mar­ily the fact that she is of ad­vanced age and for health rea­sons.” Penned by now CJ Lu­cas P. Ber­samin, this 2015 En­rile de­ci­sion is the pre­vail­ing ju­rispru­dence that all courts are bound to fol­low.

More sig­nif­i­cantly for Imelda, the SBN al­lowed her to with­draw her pend­ing mo­tion for re­con­sid­er­a­tion and ac­cepted her no­tice of ap­peal to the Supreme Court, both of which, to re­peat, would not have been granted had the SBN re­jected her rea­sons for her ab­sence.

On the se­cond ques­tion,

I am not privy on why Imelda’s lawyers with­drew her mo­tion for re­con­sid­er­a­tion. I can only sur­mise that af­ter ex­am­in­ing the SBN’s ably-writ­ten de­ci­sion, they prob­a­bly thought it was not pos­si­ble to get a re­ver­sal of their client’s con­vic­tion or a re­duc­tion of the penal­ties im­posed.

Worse, if the SBN found the mo­tion to be pro forma, in the sense that it raised no new ar­gu­ments, the anti­graft court may deny it out­right and bar her no­tice of ap­peal to the Supreme Court. In which case, the de­ci­sion would be­come fi­nal and en­force­able.

By im­me­di­ately ap­peal­ing to the Supreme Court, Imelda’s lawyers avoided the afore­said risk of los­ing their client’s re­course to the high court. True, the Supreme Court, as a rule, does not re­view the fac­tual find­ings of the SBN (and other lower courts). But equally true, the Court en banc can ini­ti­ate new doc­trines or re­verse/mod­ify ex­ist­ing ju­rispru­dence that could lead to Imelda’s ac­quit­tal.

A good ex­am­ple is Ar­royo vs Sandi­gan­bayan (July 19, 2016), in which the pe­ti­tioner was ac­quit­ted, among other rea­sons, be­cause the Supreme Court ruled, for the first time, that in a pros­e­cu­tion for plun­der, the “main plun­derer” must be iden­ti­fied in the in­for­ma­tion and proven dur­ing the trial be­fore any al­leged co­con­spir­a­tor can be con­victed. Again, this novel rul­ing was penned also by CJ Ber­samin and is now a bind­ing ju­rispru­dence in plun­der cases.

So, the lawyers’ strat­egy may not be so much to con­test the fac­tual find­ings of the SBN as to per­suade the Supreme Court to forge a new doc­trine to ac­quit their high-pro­file client, as Estelito P. Men­doza did in the case of for­mer pres­i­dent Glo­ria Ma­ca­pa­gal Ar­royo.

Fi­nally, by go­ing straight to the Supreme Court, the lawyers may be hop­ing for a speed­ier way to fi­nally put an end to these con­sol­i­dated cases, the first five of which be­gan 27 years ago.

———— Com­ments to chiefjus­ti­cepan­gani­[email protected]­

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