Gov't witness helped clear Marcos in P51-B suit

MANILA, Philippines - One of the five government witnesses helped clear former President Ferdinand Marcos and former first lady Imelda Marcos of liability in the P51-billion damage suit in connection with the operations of the so-called “Binondo Central Bank.”

The Sandiganbayan granted the demurer to evidence of the defendants.

In demurer to evidence, the defendants waive their right to present evidence, allowing the court to decide the case based on the prosecution’s evidence in the belief that the government has a weak case.

Records of the trial show that the affidavit and testimony of former police general Gerardo Flores, 62, favored the defense since he swore that no government funds went to the pockets of the Marcoses, former trade minister Roberto Ongpin and Gen. Fabian Ver.

In dismissing the case of the Office of the Solicitor General (OSG) and the Presidential Commission on Good Government (PCGG), the Sandiganbayan ruled that no evidence was presented to prove that the defendants received money by way of kickbacks, commission, gifts or percentages from the capitalists of the Binondo Central Bank.

“While it is true that defendant Ongpin directed the Binondo Central Bank to allot P70,000 a week for Task Force Luntian, this amount did not go to the pocket of defendant Ongpin but was, however, used for the ‘operations and intelligence’ work of the task force, as well as for the payment of the salaries of security guards,” read the Sandiganbayan decision.

Ongpin testified that Task Force Luntian was formed when the Binondo Central Bank was organized as a corporation in late 1983 to use market forces to stabilize the peso.

The OSG and the PCGG said the Binondo Central Bank’s operation involved the buying and selling of dollars in the black market from 1984 to 1986 through a group of financiers without prior clearance from the Central Bank and payment of fees, charges, and taxes.

The Marcoses, Ongpin, Ver, and a number of other individuals including eight Chinese businessmen who were supposedly forced to invest in the scheme allegedly enriched themselves, causing damage and injury to the government.

However, the affidavit and testimony of Flores, one of the intelligence and operations officers of Task Force Luntian, explained how funds for Task Force Luntian were used.

Flores detailed how the money for the operational and intelligence expenses of the unit was delivered to Fort Bonifacio with disbursements made with the guidance of the task force’s commander.

“There were other expenses of the Task Force which were funded by the BCB (Binondo Central Bank); like the salary of five security guards; the several months’ payments for services of assets in Hong Kong; the cost of radio communication sets, and others, which were made to appear as my disbursement, but were directly disbursed to these persons concerned,” he said.

Flores told the Sandiganbayan that he is willing to present the confidential disbursement journal to reconcile the money he received against payment made.

“I was tasked to disburse the funds based on the approved expense plans of units or individuals and guidelines of the task force commander. Disbursements were recorded in a confidential journal and were checked regularly by the task force commanders,” he said.

The Sandiganbayan ruled that the prosecution’s own witness was also able to justify the allegations that the military was used to control and force Chinese businessmen into financing the Binondo Central Bank.

“It is true that defendants Ongpin and Fabian Ver, upon authority of President Marcos, provided military personnel to act as security in the operations of the Binondo Central Bank, but what the defendants sought to protect, especially defendant Ongpin, was the interest of the government that the buying and selling of dollars be in accordance with the rate dictated by government, and only sold to businessmen and persons authorized by the government to buy,” read the Sandiganbayan decision.

Government benefited

In his affidavit, Go Pok, one of the defendants, said he was recruited to invest and participate through the use of force, coercion, and intimidation.

“The measures taken by Task Force Luntian enabled legitimate importers and businessmen to secure foreign exchange for their needs (during a time when it was) extremely difficult to obtain foreign exchange through official banking channels due to the depleted foreign exchange reserves of the Central Bank,” he said.

Go said he was arrested and confined in a military camp where he was threatened with bodily harm and placed in solitary confinement should he refuse to cooperate.

He was assured that the Binondo Central bank was being organized to stabilize foreign exchange free market rates, he added.

Go told the Sandiganbayan that the efforts of Task Force Luntian contributed to the net increase in foreign exchange reserves of the Central Bank by about $300 million pursuant to the Binondo Central Bank’s goal of forestalling an “impending disaster to the peso and to the Philippine economy.”

Go said contrary to the allegations of the OSG and the PCGG, the operation of the Binondo Central Bank “benefited plaintiff and the Filipino people.”

Demurer to evidence granted

Trial records show that almost 25 years since the P51-billion damage suit was filed in July 1987, the prosecution presented five witnesses before resting its case.

Only Ongpin presented a defense, while the rest wanted the case dismissed through demurrers to evidence.

The Sandiganbayan said the government must have mistaken burden of proof with burden of evidence which shifted during the trial.

“By asking the court to shift the burden of proof to the defendants is a reverse procedure that is contrary to the rules, for the doctrine has always been that the burden of proof is on the plaintiff to establish his case through a preponderance of evidence,” read the Sandiganbayan decision.

“Thus, to substantiate its claim for reconveyance, reversion, accounting and restitution, plaintiff ought to have shown the assets and/or properties of the defendants belonged to or was once part of the vast resources of the government which was conveyed to them as managers or trustees.

“(The OSG and the PCGG) must clearly establish the particular government funds which defendants allegedly misappropriated, stolen or plundered as well as the persons from whom these defendants received money through blackmail, extortion and bribery.”

The Sandiganbayan said the prosecution, instead of answering the demurrers to evidence, filed a motion to present more evidence and recall witnesses in an effort to strengthen its case.

“It is evident that the omnibus motion is a mere afterthought on the part of the plaintiff after it received the various demurrers to evidence and realized that the evidence it offered was inadequate to substantiate its causes of action,” read the Sandiganbayan decision.

No proof of damage to gov’t

The OSG and the PCGG asked the Sandiganbayan to order the respondents to pay the government P50 million in moral damages and P1 billion in exemplary damages, not to mention unspecified amounts for actual, temperate, and nominal damages.

However, the Sandiganbayan said nobody from among the five witnesses of the prosecution testified as to the actual damages the government had suffered.

“Neither was there a testimony or proof of how plaintiff Republic suffered damages by reason of besmirched reputation, wounded feelings, sleepless nights or any form of physical or emotional suffering that may entitle the plaintiff Republic to morale damages,” read the anti-graft court’s decision.

The Sandiganbayan said the prosecution’s lone witness on alleged ill-gotten wealth, PCGG consultant Eliseo Pitargue, only testified on alleged unexplained wealth which was “insufficient to establish that these defendants had unexplained expenditures over available sources of income.”

“How the defendants Ferdinand Marcos, Imelda Marcos, Fabian Ver, Roberto Ongpin and Vinnie James Yu ‘abused their power to enrich themselves’ by reason of the joint venture with Triad Holding Corporation, the complaint does not show,” read the anti-graft court’s decision.

“The same absence of allegation exists on how defendants Ongpin, Ver, Ferdinand Marcos, Imelda Marcos, and Arturo Pacificador earned and/or acquired ill-gotten wealth from the management and operations of the Binondo Central Bank, as well as the amount of money that they earned, and the nature and description of the properties that they acquired from their alleged earnings in the operations of the Binondo Central Bank.”

The Sandiganbayan decision was penned by Associate Justice Samuel Martires with Special Second Division chair Teresita Diaz-Baldos and Associate Justice Napoleon Inoturan concurring.