PCGG, OSG urged to go after heirs of Marcos crony Disini

WHITE ELEPHANT The mothballed and graft-tainted Bataan Nuclear Power Plant in Morong, Bataan, as photographed in September 2016. —INQUIRER FILE PHOTO

MANILA, Philippines — The Presidential Commission on Good Government (PCGG) and the Office of the Solicitor General (OSG) should go after the heirs of Ferdinand Marcos’ associate Herminio Disini, who illegally profited from the mothballed Bataan Nuclear Power Plant (BNPP).

The call was made by lawyer Ruben Carranza, PCGG commissioner from 2001 to 2004, who said civil cases such as the one that the agency filed at the Sandiganbayan against Disini in 1987 “survive beyond the lives” of those found guilty by the antigraft court.

Carranza said the government could still go after Disini’s children and other progeny who “would continue to be liable for the corruption committed” by the one found guilty.

In 2004, after posting bail of P54,000 on a warrant of arrest issued by the Sandiganbayan, Disini flew to Austria where he reportedly bought a castle and a noble title. He eventually returned to the Philippines and died in 2014 at age 78.

The Supreme Court on June 15 announced a vote of 12-0 with two inhibitions to partially grant Disini’s petition questioning the Sandiganbayan’s 2012 order for him to return almost P2.4 billion in commissions earned “with interest, until fully paid” for facilitating the award of the anomalous BNPP contract to Westinghouse Electrical Corp.

But the high court directed Disini to settle only P1 billion in temperate damages and P1 million in exemplary damages, citing the Sandiganbayan’s “lack of basis” to “account and convey” the money that Disini had received as conduit.

Carranza, now a senior staff member of the New York-based International Center for Transitional Justice, said “the Disini estate should now be liable” for the damages as some of the heirs are living in the Philippines.

“The case remains relevant after death—that is the idea of a civil case. Those cases [filed in the Sandiganbayan] survive beyond the lives of the corrupt dictator and his cronies,” Carranza said in a phone interview on June 18 from New York.

‘Used his influence’

In its 2012 decision, the Sandiganbayan said Disini, founder of the Herdis Group Inc. (HGI), “used his influence and close relationship” with then President Marcos “to obtain and amass large amounts of money, which he subsequently stored in various accounts.”

The antigraft court noted the testimony of witnesses who established that Disini and Marcos were golf buddies and relatives by affinity, Disini’s wife Paciencia Escolin being a cousin of then first lady Imelda Marcos.

It said that Disini used his ties with Marcos to secure the BNPP contract for Westinghouse Corp. and Burns and Roe, and received commissions in return, and cited witnesses’ accounts that Marcos agreed to have Disini act as exclusive agent for the two companies in the BNPP transaction.

“The Westinghouse contract was a very lucrative deal not to catch the attention of the President, and given Disini’s special position in the Marcos circle of associates, it would not be stretching one’s imagination too much to assume that they hoped to profit from the deal,” the antigraft court said in 2012.

Nevertheless, the Sandiganbayan said it found no evidence to back allegations that Marcos ordered the massive withdrawal of assets from the National Treasury, the Central Bank and other institutions; that Marcos and Disini embezzled government funds for personal benefit; and that Disini acted as a dummy for the Marcoses in controlling several corporations.

Ill-gotten assets

It also said it found “no preponderant evidence” that Ferdinand and Imelda Marcos received commissions from the BNPP project.

Carranza was among the PCGG officials assigned to pursue the cases against Disini as well as those against the late Eduardo “Danding” Cojuangco Jr.

Their investigation established Disini’s involvement “in land transfers that presumably involved his and Marcos’ ill-gotten assets,” Carranza recalled. “And it was difficult to go after the assets abroad because they were not frozen immediately.”

Then Ombudsman Aniano Desierto thrice dismissed the charges filed by the PCGG against Disini in 1997 for supposed lack of factual and legal basis. This forced the PCGG to raise the case to the Supreme Court in 2003.

In 2007, the high court upheld the PCGG petition and ordered the filing of graft and bribery charges against Disini.

Said Carranza: “What the OSG and the PCGG should now do [is] levy on the assets of the heirs of Disini. If his estate has already been distributed, inheritances already given, then go after whatever his children, grandchildren and even the great grandchildren received. They would continue to be liable for the corruption committed by the parent or grandparent.”

“That castle in Austria is his equivalent to Imelda’s shoes,” Carranza said, referring to the former first lady’s famous collection of footwear.

The 1987 Constitution states that “the filing of ill-gotten cases is not under a deadline,” according to Carranza. “A provision was included precisely because of the record [left by] the Marcos dictatorship. [The framers] anticipated it is going to be difficult to go after ill-gotten assets, especially of families found so wealthy and powerful that theirs would be difficult to recover.”

No bribery without briber

Although he has yet to read the Supreme Court’s full decision—the tribunal having made its announcement only on its website—Carranza wondered why it faulted the Sandiganbayan for relying on a photocopied document “purportedly show[ing] that Disini received $50 million in commissions.”

“The important aspect is that witnesses testified that the Marcoses, the Disinis, [and] Westinghouse committed corruptions. All testimonies were indispensable since there could be no bribery without a briber and an accepter. And all these could not have taken place if there was no dictatorship,” he said.

In a subsequent message, Carranza cited an Inquirer report that named HGI president Rodolfo Jacob, vice president Angelo Manahan and Westinghouse representative Jesus Vergara among the witnesses presented by government prosecutors against Disini.

In the civil case, the antigraft court noted how Vergara explained Disini’s involvement in the BNPP project. He and the two other witnesses also revealed what they knew about Disini’s closeness to Marcos.

Jacob and Manahan were also among the respondents, along with Disini and other HGI officers, in a graft complaint filed by the PCGG.

In a Facebook entry posted on Saturday, Carranza said Disini’s death in 2014 “meant the (separate) criminal cases against him would be dismissed.”

“Which is why one of the lessons here too is to not rely on criminal cases to recover ill-gotten wealth. Punishing plunderers is good. But getting back the money they stole is arguably better,” he said.

Carranza suggested that the Supreme Court “take judicial notice” of the “violent and repressive” atmosphere that prevailed during the Marcos dictatorship, when the transaction took place.

“There were witnesses who testified, including two from the Herdis Group, how this transaction happened… about the bribery, corruption and involvement of Marcos, Disini, their representatives and Westinghouse officials. The witnesses asked for immunity so they would not be charged.” Carranza said.

The BNPP, completed in 1984 on an earthquake-prone site at the cost of $2.3 billion, has never been operated. Inspection after Marcos’ ouster in 1986 showed numerous safety defects.

The foreign debt incurred in building it was fully paid only in 2007. “On average, from 1987 to 2007, the Philippine government paid $246,000 a day for the project,” Norman Abjorensen, a visiting professor at the Ateneo de Manila University, wrote in November 2017.

The Inquirer sent several emails to the PCGG requesting a statement on the Supreme Court’s June 15 decision.

The PCGG’s information section emailed that it would “first coordinate with the OSG to determine the best course of action in enforcing the award in favor of the government.”

Shortly after the Sandiganbayan decision in 2012 was announced, the OSG filed a motion for partial reconsideration asking the court to also order Marcos to return the ill-gotten commissions that he, in conspiracy with Disini, allegedly obtained from the BNPP project.

The OSG at that time asserted that the government was entitled to actual or compensatory damages, and the return of the money that the government had spent to build the power plant.

It maintained that Marcos would not have gotten into the deals with Disini if there were nothing in it for him. INQ