Dec. 4, 2009: a day to remember
DEC. 4, 2009 MAY BE REMEMBERED IN OUR history books as the day martial law was declared in Maguindanao, although there was neither legal nor factual basis for finding that a rebellion was going on there—another black mark on the executive branch. But Dec. 4, 2009 should be remembered as the day the Supreme Court of the Philippines played the role it is tasked to play (something it does not often do so, alas), and played it magnificently: as the “ultimate guardian of the public interest, the last bulwark against those who seek to plunder the public coffer.” Then, we should also remember Dec. 4 as a day that proved that one man can make a difference.
The case GR 180428 is, as the decision’s (8-4-2) ponente, Associate Justice Antonio Carpio, writes in the prologue, “an anatomy of a P6.185-billion pillage of the public coffers that ranks among one of the most brazen and hideous in the history of this country. This case answers the questions why our Government perennially runs out of funds to provide basic services to our people, why the great masses of the Filipino people wallow in poverty, and why a very select few amass unimaginable wealth at the expense of the Filipino people.”
I invite the reader to read the extremely well-written decision. I guarantee that you will not be bored.
The case was case filed in the Supreme Court by Louie Sison (the man who made a difference) against Philippine National Construction Corp. (PNCC) and Radstock Securities Ltd.
The bare essentials of the case are as follows: The board of PNCC—yes, the tollway operator—passed a resolution in October 2000 (during the Estrada administration) confirming its obligations, exclusive of interest and other charges, of P36.1 billion to the Philippine government and P10.7 billion to Marubeni Corp.
That seems innocuous enough—except that for the previous 20 years, the PNCC board had refused to admit any liability to Marubeni. What’s more it did so on the basis of a legal opinion (that the members did not even bother to read) rendered by a private law firm (the PNCC is a government corporation, and its lawyer is the Office of the Government Corporate Counsel or OGCC), at the request of the Asset Privatization Trust (APT), whose chief executive trustee, Renato Valdecantos, was chair of the PNCC.
Just like that: without any of the board (other than the two from APT) “seeing, reading or discussing” the private legal opinion, much less seeking a second opinion, the PNCC board took on a P10.7 billion liability.
Three months later, Marubeni sold its rights to Radstock for $2 million (roughly P100 million)—or for less than 1 percent of the value of the PNCC-recognized obligation. Radstock immediately (also in January) filed a collection case with the Regional Trial Court.
Louie Sison entered PNCC as chair in April 2001, and when the matter was brought to his attention, he and his board unanimously reversed the October 2000 resolution. But by then it was too late. Apparently, the wheels of justice were turning exceedingly fast. Also, they were turning consistently against PNCC and in favor of Radstock. The RTC ruled in Radstock’s favor, granting the amount of about P12 billion (including interest), and every single motion or appeal brought by PNCC and its lawyers was denied, all along the way.
While the case was pending in the Court of Appeals, Radstock and PNCC reached a compromise agreement supposedly for one-half the amount that the RTC had awarded to Radstock. This agreement was approved by the OGCC, at the time under Agnes Devanadera, in spite of the fact that the previous OGCC position was that PNCC had a meritorious case. And in spite of the fact that, as the high court found, “the agreement would in fact strip PNCC of its assets, leaving virtually nothing for the National Government.”
Reading the Supreme Court decision, it seems that a piece of financial legerdemain was executed to justify the compromise agreement and to make it appear that Radstock was PNCCs biggest creditor: The P36 billion debt to the government magically was reduced to P5 billion, although no payments had been made to it, and thus was dwarfed by the Radstock claim. Another strange occurrence that added to the indecent speed of the wheels of injustice and the consistent denials of motions opposing the Radstock claim and the compromise agreement: the Commission on Audit, when asked by the Court, also gave its imprimatur to the agreement.
But the Court wasn’t buying any of that crap. It declared that the acts of the PNCC board in expressing liability for the Marubeni loans and in entering into the compromise agreement with Radstock, constitute “evident bad faith and gross inexcusable negligence, amounting to fraud”; the Court declared them inexistent and void ab initio and gave short shrift to the arguments in the dissenting opinion. Great job.
Without that intervention, and the intervention of a man like Louie Sison who fought the case all the way to the Supreme Court even if he had no financial interest except a few shares of stock in PNCC, the government and the Filipino people would have lost P18 billion.
May his tribe increase. And may we have more decisions that prove that indeed, the Supreme Court is “the ultimate guardian of the public interest, the last bulwark against those who seek to plunder the public coffers,” and “cannot, and must never, bring itself down to the level of legitimizer of violations of the Constitution, existing laws or public policy.” Amen.
http://opinion.inquirer.net