Monday, April 18, 2016

It’s a mockery of the rule of law

But ours is a culture of impunity, the rule of law be damned! Should we pause and ask: why a supposedly God-loving people be behind this travesty? How much do we wish to devalue the Filipino?

“Panama does not deserve to be singled out on an issue that plagues many countries. But we are willing to accept the responsibility for fixing it, in part because greater transparency is ultimately a continuation of reforms we have recently undertaken. The world must tackle this problem collectively and with urgency, and Panama stands ready to lead the way.” [“Don’t Blame Panama. Tax Evasion Is a Global Problem,” Juan Carlos Varela, The New York Times, 11th Apr 2016; Juan Carlos Varela is the president of Panama.]

How about that for taking responsibility? Compare it to “I cannot give what I do not have,” was the senator’s simple answer, adding that his family had followed the rulings of various courts on ill-gotten wealth.” [“LP blocking human rights claims – Marcos,” Jaime Pilapil, The Manila Times, 10th Apr 2016]

“The best defense is offense” – why be a wimp like this prime minister? “Speaking at a Conservative Party gathering in London on Saturday, Mr. Cameron said he, not his staff, was to blame for mishandling the issue over the previous four days. ‘I could have handled this better,’ he said. ‘I know there are lessons to learn, and I will learn them. And don’t blame No. 10 Downing Street or nameless advisers,’ he said, using the address of the prime minister’s office. ‘Blame me.’

The Cameron case is not about ill-gotten wealth; and the Prime Minister paid taxes on his inheritance. But because of the import of transparency he finds himself on the defensive. “Mr. Corbyn [the opposition Labour Party leader] has demanded that Mr. Cameron release his tax information dating to 2005, when he became the Conservative Party leader.

“Thousands of people demonstrated outside the gathering on Saturday, demanding that Mr. Cameron resign and mocking the Panamanian law firm at the heart of the leak, with the slogan: ‘Mossack Fonseca: Because taxes are for poor people.’” [David Cameron Releases Tax Data After Panama Papers Backlash, Steven Erlanger, The New York Times, 10th Apr 2016]

That’s how transparency is supposed to be valued. Why are we the regional laggard if not the laughingstock of the world? “Parade of ineptitude,” Ben D. Kritz, The Manila Times, 13th Apr 2016. “TUESDAY’S Senate hearing on the RCBC money-laundering scandal, the fifth installment in what is proving to be one of the more memorable teleserye ever aired in the Philippines, was a fascinating display of the sheer ineptitude of at least some of this country’s most important institutions.

“In a way, what was divulged in the hearing could be taken as evidence that the Philippines really does enjoy God’s favor, because with these sorts of people minding the store, the only thing that could possibly be preventing even bigger financial scams from happening every day is divine intervention . . . Once again it appears that the Philippines has left itself with the unpalatable choice of whether it would prefer to give the rest of the world the impression that this is a very stupid country, or a very careless one . . .”

Reality check. “I cannot give what I do not have,” says Bongbong. Consider: In the case of the Marcoses, the Swiss Federal Supreme Court has held that the seized Swiss accounts must be assumed to be of ‘an obvious illegal provenance’. Consequently, all Swiss banks are put on notice that any assets of former President Marcos, including assets of his wife or children, are to be treated as if they are the proceeds of crime. Ironically, the position is that if a Swiss bank admitted today that it had a Marcos account then this would implicate the bank in a crime under Swiss law. [“TRACKING THE PROCEEDS OF ORGANISED CRIME – THE MARCOS CASE,” Dr. David Chaikin, Barrister, NSW, Paper presented at the Transnational Crime Conference convened by the Australian Institute of Criminology in association with the Australian Federal Police and Australian Customs Service and held in Canberra, 9-10 March 2000]

[A]ll Swiss banks are put on notice that any assets of former President Marcos, including assets of his wife or children, are to be treated as if they are the proceeds of crime.” [Swiss Federal Supreme Court.] There goes the argument that the son is not the father? And what about restitution? Ours indeed is a culture of impunity – the rule of law be damned?

Do the Marcoses enjoy the best legal advice? “The Republic of the Philippines has no international judicial assistance in criminal matters treaty with Switzerland. In the Marcos case, Swiss co-operation with the Philippines was based on the 1981 Swiss Federal Law on International Legal Assistance in Criminal Matters (EIMP), the 1982 implementing ordinance (OEIMP), together with various procedural and enforcement provisions in the laws of the cantons of Switzerland. Not surprisingly a team of attorneys for the Marcos family and their corporate fronts waged a vigorously battle against the Philippine government. It is interesting to note that the Marcoses have never explained how they could fund this expensive litigation over 13 years, given that their assets in the Philippines, United States and Switzerland were frozen in the early part of 1986.” [Chaikin, op. cit.]

Indeed they’ve had the best legal advice over many years – and affordability was never an issue? They never explained how they could fund it! And they had another layer of protection – the silence of Swiss banks! Because opening their mouths could mean legal trouble for these banks.

What about advice from Philippine lawyers? Were the Marcoses dealing only with foreign lawyers? We need more Campos-like patriots to turn whistleblower? But physicians are the only ones meant to uphold the Hippocratic Oath? And up goes another wall of protection for the Marcoses beyond the political dynasty they continued to erect right under our noses?

Consider: “[Jose Yao] Campos [Chinese Filipino entrepreneur who owned the controlling interest of United Laboratories Inc.], low key and unassuming, was probably the most cooperative among the known Marcos cronies. Unlike other cronies who chose to slug it out with the post-Marcos government, Campos cooperated fully in surrendering the Marcos assets under his name. Marcos used him mainly as caretaker of those illegal assets.

“What the entire world knows after 30 years is a mere fraction, and not the entirety, of the Marcos loot. A number of their illegally acquired assets in the country have been identified.

“What has been stashed abroad remains a big question, although it has been estimated that the loot could be between $5 billion to $10 billion.

“Marcos was not content to receive huge under-the-table commissions from foreign contractors of big ticket state projects. Marcos and his cronies had set their eyes, too, on major firms long regarded as blue chips by the stock market. These included Manila Electric Company (Meralco), Philippine Long Distance Telephone Company (PLDT), and San Miguel Corporation.” [Search for Marcos' wealth: Compromising with cronies, Philip M. Lustre Jr.,, 25th Feb 2016]

“A simple method of working out whether a political leader has accumulated illicit wealth is to carry out a net worth analysis test. A person's net worth is the amount by which one's assets are greater than one's liabilities. A political leader's net worth should increase during his period of public office only to the extent that he has legitimate savings from his income and/or capital appreciation. Any increase in net worth that cannot be explained should be treated with the greatest of suspicion. Indeed, in some countries such as Hong Kong and India, any unexplained increase in wealth by a public official constitutes prima facie evidence of a criminal offence.

“Net worth analysis is a valuable investigatory tool in circumstance where there is no direct link between the political leader and the alleged illegal activity, for example, where the money had been effectively laundered. It is also useful when the target has acquired many assets, or where the records or documents showing the financial activities of the political leader are missing, destroyed or are unreliable.

“Although Ferdinand Marcos was barred by law from practicing his law profession during his entire 20 years as President, he claimed that his legal fees represented ‘receivables from prior years’. When Ferdinand and Imelda Marcos became the First Couple in 1965, their net worth was only Pesos ("P") 120,000, i.e. US$7,000. When they were thrown out of the Philippines in 1986, their estimated assets amounted to more than $5 billion.

“The Marcoses used every laundering scheme that was available to conceal their investments. At the same time his Swiss banks offered him various instruments of bank secrecy to protect his interests, such as numbered accounts, Liechtenstein foundations and attorneys with professional secrecy obligations.

“The Liechtenstein foundations provided a hub of secrecy of the Marcos's Swiss accounts. Of the 16 foundations that were documented only five survived. There was a pattern of money laundering whereby the names of foundations were changed, large sums of money were then transferred from the existing foundations to newly established foundations, and finally the old foundations were liquidated.

“Super secrecy was facilitated in Switzerland by the use of lawyers or notaries in setting up Swiss bank accounts.” [Chaikin, op. cit.]

Do they make the Cameron issue look like “loose change”? Yet the fact that he benefited from something that doesn’t pass the smell test compels Cameron to explain.

But not in the Philippines? While in Panama, “[W]e are willing to accept the responsibility for fixing it, in part because greater transparency is ultimately a continuation of reforms we have recently undertaken.”

“Why independence, if the slaves of today will be the tyrants of tomorrow? And that they will be such is not to be doubted, for he who submits to tyranny loves it.” [We are ruled by Rizal’s ‘tyrants of tomorrow,’ Editorial, The Manila Times, 29th Dec 2015]

“As a major component for the education and reorientation of our people, mainstream media – their reporters, writers, photographers, columnists and editors – have an obligation to this country . . .” [Era of documented irrelevance: Mainstream media, critics and protesters, Homobono A. Adaza, The Manila Times, 25th Nov 2015]

“Development [is informed by a people’s] worldview, cognitive capacity, values, moral development, self-identity, spirituality, and leadership . . .” [Frederic Laloux, Reinventing organizations, Nelson Parker, 2014]

No comments:

Post a Comment