2nd Sem

Justice to the Highest Bidder

Justice to the Highest Bidder
By Sheila S. Coronel

ABRAHAM Sarmiento did not think so. But in 1991, when he was still a justice of the Supreme Court, an attorney on his staff was invited to lunch by a former law school classmate, Danilo Gutierrez, whose father Hugo was then a member of the high tribunal.
The lunch took place at a well-known seafood restaurant, and in the course of the meal, Sarmiento's assistant was asked whether P3 million was enough to sway her boss, who had been assigned to write the decision on the Banco Filipino case. The insolvent bank had been closed by the Central Bank (CB) in 1985, and it was contesting the closure in the high court, accusing then CB Governor Jose Fernandez of wanting to take over the bank himself.
The assistant was told she would not want for anything if she helped out, but Gutierrez never made clear in whose behalf he was making the offer. Sarmiento reported the incident to the court en banc. "The Court asked Hugo to find out from his son what had really transpired," he recounted. "The son said, 'Don't believe her, she's schizophrenic.' So this was relayed to the Court."
Sarmiento inhibited himself from the case because apart from that incident, he was also a neighbor of a member of the family that owned the bank. The Court, he said, never acted on his report as his assistant refused to execute an affidavit against a former classmate.
Banco Filipino won. Among those who voted in its favor was Gutierrez who, despite the incident involving his son, did not abstain from the discussions.
In the legal community, the Banco Filipino case is considered a landmark. The stakes in this case were exceptionally high, running up to billions of pesos. It was also among the first few instances when rumors of pay-offs to Supreme Court justices began circulating in both the bar and the bench.
Although most of the discussions took place during the term of Chief Justice Marcelo Fernan, the ruling on the Banco Filipino case was released just three days after Andres Narvasa was named the country's chief magistrate.
Five-and-a-half years later, Narvasa presides over a court whose reputation has sunk to its lowest in a decade. In January, the Makati Business Club asked the country's top executives to rate the performance of government agencies. They gave the Supreme Court a rating of minus 29.8 percent, just a few notches higher than transport and worse than telephone service. Ten years ago, in the euphoria that followed Edsa, the Supreme Court topped the same survey.
The high court's fall from grace is a story of how the influence of kin and cronies, the weakness of check-and-balance mechanisms, and the fallibility of officials can erode the credibility of institutions. It reveals the porousness of the structures and procedures that govern the Court, thereby allowing approaches to justices that have undermined the confidence of the legal and business communities in the judiciary.
In the last six months, dozens of lawyers, litigants, former Supreme Court justices and insiders in the current court interviewed for this article expressed profound frustration with the country's highest tribunal. It is, they like to joke, the "best supreme court that money can buy."
They paint the picture of a powerful institution prey to equally powerful temptations: As the economy grows and the stakes involved in legal disputes are higher than ever before, litigants are willing to pay a steep price for favorable decisions.
Narvasa strongly disagrees with this perception. "We know of no instance of what might be described as a 'venal or corrupt approach' to any member of the Court," he said in a recent letter in response to journalists' queries.
True, corruption charges are difficult to prove. The approaches to justices are said to be discreet and indirect, made largely through trusted relatives and intermediaries. Moreover, the rumor mill is constantly fed by stories from litigants and an executive branch engaged in a battle of wills with the Supreme Court, which has ruled against Malacañang in landmark cases.
"I have no personal knowledge of anyone actually having been bought in the Supreme Court," said former Justice Florentino Feliciano, who retired in 1995. "When lawyers lose a case, the immediate reaction is that the judge has been bought."
But in interviews, litigants and lawyers described to us how, once high-stake cases are elevated to the Supreme Court, the parties involved maneuver behind the scenes to get access to the justices assigned in order to plead their case. While many of the justices, they said, cannot be approached or corrupted, some of them have allegedly accepted significant sums for favorable decisions.
Intermediaries—former justices, relatives of current justices, well-positioned lawyers—allegedly play a key role in these maneuvers by acting as channels for otherwise unapproachable magistrates. Our interviews have revealed the emergence of a network of brokers composed of well-connected individuals who offer to fix cases for a price.
"Some former justices and sons of justices can be retained to pursue cases," said Eduardo de los Angeles, former Philippine Stock Exchange president and senior partner in one of the country's biggest law firms, who balks at the practice. "You can tell your client or you can approach them directly yourself. Litigants continue with their lawyers and as an added facility, get some of these former justices to work incognito."
This informal network of fixers who can be approached by litigants means that while lawyers slug it out in court in big-league cases, an even more bruising battle is going on behind the scenes, as brokers try to influence justices on behalf of opposing parties. Lawyers say that the role of intermediaries is so important that often, it is a race between the parties on who gets to the most influential fixers ahead of his rival.
When former Quezon Rep. Bienvenido Marquez, for example, thought he would lose his case in the Supreme Court, he was advised by a friend, a Malacañang official whom he declined to name, to seek the help of Gregorio "Ogie" Narvasa II, a lawyer who is also the chief justice's son.
The Malacañang official claimed to be in the know about the Court, the former congressman recalled recently. "So I talked to Ogie," he recounted. "I said, whatever the terms, just tell me."
Ogie seemed interested, but two days later, said Marquez, he sent word through a common friend that he had to decline as his partner had already been hired by the congressman's rival, Quezon Governor Eduardo Rodriguez.
Asked why he decided to hire Narvasa's son, Marquez replied: "They're not good lawyers. They're just ordinary lawyers. But because his father is the chief justice, everybody approaches him."
Rodriguez apparently thought the same thing. Sources close to him say that the governor, through an intermediary, offered money so Ogie would intercede for him.
Ogie Narvasa admitted both parties approached him, but denied helping or receiving a fee from either one. It was not the first time, he said, that litigants had come to him. "All of them obviously want to win their case," he said. "They ask me what I can do. They present the problem to me. I tell them immediately, I can't do anything. I can't influence my father and I certainly cannot talk to the other justices."
"What has happened here is people have the perception that our courts can be paid," he added, "so what they do, to even the playing field, they come to see me first so that the other party cannot talk to me."
Lawyers say that the higher the stakes, the more determined the approaches to justices. When former Justice Jose C. Campos Jr. was assigned to pen the decision on the "Beer na Beer" case, he was hounded by several friends he had not seen in decades, all of them interceding on behalf of tycoon Lucio Tan.
In 1988, San Miguel Corp. sued Tan's Asia Brewery Inc. for copying the size, shape and color of its famous beer bottle. In 1990, the case went to the Court of Appeals. It was raffled to Campos, who was asked to rule on whether Tan's firm was guilty of unfair competition and of infringing on San Miguel's trademark.
"What puzzled me was this," Campos recalled recently. "I have very few Chinese friends and they do not know Lucio Tan. Suddenly, one of them called me and he said Lucio Tan was in his house." The tycoon, his friend was told, wanted to meet with the justice.
Well known for his independence and outspokenness, Campos refused. Later, Tan sent word through the justice's friend that he had already spoken to the two other justices who made up the division and they had agreed to decide in the tycoon's favor.
"I was the only one who had not been talked to, and he was willing to give me double of what he gave the other two," said Campos. The two justices had been offered the equivalent of their retirement pay or roughly P2.5 million each, he said.
Antonio Ocampo, in-house counsel for Asia Brewery, denied knowledge of this incident. "If there was such an offer, either real or imagined, it didn't come from us, it was not authorized, not solicited," he said.
Eduardo Ceniza, who lawyered for Asia Brewery in the case, added, "Everybody knows Justice Campos cannot be bought. Everyone on our side knew that, so why even make an attempt?"
Campos decided against Asia Brewery and two other justices of the five-member division he headed voted with him. Months later, he was promoted to the Supreme Court, which eventually reversed his decision. Narvasa denies there was ever pressure on high court justices. But, said Campos: "They waited until I retired." The decision was dated July 5, 1993. Campos had retired three months earlier, on April 13.
"If Asia Brewery lost this case, this would have been the end for them," said Lorna Patajo-Kapunan, San Miguel's lawyer. "They would have to close their whole production line, destroy all the bottles, the molds and all their advertising materials and start from scratch."
Even at the trial court, she said, a bidding war was already taking place. She recalled being approached by a person who claimed to have been sent by the judge assigned to the case. The judge would decide in San Miguel's favor if the company gave him P3 million, the emissary said. San Miguel refused to pay, and it lost the case.
But many times, the approaches to justices do not involve money, lawyers whom we have interviewed said. As justices have heavy caseloads, litigants approach them merely to plead that their motions or briefs be read.
Not all justices, however, can be approached. When they were in the Supreme Court, former Justices Florentino Feliciano and Isagani Cruz recalled, there were always lawyers or litigants trying to see them. "A great deal depends on the individual justice involved," said Feliciano. "I do not allow lawyers to discuss cases. The only people allowed in our chambers are members of the Court or my own lawyers."
In the Quezon election case, both Marquez and his arch-rival, Rodriguez, were actively lobbying with the Court. They also accuse each other of paying off justices.
When Rodriguez was seeking a third term as Quezon governor in 1995, Marquez tried to unseat him by charging that he was a fugitive from justice and therefore banned by the Local Government Code from public office. In April 1995, the Supreme Court defined what a fugitive was and asked the Commission on Elections to determine whether Rodriguez was one.
At this point, Rodriguez said, he was confident of winning. Although he was accused of faking the deaths of his wife and mother-in-law and then collecting on their insurance, the Court limited the definition to those who flee after being charged or convicted. The governor left the US before he was charged, so did not fall under that definition.
The Rodriguez camp believes it was Marquez who approached some of the justices first. But when it seemed that the Court could reconsider its position, the Rodriguez side began to lobby with individual justices.
"In the beginning, we were not concerned with the maneuvers because we thought we would win," said someone close to Rodriguez. "But when Rodriguez thought the other side was maneuvering, he wanted to move also."
Sometime in 1995, the governor, these sources said, was approached by Evener Villasanta, a lawyer who is the chief justice's godson and golf crony. When Marquez found out, he phoned Villasanta, who was a distant relative. "I told him not to interfere in my case because I heard that he was being approached and that Rodriguez was seen in a hotel talking to him by some of my friends."
Villasanta said he was consulted by both parties on the legal issues of the case, but didn't intercede for them. Marquez, he said, approached him first. "He was the one who pleaded with me," said the lawyer. "Sabi niya,' Primo, ako ang tulungan mo, ako ang kamag-anak mo (He said, 'Cousin, help me, I'm the one who's related to you)'."
On June 5, 1996, while the case was still pending, Marquez ran into Narvasa and Villasanta waiting for their flight to Hong Kong in the Philippine Airlines first-class lounge at the Manila airport.
Immigration records show that both the chief justice and the lawyer were on the same flight to and from Hong Kong. Rodriguez said he had arranged for Hopewell, a Hong Kong company with big investments in Quezon, to pick up the tab for rounds of golf which the two men played in the Crown Colony.
Behind the scenes, the battle heated up. In one instance, a Rodriguez aide was talking to one justice when lobbyists for Marquez were shown into the room. The aide had to hide behind the curtains, said sources close to Rodriguez.
In July 1996, the Supreme Court ruled that the governor was not a fugitive from justice. Rodriguez won by one vote. "If we didn't maneuver, we would have lost," said someone close to the governor. "Marquez was outbidded."
But despite the golf games and the approaches through his son and close friend, Narvasa voted against Rodriguez, a fact which the governor resents, those close to him say. Marquez is bitter as well. Although the chief justice voted in his favor, Marquez claimed that Narvasa actually supported his opponent by delaying the release of the decision until there was a majority vote for the governor.
"To them, it's a continuation of politics," said Saguisag, who appeared briefly for Rodriguez in the Supreme Court. "It's gamesmanship. That is their culture. Nobody loses sleep over it. Each side was committed to do what has to be done. This is a good case of how justice is administered in this country."

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http://www.pcij.org/stories/1997/justice.html

posted by Graciella @ 5:34 AM