MANILA, Philippines - Businessman Herminio Disini will appeal the recent Sandiganbayan ruling ordering him to return $50,562,500 to the government representing the alleged commissions he received from contractors of the mothballed Bataan Nuclear Power Plant (BNPP) from 1976 to 1984, his lawyer said yesterday.
Jose Bernas said the decision, which was reported in the media last April 13 but released only by the anti-graft court three days after, came as a surprise since Disini was already cleared by US federal courts and the Geneva-based International Court of Arbitration on the same charge.
“This is a legal impossibility. We will file a motion for reconsideration,” Bernas said.
The complaint against Disini, a known crony of the late strongman Ferdinand Marcos, was filed in July 1987. Bernas said the bribery charges had been dismissed way before the anti-graft court’s first division handed down its ruling.
Bernas initially questioned the anti-graft court’s reliance on a photocopy of what he called unauthenticated tabulation in concluding that Disini received the commissions. The lawyer lamented the tabulation did not even contain any explanation on the purpose for which it was made.
Bernas said he was puzzled how the court arrived at such conclusion when the prosecution submitted no valid record or proof of the amount of commissions received.
He said the bribery charges should not have been pursued in the first place because the US Federal Courts and the Geneva-based International Court of Arbitration (ICA) had already dismissed them finding that there was no evidence that Disini acted as agent for Marcos.
The Swiss tribunal also said the Philippine government failed to prove the alleged bribery in spite of its “unusual access to information - far beyond that available to the usual litigant” through the Swiss government, the Philippines investigation and the United States federal court proceedings.
Bernas also assailed the Sandiganbayan for declaring the commissions as ill gotten when the Supreme Court had even dismissed earlier petitions filed by non-government organizations seeking to nullify contracts with Westinghouse Electric Corp., which means the legality of the project still stands.
By pursuing the bribery charge further, Bernas said the government had pursued an absurd theory of a bribery conspiracy with only one conspirator.
Earlier, the Presidential Commission on Good Government (PCGG) admitted that it had spent some P20 billion to prosecute Disini, which pales in comparison with the alleged commissions paid by Westinghouse.
Disini was barred from presenting evidence after he was declared in default in 2002. Disini said the government knew that Westinghouse built reactors similar to that of BNPP for the same price in Japan, South Korea and Taiwan which dismissed the urban legend of an overprice.
Bernas added Sandiganbayan committed an error in not lifting the order of default because the prosecution had not started presenting evidence then and would thereafter take two years to complete it.
The Sandiganbayan said the PCGG failed to present any documentary or testimonial evidence to establish Disini’s alleged wrongdoing, other than affidavits saying Disini had a close relationship with Marcos. Disini’s wife was Mrs. Imelda Marcos’ cousin.
Disini and Westinghouse were repeatedly cleared by the US Securities and Exchange Commission, the Department of Justice and international auditors hired by both Philippine government and US.
In its 52-page ruling, the Sandiganbayan held that the amount paid as commissions to Disini constitutes ill-gotten wealth as defined under paragraphs 2 and 6 of the charter of the PCGG.
“The evidence presented by the Republic proves that Disini used his influence and close relationship with President Marcos to obtain and amass large amounts of money, which he subsequently stored in various accounts, among which were those in Swiss accounts,” the anti-graft court held.
The ruling penned by Sandiganbayan’s First Division chairman Associate Justice Rafael Lagos even allows the government to collect interest until the whole amount is settled.
The Sandiganbayan’s ruling was anchored mainly on the testimonies of PCGG witnesses Rodolfo Jacob, Angelo Manahan, Rafael Sison and Jesus Vergara.