Power, Impunity and the Republic: The Long Crisis of Accountability
Or: "All After Imelda Marcos’s Acquittal, Martin Romualdez's Arrest, and the still Ongoing Trial of Sara Duterte: The Old Uses of Power and the Persistence of Abuse"
There is a peculiar quality to Philippine political scandals in their old age. They cease to resemble scandals and begin to resemble institutions. They acquire archives, jurisprudence, generations of lawyers, changes of government and, eventually, the faint sepia tone of history. The original outrage becomes something younger citizens encounter through inherited arguments, yellowing newspaper clippings and the occasional anniversary program, while the litigation itself continues at the more stately pace of geology. By the time judgment finally arrives, the country is no longer quite the country in which the case began, although the families, curiously enough, are often still there.
So it is with Imelda Marcos and the Swiss foundations.
The Supreme Court’s acquittal of the former first lady on seven counts of graft is therefore difficult to regard as merely the disposition of seven criminal informations. The First Division, speaking through Associate Justice Rodil Zalameda and joined by Associate Justices Ramon Paul Hernando, Henri Jean Paul Inting, Ricardo Rosario and Jose Midas Marquez, concluded that the prosecution had failed to establish guilt beyond reasonable doubt. The case turned in considerable measure upon the authentication of Swiss documents and upon the meaning to be assigned to the foundations in which Mrs. Marcos allegedly maintained financial interests while occupying public office.
There is nothing inherently sinister in these legal propositions. Criminal guilt must be proved beyond reasonable doubt. Documents must be authenticated according to law. Penal statutes cannot simply be stretched because the accused is famous, disliked, historically notorious or politically inconvenient. A constitutional republic that discards procedure whenever public indignation becomes sufficiently intense will eventually discover that procedure was protecting more than the unpopular defendant.
But the Philippine difficulty begins where the textbook proposition ends. A technical requirement experienced after a year of litigation is procedure. The same requirement discovered after three or four decades begins to resemble an indictment of the institutions responsible for the prosecution itself. The cases against Mrs. Marcos were already part of the national landscape before many of today’s voters were born. Governments changed, constitutions settled into middle age, prosecutors retired, judges died, witnesses disappeared, and the family that had once fled Malacañang returned to it. Only then did the legal process arrive at the conclusion that the State had not proved its case in the manner criminal law requires.
Reasonable doubt remains indispensable. Forty years to discover reasonable doubt is another matter entirely.
This is the distinction that partisan argument habitually refuses to make. The Court may have reached a conclusion defensible within the law while the justice system that required decades to reach it remains indefensible as a system. Both things may be true at once. Indeed, the more intellectually serious criticism of the acquittal does not require imagining five magistrates secretly assembling to rescue the mother of a president. Institutional failure is usually less theatrical. It consists of delay, poor prosecution, evidentiary decay, bureaucratic incompetence, political interruptions, procedural exhaustion and the extraordinary capacity of powerful defendants to remain standing until the State has forgotten how it intended to prosecute them.
The political circumstances nevertheless cannot be wished away by judicial syntax. Ferdinand Marcos Jr. has occupied Malacañang for four years, and it is during his presidency that his mother has obtained this reversal. No evidence has been produced showing that the President personally dictated the judgment, and criticism becomes unserious when suspicion is casually promoted into proof. But public confidence does not depend solely upon the absence of a discoverable conspiracy. Courts live within political history even when they properly refuse to decide cases according to it.
There is another irony, and Philippine politics has lately become unusually rich in them. Every justice participating in the acquittal was appointed to the Supreme Court by Rodrigo Duterte. That circumstance proves no corruption and should prove none; the independence of a judge would mean little if every decision were assumed to belong permanently to the president who signed the appointment. Yet the fact acquires an almost literary quality now that the Marcos and Duterte houses have become enemies. The mother of the Marcos president has been acquitted by Duterte appointees while supporters of Duterte prepare to use the acquittal as evidence against the Marcos order.
One Duterte supporter supplied the argument with unusual economy, imagining “the anti-Marcos crowd, Kakampinks, Dilawans, and company, going apoplectic” over the judgment and wondering whether they might instead respect the Supreme Court because, after all, “Principles don’t depend on who wins, right?”
It is a clever taunt because its premise is correct. Constitutional principle cannot mean respecting courts only when courts injure one’s enemies. Due process does not become dispensable because the defendant’s surname is Marcos. Those who defended institutional independence when courts frustrated Rodrigo Duterte, or when legal processes protected his adversaries, cannot logically demand that those same institutions become instruments of historical vengeance when Imelda Marcos appears before them.
Yet a principle becomes interesting only after it is permitted to cross the aisle.
For the Duterte camp has lately developed its own elaborate vocabulary of necessity. The controversy over Vice President Sara Duterte’s confidential funds has repeatedly been met by arguments invoking national security, intelligence gathering, insurgent recruitment, communist subversion and the need to protect schools and state institutions from threats invisible to ordinary accounting. During her tenure at the Department of Education, the department itself justified confidential expenditures partly through threats involving terrorism, violent extremism and insurgent recruitment. The explanation supplied a familiar Philippine political doctrine: exceptional dangers require exceptional instruments.
That proposition is not absurd. Intelligence cannot be administered as though it were the purchase of blackboards. A government cannot publish the names of informants, operational targets and covert sources and still pretend to possess an intelligence service. Yet the secrecy of an expenditure cannot become an alibi for the expenditure. National security may explain why details cannot be made public; it cannot answer whether the money was lawfully spent, properly liquidated and actually used for the purpose claimed.
The anticipated gloating over the Marcos acquittal therefore aggravates a tension already running through the entire system. At one end stands a scandal as old as the Marcos restoration itself, sustained through decades of litigation until its legal foundations finally gave way. At the other stands the much fresher controversy over Duterte’s confidential funds, where another political camp asks that necessity and security be given their due weight. Between them has opened the flood-control scandal, with its ghost projects, inflated contracts, contractors, politicians, allegations of kickbacks and that almost grotesquely Philippine image of suitcases said to have been filled with cash and carried from one important address to another.
Former Ako Bicol representative Zaldy Co has become one of the central names in the flood-control investigations. The Ombudsman has pursued cases involving projects alleged to have been nonexistent or anomalous, while testimony and counter-testimony concerning cash deliveries have produced their own bewildering subplot of bodyguards, affidavits, recantations and accusations of fabricated testimony. The Sandiganbayan has also issued attachment orders over properties in a case involving Co, while an Anti-Money Laundering Council witness testified that hundreds of millions of pesos moved from a contractor to him. These remain matters for adjudication rather than editorial conviction, but their political meaning is already obvious: public works, appropriations, private contractors and political power have again become almost indistinguishable characters in the same national drama.
Martin Romualdez, too, now confronts serious flood-control allegations and a plunder case, which he denies. The details may ultimately establish guilt, innocence, partial responsibility or another long Philippine excursion through procedural uncertainty. But even before the courts finish their work, the spectacle has revealed the inadequacy of partisan morality. To say that Marcos corruption absolves Duterte corruption would be nonsense. To say that Duterte abuses somehow cleanse Marcos history would be equally absurd. To call Romualdez a crook, whether rhetorically or eventually by judicial finding, does not automatically make Zaldy Co innocent; and evidence against Co would not automatically make Romualdez guilty. Criminal responsibility remains individual even when political systems are collective.
This is precisely why the vulgarity beneath all the competing defenses begins to look remarkably similar. One faction says that the Marcos cases were politicized and poorly prosecuted. Another says confidential funds were necessary to protect the nation against subversion. Another says the flood-control accusations are inventions of rival political camps. Witnesses appear, disappear or recant. Documents become decisive and then questionable. Money is alleged to have traveled through foundations, confidential accounts, contractors or suitcases. Every camp develops an intricate jurisprudence of why its own scandal is complicated and the opponent’s scandal perfectly simple.
If one may ponder the matter, this is where the bullshitry becomes substantially the same, because the protagonists belong to the same system even when they occupy opposing wings of it.
The system does not require Marcos and Duterte to be friends. It does not require Romualdez and Co to remain allies. Indeed, political rivalry may be one of its normal operating mechanisms. Yesterday’s coalition becomes today’s prosecution witness; yesterday’s prosecutor becomes tomorrow’s defendant; yesterday’s defender of executive discretion discovers legislative oversight when another family reaches Malacañang. The factions may fight ferociously because they are competing for possession of the same state, not because they represent fundamentally different understandings of what that state should be.
This is why the familiar questions ought to be asked without partisan qualification. Just because Marcos is corrupt, whether as historical judgment or as an accusation in a particular case, does that make Duterte clean? Obviously not. Just because Romualdez may be implicated in wrongdoing does that establish the innocence of Zaldy Co? Of course not. Nor does a case against Co establish Romualdez’s guilt merely by association. The point is almost embarrassingly elementary, yet Philippine political argument repeatedly proceeds as though corruption were a championship in which proving that the opposing team cheated automatically awards moral innocence to one’s own.
The Marcos-Duterte quarrel has made this habit unusually visible. Each camp now rummages through the record of the other with the diligence it rarely displayed while they governed together. Duterte supporters rediscover the Swiss accounts, martial-law wealth and dynastic privilege. Marcos supporters rediscover confidential funds, drug-war accountability and the discretionary habits of the previous administration. Their researchers have become excellent. Their memories have improved. Their principles have acquired an admirable sharpness, provided the telescope remains pointed across the street.
The flood-control scandal widens the view because it refuses to fit neatly into either family mythology. Contractors, legislators, officials and intermediaries occupy a world older than the present Marcos-Duterte feud. The alleged cash-filled suitcases are almost too picturesque, a form of corruption imagery apparently designed by a novelist lacking confidence in subtlety. Yet even here caution is required: some witnesses who alleged such deliveries later recanted, others maintained allegations, and investigators themselves have at various moments questioned whether testimonial claims were sufficiently corroborated. The uncertainty does not diminish the need for investigation; it demonstrates why investigations must be competent enough to survive politics.
A republic therefore requires two propositions to remain true simultaneously. The accused must receive due process, whether named Marcos, Duterte, Romualdez or Co. And due process must not become the civilized vocabulary by which powerful people consume enough time to make accountability impossible. Confidentiality may protect legitimate intelligence operations, but it must not become invisibility. Evidentiary rules protect defendants from arbitrary conviction, but the State cannot invoke its own decades of incompetence as though they were acts of God.
Here Philippine history supplies an old and rather indecent epigraph.
In 1949, Senate President José Avelino was reported in the Manila Chronicle as protesting investigations ordered during the Quirino administration. The passage subsequently found its way into the Supreme Court reports in Avelino v. Cuenco, which preserved the extraordinary complaint: “Why did you have to order an investigation Honorable Mr. President? If you cannot permit abuses, you must at least tolerate them. What are we in power for?” Avelino continued by rejecting the pretense that politicians were saints or angels. Whatever the circumstances and disputes surrounding the episode, the phrase survived because it possessed the brutal efficiency of an accidental national motto.
“What are we in power for?” has outlived Avelino because it identifies something deeper than ordinary greed. It expresses the belief that political victory purchases not merely the temporary authority to govern but a zone of tolerance around those who possess power: appointments to distribute, contracts to influence, funds to classify, relatives to protect, investigations to encourage or discourage, and institutions whose independence is loudly proclaimed so long as their independence produces convenient results.
The modern politician is unlikely to speak as candidly as Avelino was reported to have spoken. Philippine political language has improved considerably since 1949. Abuse is now reform, patronage is assistance, discretion is flexibility, secrecy is national security, political protection is due process, and factional prosecution is accountability. The vocabulary is cleaner. The appetite is recognizably the same.
This is what connects a Swiss foundation from another political age to a confidential fund spent under a vice president, and both of them to a flood-control project that exists beautifully in government paperwork and less convincingly on the ground. The instruments differ because government itself has changed. The logic remains remarkably persistent: public authority creates opportunities; political affiliation arranges the defenses; and once scrutiny begins, every interested faction explains why its own circumstances are exceptional.
That is also why the Duterte supporter’s question deserves to be preserved rather than dismissed. “Principles don’t depend on who wins, right?” Quite so. The proposition should be accepted in full and then applied without mercy.
If the Supreme Court’s acquittal of Imelda Marcos must be respected because proof beyond reasonable doubt and evidentiary rules do not change according to political preference, then Sara Duterte’s confidential expenditures must likewise be subjected to the governing rules without assuming guilt merely because her enemies demand it. But if confidential funds require accountability notwithstanding claims of national-security necessity, Marcos partisans cannot suddenly treat documentary scrutiny as persecution when their own family history is examined. If Romualdez is entitled to challenge witnesses, affidavits and allegations against him, then Zaldy Co is entitled to the same protections. If evidence ultimately condemns one, it does not cleanse the other.
Principle, if it deserves the name, has no surname.
The real division is therefore not between a clean faction and a corrupt faction, because Philippine politics has rarely offered the electorate so charitable a choice. It is between an institutional order capable of investigating everyone according to durable rules and a political order in which accountability functions as a weapon periodically captured by whichever coalition possesses sufficient power to wield it.
Marcos and Duterte may today appear to be opposite wings. Romualdez and Co may become bitter antagonists. Their followers may spend the coming years cataloguing one another’s scandals and describing every unfavorable investigation as persecution. Yet from the distance at which history eventually views such quarrels, the resemblance may prove more significant than the differences. The wings beat against one another, but the bird remains airborne.
Avelino’s old question thus returns, stripped of its period costume and made respectable by modern bureaucratic vocabulary. What are they in power for? The answer supplied publicly will involve service, security, development, democracy and the national interest. The answer implied whenever accountability becomes selective is considerably older.
The tragedy of the Republic is not that it lacks laws against corruption. It possesses them abundantly. Nor does it lack investigators, auditors, courts, committees, commissions or righteous speeches. What it has lacked with depressing regularity is the ability to apply these instruments quickly, competently and without regard to political genealogy.
Until that changes, the acquittal of a Marcos, the confidential funds of a Duterte, the flood-control allegations surrounding a Romualdez or a Co, and whatever scandal succeeds them will continue to be debated as though each were an unprecedented moral emergency. They are not. They are recurring symptoms of an old constitutional illness whose most candid diagnosis may still have been uttered, or at least attributed, in 1949.
The country has spent three quarters of a century pretending to be shocked by the question.
It has spent rather less time answering it.