THE Sandiganbayan has thrown out a motion from defendant Dominico Borja, a former executive of the Herdis Management and Investment Corp., seeking the dismissal of a criminal charge for allegedly involving former strongman Ferdinand E. Marcos in an unlawful transaction 42 years earlier.
In a July 26, 2024 resolution penned by Associate Justice Michael Frederick L. Musngi, the anti-graft court’s Fourth Division overruled the defendant’s assertion that the case should have been dismissed outright on the ground of prescription and for inordinate delay on the part of the Office of the Ombudsman.
Associate Justices Lorifel Lacap Pahimna and Juliet M. Manalo-San Gaspar concurred.
The Office of the Ombudsman filed the case in 2013 alleging that the Herdis officials induced Marcos to accept four billion shares of The Energy Corporation (TEC) and two and a half billion shares of Vulcan Industrial and Mining Corporation (VIMC) in March 1982 despite knowing that the Chief Executive was barred by law from having financial interests in the said firms.
Originally named co-defendants were the late businessman Herminio Disini, his cousin Jesus Disini, and Herdis officers Angelo Manahan, Jerry Orlina, Alfredo Velayo, and Borja.
Herminio Disini passed away in 2014 while the case against Jesus Disini was dismissed by the court on the strength of his immunity agreement with the Presidential Commission on Good Government (PCGG) signed in February 16, 1989 in exchange for cooperating in the government investigation into irregularities attending the Bataan Nuclear Power Plant (BNPP) deal with US contractors Westinghouse and Burns and Roe.
Unable to trace the whereabouts of the other accused, the Sandiganbayan ordered the case archived in March 2019 but issued alias warrants of arrest against the remaining defendants.
On May, 17, 2024, the court finally acquired jurisdiction over Borja after he was arrested.
In his motion, the defendant protested that the case remained active even after more than 40 years saying he is now 75 years old and the passage of time had already deprived him of the chance to put up an adequate defense since documents pertaining to the questioned transaction as well as potential witnesses may no longer be found.
The prosecution countered that the government became aware of the crime only in 1986 after the EDSA Revolution after the discovery in Malacañang of the March 11, 1982 letter of Herminio Disini to Marcos regarding to the turnover of the TEC shares worth P40 million and Vulcan Mining shares worth P25 million.
It said the secrecy of the transaction among the individuals involved made it impossible for the State to have known that such a crime was committed.
The PCGG filed the complaint in 1993 with the Ombudsman which dismissed the case in 1997, only to be reversed by the Supreme Court later on.
In denying Borja’s motion, the Sandiganbayan held that the “blameless ignorance rule” must be applied which meant the prescription period did not start to run from the commission of the offense since the complainant (the State) had no way of being aware of it.
It said the prescriptive period only commenced in 1986 upon discovery, so the filing of the complaint in 1983 was valid.
On sweeping aside the claim of inordinate delay, the court noted that Borja remained at large from the time the case was filed in 2013 until his arrest earlier this year.
