POSTSCRIPT / March 31, 2005 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Let courts, not senators, decide case against bank

TO LIVE OR DIE: Terri Schiavo, a brain-damaged woman from Florida who lies dying in a hospice after a court ordered her feeding tubes pulled out 13 days ago could be dead by the time you read this.

Or she could still be hanging on as her parents Robert and Mary Schindler fight an uphill court battle to have her feeding tube reinserted to give her a chance to recover. Her husband Michael is firm on keeping the tube out and allowing her to die.

For many Filipinos, especially those unfamiliar with American law and culture, it seems unusual and rather cruel to kill a patient that some doctors say still has a chance to recover with intensive therapy.

Some of us are also asking whose wishes should be followed: that of the husband who is already living with another woman with whom he has two children, or the parents who want to save their daughter. Her blood ties are with her parents, not with her husband.

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BACKGROUND: So Philippine readers can understand better the Shiavo case, we share here some information taken from the CNN website:

On Feb. 25, 1990, Terri Schiavo collapsed at her Florida home from what doctors said was potassium imbalance. After she collapsed, her brain did not receive oxygen for about five minutes. The oxygen deprivation caused severe brain damage.

Doctors hired by Michael said she is in a persistent vegetative state. That does not mean she is brain dead. People in a persistent vegetative state cannot think, speak or respond to commands and are not aware of their surroundings. Terri breathes on her own and blinks.

But doctors that Terri’s parents hired said she is not in a vegetative state and has the capacity to improve with therapy. She has not received physical therapy for more than a decade. Her parents contend that when she received therapeutic care, she uttered a few one-syllable words. Until March 18, Terri received nourishment and hydration through a tube that placed the nutrients directly in her stomach.

In 1992, a Florida jury awarded Michael Schiavo $300,000 for loss of consortium as part of the medical malpractice suit he filed. The jurors also awarded $700,000 to Terri. The $700,000 went into a trust over which her husband has sole control. He said he used the money for her medical care and his legal expenses, and that the money ran out about three years ago.

Florida law specifies that the spouse of an incapacitated adult is that person’s guardian. In 1993, the Schindlers petitioned the court to remove their son-in-law as Terri’s guardian. They lost.

They said there is a conflict of interest because Michael lives with his girlfriend and has two children with her. They said that he cannot uphold the best interest of his wife while living in what they describe as an adulterous relationship. Michael said he is removing his wife’s feeding tube as part of keeping his promise to her that he would not allow artificial means to preserve her life.

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$2-M DEMAND: Manuel V. Baviera was understandably piqued by the observation I made last March 22 that the Senate appears to have been used as an unwitting tool in his efforts to collect $2 million from his former employer, the Standard Chartered Bank.

He wrote an impassioned reply that The STAR published last March 28. Despite the length of his rejoinder, he failed to erase the fact that two letters were sent by his lawyer to Standard Chartered Bank demanding that the bank pay him $2 million or else….

The “or else” means subjecting the bank to public exposure in cases to be filed with the courts as well as the Bangko Sentral, Securities and Exchange Commission, Bureau of Internal Revenue, Bureau of Immigration and Deportation, Department of Justice, National Labor Relations Commission, and the usual congressional investigation.

Despite the threat, the bank refused to accede to the demand for $2 million to replace his $8,000 investment that has gone sour.

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TWO LETTERS: In an apparent effort to explain the glaring disproportion between his investment of only $8,000 and his demand for a whopping $2 million, Baviera pointed to his lawyer as the one who “simply copied the same amount of Php 2 million offered by SCB and changed the currency to US dollars.…”

Is Baviera suggesting that his lawyer made that same demand in two separate letters for the payment of $2 million, without his authorization or, at the very least, his consent?

He said that he just wanted his money ($8,000) back but was “piqued by the P2 million offer” of the bank. He said the change from peso to dollars was made by his lawyer to send the message “that I cannot be bought.”

So what does he really want? Our readers can discern for themselves what Baviera wants by reading carefully this quote from one of two letters sent by his lawyer to the bank: “We therefore reiterate for the last time our client’s demand that he be paid TWO MILLION US DOLLARS ($2,000,000.00) within seven days from receipt hereof. Should you fail to heed our client’s demand, we shall be constrained to file all criminal, civil, administrative and congressional cases against all those responsible for this large-scale scam without further notice.”

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SENATE PROBE: That quote can put in perspective his attempt to disown any responsibility for instigating the Senate investigation against SCB and his naming a certain Atty. Mark Bocobo as the one who brought the matter to Sen. Juan Ponce Enrile’s attention.

Baviera failed to say, however, that it was his own, not Bocobo’s, complaint and documents that were given first to the senator. As far as I know, Bocobo has not filed a formal complaint in court against SCB.

Does Baviera want us to believe that his complaint and documents landed in the hands of Bocobo like manna from heaven and that Bocobo forwarded them to the senator without his (Baviera’s) consent? I believe the son of the late Dean Jorge Bocobo of the UP College of Law is more professional than that.

Something or someone should put a stop to the unethical use of congressional investigation to harass and do other weird things unrelated to legislation. Our senators, busy as they are with more weighty matters, should not allow themselves to be used as collection agents.

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GO TO COURT: Instead of distracting the Senate, or using its committees, Baviera should concentrate on filing in court all the charges he can think of against the bank. If the bank is found guilty, the authorities should then close it and jail its officers.

In court, Baviera can keep repeating his story that he was duped by the bank into investing in a financial product that promised a 40-percent return.

I have asked a lot of investors who do exactly what Baviera did — and they were unanimous in saying that such investments as the one he made are “subject to risks, including the possible loss of the total principal amount invested.”

The documents that he signed with the bank also say this in plain, clear language.

Baviera was a vice president of SCB, high enough in the hierarchy to understand bank products and how to use them to his advantage. He knew what he was getting into.

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WIN OR LOSE: Bavierta knew that his $8,000 investment could go either way, or not move at all. He could lose or win.

And when he lost, it was bad form to go running to a Senate committee to ask it to harass a bank into paying him $2 million to give him a mind-boggling 25,000-percent return on an investment that had already gone awry!

If there was violation of law, as he alleges, he should go to court and throw the book at the bank. But using a Senate inquiry to force the collection of $2 million to turn a loss into a whopping profit — outside of the regular market mechanism — is something else.

And senators unwittingly allowing themselves to be used is still another thing.

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WHERE MONEY WENT: Under his arrangement with SCB, Baviera reportedly instructed the bank to buy the foreign financial product of his choice.

I have learned that in his written instructions, he ordered his money invested in Mercury ST North American Fund ($3,000), Dresdner RCM North American Fund ($2,500), and Morgan Grenfell UK Equity Fund ($2,500).

His money was placed exactly as he ordered, meaning there was no misappropriation. But too bad he lost on his gamble — despite his salivating for a potential, NOT GUARANTEED, 40-percent return.

Btw, the investment product he bought is an ordinary product that people of similar means can instruct their banks to buy. But I understand they can be bought abroad only. And only those who have the sophistication beyond simple savings and time deposit mentality have access to them.

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(First published in the Philippine STAR of March 31, 2005)

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