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A.M. No. RTJ-93-1062 August 25, 1994 compliance with specific school directives and guidelines.

He
however denied that he touched their private parts and
ELIZA RATILLA DE LA CRUZ, assisted by Enriqueta R. de threatened them afterwards.
la Cruz, EDELINE CUISON, assisted by Estrella Cuison,
ANA MARIA CRUZ, assisted by Nieves Cruz and LOLITA Upon hearing the prosecution and the defense, respondent
SANTIAGO, assisted by Epifania del Judge observed that the girls consented, without any force
Rosario, complainants, employed upon them, to strip themselves from waist down
vs. although with understandable reluctance because of their
JUDGE CRISANTO C. CONCEPCION, Regional Trial Court, desire to be in the team considering that according to MEC
Branch 12, Malolos, Bulacan, respondent. Regional Memorandum No. 90, Series of 1981, in relation to
1
DECISION MEC Order No. 66, Series of 1979, failure to submit to physical
examination would automatically disqualify a candidate from
BELLOSILLO, J.: the volleyball team. Respondent Judge was convicted that

This is a case of a judge being made to account for his . . . what he (accused) did touch
acquittal of an accused on reasonable doubt. was only what is called the mons
veneris or that part of the female
Respondent Judge Crisanto C. Concepcion of the Regional sexual organ where pubic hair
Trial Court, Branch 12, Malolos, Bulacan, is administratively could grow. No one of these
indicted for gross ignorance of the law and knowingly rendering complainants said that accused
an unjust judgment for acquitting the accused who was also touched the inner part or
charged before his court with acts of lasciviousness. genital orifice of their private parts.
Parenthetically, respondent is not accused of rendering an If he did, it is inconceivable that not
erroneous judgment spawned in bad faith, fraud, dishonesty or one of them made any outcry from
corruption; much less is immorality imputed to him. that health corner room where they
were inspected inside in groups of
three or two, one group at a time.
Complainants Eliza Ratilla de la Cruz, 13, Edeline Cuison, 11, The Court also refuses to believe
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Ana Maria Cruz, 12, and Lolita Santiago, 12, alleged before that accused touched each one of
the trial court that they were summoned by their coach, them several times for about five
accused Loreto Estrella, Jr., together with other volleyball minutes. That is very unlikely and
players, to his classroom at about five o'clock in the afternoon improbable, not to mention that they
of 16 November 1988. He told them that he had to inspect their never said that before in the police
private parts for the presence of public hair as required by investigation, as well as what they
MEC (now DECS) memorandum circulars. In three (3) groups, now say the wild excitement on the
two (2) of threes and one (1) of two, their coach told them to face of accused while touching
enter the "health corner room" where they removed their shorts them.
and panties and showed their private parts to him which he
touched and stroked.
To better understand and appreciate the rationale of
respondent's decision in the light of the charges hurled against
Eliza, Edeline, Ana Maria and Lolita, with the assistance of him, i.e., gross ignorance of the law, and knowingly rendering
their guardians, charged their coach in four (4) separate an unjust judgment, it is imperative to quote from his decision
criminal complaints commonly alleging that he which we find exhaustively argued

. . . . being a public school teacher and in Understandably, the accused now


relation to the discharge of his duties as the denies touching the private parts of
coach of the girls volleyball team of Bustos the four private complainants. That
Central School, did then and there willfully, touching is the very accusation of
unlawfully and feloniously, with lewd lascivious act imputed against him.
designs, commit an act of lasciviousness He could have very well said that,
upon the person of (complainant) by then no matter how improper and
and there touching her private parts against humiliating for the girls it would
the latter's will and by means of force. seem to be, it was part of the
necessary inspection he was
In the joint trial that ensued, the four (4) girls testified almost assigned to do as their coach by
identically that upon instruction of the accused they reluctantly the guidelines provided by the then
pulled down their shorts and panties and when their private Ministry of Education and Culture
parts were already uncovered, the accused in kneeling or Order No. 66, Series of 1979 (Exh.
squatting position touched their exposed private parts. They "1"), and its implementing rules and
described on the witness stand the expression on the face of guidelines (Exhs. "2" to "8"), in
the accused while allegedly stroking their private parts several determining the age eligibility and
times which lasted for about five minutes each as that of qualification of would-be young
elation, "with his eyes wide open in wild excitement." athletes to participate in the
forthcoming provincial sports event,
The accused on his part admitted having examined the pubic taking into consideration, among
hair of the girls, particularly to be sure that as members of his other things, "breast enlargement"
volleyball team not one of them was above 13 in strict and "presence of pubic hair."
Growing pubic hair on young girls
just above 13 years of age might A careful analysis of the decision of respondent Judge fails to
still be hardly traceable and persuade us that for rendering such well-reasoned verdict he is
accused could probably say that he guilty of gross ignorance of the law and/or knowingly rendering
3
had to feel it with his fingers to be an unjust judgment. In Revita v. Rimando we said
sure that his very eyes were not
deceiving him, but he should have . . . . ( i )t may be argued that the
used his better sense of propriety respondent committed an error of
and kind consideration to save the judgment in dismissing the
girls from the anguish and complaint for grave slander and
humiliation of being touched on the thus causing (at least in
most delicate parts of their bodies. complainant's opinion) a
There seemed to be no urgency for miscarriage of justice.
that in the fulfillment of his duty as a
coach and in obedience to the MEC
directive, to see to it that ineligible However, there is no proof that the
over-aged players are not allowed error was attributable to a
to play in the athletic meet then conscious and deliberate intent to
forthcoming, lest he be found perpetrate an injustice (In
responsible and "be suspended re Climaco, Adm. Case No. 134-J,
from athletic meets throughout his January 21, 1974, 55 SCRA 107,
life, without prejudice to the filing of 119). "As a matter of public policy,
administrative charges against him in the absence of fraud, dishonesty,
even after the athletic meet is over" or corruption, the acts of a judge in
(Exh. "3-A"). his judicial capacity are not subject
to disciplinary action, even though
such acts are erroneous" (48 C.J.S.
To repeat, the Court is inclined to 974).
entertain doubt if the act of accused
complained of was a manifestation
of his lewd designs and not just his To constitute gross ignorance of the law, the subject decision,
repulsive way of following the silly order or actuation of the judge in the performance of his official
MEC guideline of determining the duties must not only be contrary to existing law and
age qualification of prospective jurisprudence but, most importantly, he must be moved by bad
young athletes which did not even faith, fraud, dishonesty or corruption. In the case before us, the
discriminate that female athletes administrative complaint does not even allege that the
should be inspected for the erroneous decision of respondent was thus motivated.
presence of pubic hair or enlarged
breasts by a female coach. First of Knowingly rendering an unjust judgment is both a criminal and
all, if his real motivation was just to an administrative charge. As a crime, it is punished under Art.
satisfy his lust it was unnatural for 204 of the Revised Penal Code the elements of which are: (a)
him to do that by inspecting the girls the offender is a judge; (b) he renders a judgment in a case
eight in all of their private parts one submitted to him for decision; (c) the judgment is unjust; and,
4
group of three at a time, the last of (d) the judge knows that his judgment is unjust. The gist of
which was a group of two. In other the offense therefore is that an unjust judgment be rendered
5
words, he did not inspect any of the maliciously or in bad faith, that is, knowing it to be unjust.
girls alone in the secrecy of the
health corner room inside his An unjust judgment is one which is contrary to law or is not
classroom, in which situation he supported by the evidence, or both. The source of an unjust
could have taken liberties with the judgment may be error or ill-will. There is no liability at all for a
girl(s) unwitnessed by a third mere error. It is well settled that a judicial officer, when
person. Added to this, as already required to exercise his judgment or discretion, is not liable
noted, is the fact that he did not criminally for any error which he commits, provided he acts in
touch any of the girls on any other good faith. Bad faith is therefore the ground of liability. If in
part of her body, like her chest for rendering judgment the judge fully knew that the same was
example, to find out if she already unjust in the sense aforesaid, then he acted maliciously and
had enlarged breasts. The act of must have been actuated and prevailed upon by hatred, envy,
the accused subject of the present 6
revenge, greed, or some other similar motive. As interpreted
accusation seems to the Court not by Spanish courts, the term "knowingly" means sure
the product of a criminal mind, so knowledge, conscious and deliberate intention to do an
much so that he deserves to be 7
injustice. Mere error therefore in the interpretation or
exonerated from the charge in each application of the law does not constitute the crime.
of the four informations. However,
for such act of indiscretion, though
not felonious but still wrongful, The nature of the administrative charge of knowingly rendering
which directly resulted to the mental an unjust judgment is the same as the criminal charge. Thus,
anguish and humiliation of each of in this particular administrative charge, it must be established
the four young complainants in that respondent Judge rendered a judgment or decision not
these cases, the accused must supported by law and/or evidence and that he must be
answer for such moral damages actuated by hatred, envy, revenge, greed, or some other
they suffered.
similar motive. In the case at bench, the motive of respondent of such juror not to vote for a verdict
Judge is not even alleged. of guilty, and if after a consideration
of the whole case, fully, carefully,
May it be asked: Of what law was respondent Judge grossly and honestly made after
ignorant when he acquitted the accused? Corollarily, did he comparison, still one of the jury
knowingly render an unjust judgment when he extensively should entertain a reasonable doubt
discussed and satisfactorily explained his decision? of the guilt of the defendant, it
would then be the duty of such juror
9
not to vote for a verdict of guilty.
If we hold respondent guilty as charged, then we might be
telegraphing the wrong signals to our trial judges. For then,
where administrative sanctions are imposed on them for If for every error of a judge although we do not find any in
rendering judgments of acquittal based on reasonable doubt or the case of respondent he should be punished, then
on difficult questions of law, they would be inclined, and not perhaps no judge, however good, competent and dedicated he
without practical reason, to hand down verdicts of conviction, in may be, can ever hope to retire from the judicial service
case of doubt. For that course would be safer for them to without a tarnished image. Somehow along the way he may
pursue since, after all, erroneous convictions may still be commit mistakes, however honest. This does not exclude
corrected on appeal. But that would be disregarding the true members of appellate courts who are not always in agreement
concept and judicial implication of "reasonable doubt" in in their views. Any one belonging to the minority opinion may
criminal cases, under which judges are directed according to generally be considered in error, and yet, he is not punished
the Rules of Court to render a judgment of because each one is entitled to express himself. This privilege
8
acquittal. Reasonable doubt is should extend to trial judges so long as the error is not
10
motivated by fraud, dishonesty, corruption, or any other evil
motive.
. . . . that state of the case which,
after full consideration of all the
evidence, leaves the minds of the Ordinarily, the act of a man in touching and stroking the private
jurors in such a condition that they parts of a woman is, by itself, lewd for no hand of a man would
cannot say that they feel an abiding wander or venture near her manzanas prohibidas if not for a
conviction, to a moral certainty, of lascivious motivation. But even if the accused stroked and
11
the truth of the charge. Every touched the girls on their montes veneris, respondent
person is presumed to be innocent nevertheless absolved the accused of criminal liability on the
until he is proved guilty. If, upon theory that the complained acts may no longer be considered
such proof, there is reasonable lascivious in view of the directives and implementing rules and
doubt remaining, the defendant is guidelines of the then Ministry (now Department) of Education,
entitled to the benefit of it by Culture and Sports which imposed on the coaches of boys' and
acquittal. It is not sufficient to girls' volleyball teams the responsibility of excluding overaged
establish a probability, though a players from their teams using as one of the criteria the
strong one, that the fact charged is presence of pubic hair. In other words, since the complained
more likely to be true than acts may be considered lawful under MECS orders, rules and
otherwise, but the evidence must guidelines, respondent Judge may have had reason to
establish the truth of the fact to a conclude that lewdness could no longer be merely presumed.
reasonable and moral certainty, a
certainty that convinces and directs Although we are not supposed to pass upon the merits of the
the understanding, and satisfies the case, a cursory discussion thereon is deemed necessary for
reason and judgment of those who the purpose of establishing that respondent, in rendering a
are bound to act conscientiously judgment of acquittal, did not disregard, much less violate, any
12
upon it, and, in order to find the law or known jurisprudence. In People v. Balbar we ruled
defendant guilty, the evidence must that the presence or absence of lewd designs is inferred from
be such as to exclude every single the nature of the acts themselves and the environmental
reasonable hypothesis, except that circumstances. This supports our conviction that in the case at
of the guilt of the defendant. In bench the accused did not have a criminal mind at all, hence,
other words, all of the facts proved his acquittal by the respondent. After all, in the face of two
must be consistent with, and point plausible self-sustaining theories, albeit contradictory, one for
to, the guilt of the defendant, not conviction and the other for acquittal, the latter prevails under
only, but the facts must be the constitutional presumption of innocence, applying as our
inconsistent with her innocence. It parameter the test spelled out in the preceding paragraphs.
matters not how clearly the
circumstances point to guilt, still, if We reiterate that "mere errors in the appreciation of evidence,
they are reasonably explainable on unless so gross and patent as to produce an inference of
a theory which excludes guilt, then ignorance or bad faith, or that the judge knowingly rendered an
it cannot be said that the facts in unjust decision, are irrelevant and immaterial in an
the case are sufficient to satisfy the administrative proceeding against
13
him." In Ad
jury, beyond a reasonable doubt, of Hoc Committee Report re Judge Silverio S. Tayao, RTC,
the guilt of the defendant, and in 14
Branch 143, Makati, and Morada v. Judge Tayao, this Court
that event she should be acquitted. through Mr. Justice Feliciano incisively and appropriately
If, after consideration of the whole explained
case, any one of the jury should
entertain a reasonable doubt of the
guilt of the defendant, it is the duty
. . . . By its nature, judicial discretion knowledge of the law to guide him,
involves the exercise of judgment adjudicate the case accordingly
on the part of the judge. The judge (Vda. de Zabala vs. Pamaran, 39
must be allowed a reasonable SCRA 430 [1971])."
latitude for the operation of his own
individual view of the case, his Pertinently, it may be mentioned that on 26 February 1992, or
appreciation of the facts, and his almost a year before respondent Judge handed down his
understanding of the applicable law subject decision on 8 January 1993, then Judge Narciso T.
on the matter. Judicial discretion is, Atienza of the Regional Trial Court of Malolos, Bulacan,
of course, not unlimited; it must be Branch 16, likewise acquitted the same accused on a similar
guided and controlled by well- charge of acts of lasciviousness committed on one Sarah Jane
known rules and principles . . . . Lapuz, an aspirant to the track and field team coached by the
accused. His decision was never questioned. Incidentally,
If Judge Tayao committed any error Judge Atienza was later elevated to the Sandiganbayan.
at all, it was an error of judgment
and it is important to recall the WHEREFORE, the administrative charges of gross ignorance
firmly established principle that a of the law and knowingly rendering an unjust judgment against
judge may not be administratively respondent JUDGE CRISANTO C. CONCEPCION of the
charged for mere errors of Regional Trial Court of Malolos, Bulacan, Branch 12, are
judgment, in the absence of a DISMISSED for lack of merit.
showing of any bad faith, malice or
corrupt purpose:
SO ORDERED.
"A Judge cannot be held to account
or answer, criminally, civilly, or Narvasa, C.J., Feliciano, Bidin, Davide, Jr., Melo,
administratively, for an erroneous Quiason, Puno, Kapunan and Mendoza, JJ., concur.
decision rendered by him in good
faith (In re: Petition for the Cruz, J., is on leave.
Dismissal from Service and/or
Disbarment of Judge Baltazar R.
Dizon, 173 SCRA 719 [1989]).

Separate Opinions
1. As a matter of public policy, in
the absence of fraud, dishonesty, or
corruption, the acts of a judge in his ROMERO, J., dissenting:
judicial capacity are not subject to
disciplinary action, even though I find it difficult to agree with the majority opinion that the
such acts are erroneous (Revita vs. charge against respondent judge be dismissed, thereby
Rimando, 98 SCRA 619 [1980]; exonerating him from any administrative liability. I am likewise
Ubongon vs. Mayo, 99 SCRA 30 unable to join the decision of my distinguished colleagues
[1980]; Ramirez vs. Corpuz- subscribing to the finding of respondent judge that no acts of
Macandog, 144 SCRA 462 [1986]; lasciviousness were committed by the accused Loreto Gaspar
Abad vs. Bleza, 145 SCRA 1 Estrella, Jr. alias "Boy Turko" in Criminal Cases 614-M-89,
[1986]; Heirs of Julio Rosas vs. 615-M-89, 616-M-89 and 617-M-89.
Reyes, 188 SCRA 236 [1990];
Pilipinas Bank vs. Tirona-Liwag,
The Office of the Court Administrator itself, after some four (4)
190 SCRA 834 [1990]).
months of investigation and evaluation, noted in its Report that
the "respondent judge in his decision defied human logic
Mere errors in the appreciation of because by complying with the supposed DECS order, there
such evidence, unless so gross and was no need to touch and stroke the girls' private parts,"
patent as to produce an inference especially as it is not disputed that the accused did so with
of ignorance or bad faith, or that the pleasure in his eyes. Considering the moral ascendancy
judge knowingly rendered an unjust amounting to intimidation which the accused had over the
decision, are irrelevant and complainants, he may be said to have subdued the free
immaterial in an administrative exercise of their will, such dominating compulsion directed
proceeding against him. No one, against their chastity resulting in their mental anguish and
called upon to try facts or interpret humiliation. The OCA recommended a P20,000.00 fine
the law in the process of coupled with a stern warning that a repetition thereof would
administering justice, can be merit a harsher sanction.
infallible in his judgment. All that is
expected of him is that he follow the
The judge himself, in his decision dated January 8, 1993,
rules prescribed to ensure a fair
admitted that "touching the girls' private parts was a repulsive
and impartial hearing, assess the
way of following the silly MEC guideline of determining the age
different factors that emerge
qualification of prospective athletes" for the girls' volleyball
therefrom and bear on the issues
team. Indeed, is there no other, and certainly less "repulsive"
presented, and on the basis of the
way of gauging the fitness of an aspiring athlete than the
conclusions he finds established,
tactile?
with only his conscience and
Moreover, the respondent judge, in his attempt to disprove any humiliation. The OCA recommended a P20,000.00 fine
lewd designs on the part of the accused, stated: "Added to this, coupled with a stern warning that a repetition thereof would
as already noted, is the fact that he did not touch any of the merit a harsher sanction.
girls on any other part of her body, like her chest for example,
to find out if she already had enlarged breasts." After having The judge himself, in his decision dated January 8, 1993,
invaded the most private, nay, the most sacred part of a girls' admitted that "touching the girls' private parts was a repulsive
body, any other molestation pales into insignificance. way of following the silly MEC guideline of determining the age
qualification of prospective athletes" for the girls' volleyball
To my mind, any teacher who uses administrative guidelines of team. Indeed, is there no other, and certainly less "repulsive"
the Ministry of Education as an excuse to satisfy his lust and way of gauging the fitness of an aspiring athlete than the
inflict his lecherousness on innocent girls deserves strong tactile?
condemnation from any judge worth the robe he dons and who
is regarded in the community as an upright, moral and just Moreover, the respondent judge, in his attempt to disprove any
man. lewd designs on the part of the accused, stated: "Added to this,
as already noted, is the fact that he did not touch any of the
That another case was brought against the accused on a girls on any other part of her body, like her chest for example,
similar charge of acts of lasciviousness on another female to find out if she already had enlarged breasts." After having
aspirant to the track and field team, even if another misguided invaded the most private, nay, the most sacred part of a girls'
judge saw fit to deliver a judgment of acquittal, is strongly body, any other molestation pales into insignificance.
indicative of the propensity of said accused to take advantage
of chaste girls under his charge. Such morally perverse To my mind, any teacher who uses administrative guidelines of
officials from whom the public would expect a higher standard the Ministry of Education as an excuse to satisfy his lust and
of morality inasmuch as they stand as guardians of young girls inflict his lecherousness on innocent girls deserves strong
in loco parentis in the school premises should have received condemnation from any judge worth the robe he dons and who
more than just a figurative slap on the wrist (in this case moral is regarded in the community as an upright, moral and just
damages), from respondent judge. The latter had the man.
opportunity to mete out a penalty cum a resounding reminder
on the accused with respect to his moral responsibilities as a
teacher. Sad to say, he passed up this opportunity. Who is to That another case was brought against the accused on a
say who is the worse transgressor, the offender himself or the similar charge of acts of lasciviousness on another female
one who by virtue of his position of authority could have aspirant to the track and field team, even if another misguided
induced the former to henceforth tread the path of rectitude? judge saw fit to deliver a judgment of acquittal, is strongly
We can only lament the fact that both share the same lax indicative of the propensity of said accused to take advantage
moral standards to the detriment of the present and future crop of chaste girls under his charge. Such morally perverse
of prospective virginal athletes. The judiciary would officials from whom the public would expect a higher standard
undoubtedly be better off minus one judge of the questionable of morality inasmuch as they stand as guardians of young girls
moral scruples of respondent. in loco parentis in the school premises should have received
more than just a figurative slap on the wrist (in this case moral
damages), from respondent judge. The latter had the
opportunity to mete out a penalty cum a resounding reminder
on the accused with respect to his moral responsibilities as a
teacher. Sad to say, he passed up this opportunity. Who is to
say who is the worse transgressor, the offender himself or the
# Separate Opinions one who by virtue of his position of authority could have
induced the former to henceforth tread the path of rectitude?
We can only lament the fact that both share the same lax
ROMERO, J., dissenting: moral standards to the detriment of the present and future crop
of prospective virginal athletes. The judiciary would
I find it difficult to agree with the majority opinion that the undoubtedly be better off minus one judge of the questionable
charge against respondent judge be dismissed, thereby moral scruples of respondent.
exonerating him from any administrative liability. I am likewise
unable to join the decision of my distinguished colleagues G.R. No. L-58889 July 31, 1986
subscribing to the finding of respondent judge that no acts of
lasciviousness were committed by the accused Loreto Gaspar
Estrella, Jr. alias "Boy Turko" in Criminal Cases 614-M-89, NATHANIEL S. MANIPON, JR., Petitioner,
615-M-89, 616-M-89 and 617-M-89. vs. SANDIGANBAYAN, Second Division composed
of HON. BERNARDO P. FERNANDEZ as Acting
The Office of the Court Administrator itself, after some four (4) Presiding Justice and HON. BUENAVENTURA J.
months of investigation and evaluation, noted in its Report that GUERRERO and HON. MOISES C. KALLOS, as
the "respondent judge in his decision defined human logic Associate Justices, Respondents.
because by complying with the supposed DECS order, there
was no need to touch and stroke the girls' private parts," Guillermo B. Bandonill for petitioner.chanrobles virtual
especially as it is not disputed that the accused did so with law library
pleasure in his eyes. Considering the moral ascendancy
amounting to intimidation which the accused had over the
complainants, he may be said to have subdued the free The Solicitor General for respondents.
exercise of their will, such dominating compulsion directed
against their chastity resulting in their mental anguish and FERNAN, J.:
This is a case of direct bribery penalized under Article consideration. Dominguez agreed and they arranged to
210 of the Revised Penal meet at the bank later in the afternoon. After Manipon
Code.chanroblesvirtualawlibrary chanrobles virtual law left, Dominguez confided the offer to NISA Sub-Station
library Commander Luisito Sanchez. They then hatched up a
plan to entrap Manipon by paying him with marked
In its decision dated September 30, 1981, the money the next day. Col. Sanchez and a Col. Aguana
Sandiganbayan found accused Nathaniel S. Manipon, were able to put up P700.00 in fifty-peso bills which
Jr., 31, guilty of direct bribery, sentenced him to four were then authenticated, xeroxed and dusted with
months and twenty days of arresto mayor with fluorescent powder. 7chanrobles virtual law library
temporary special disqualification for eight years and
one day and a fine of P2,000.00 with subsidiary Thus, at about 4:00 o'clock in the afternoon of
imprisonment in case of insolvency and to pay the December 28, 1979, Dominguez went to Comtrust as
costs.chanroblesvirtualawlibrary chanrobles virtual law planned. Manipon showed up with two companions,
library named Deputy Sheriff Crisanto Flora and Baltazar
Pacis. Manipon delivered his letter to the bank lifting
Manipon came to this Court on petition for review on the garnishment. 8Then Dominguez prepared a
certiorari seeking the reversal of the judgment of withdrawal slip for P2,500.00. 9As soon as Dominguez
conviction. The Court dismissed the petition, "the received the money from the teller, he took out
question raised being factual and for lack of P300.00 therefrom added it to the P 700.00 in marked
merit." 1However, upon motion for reconsideration, the bills and handed the total amount of P l,000.00 to
Court reconsidered its resolution and gave due course Manipon. Then they all left the bank. Dominguez
to the petition. 2chanrobles virtual law library walked over to his car and drove off. Manipon and his
two companions walked down Session Road. Moments
later, PC and NISA operatives accosted them, seized
The facts of this case are as follows: chanrobles virtual
the P1,000.00 from the left breast pocket of Manipon
law library
and thereafter brought them to Camp Dangwa for
questioning. Manipon was subjected to an ultraviolet
Nathaniel S. Manipon, Jr., a deputy sheriff of the Court light test and found positive for fluorescent powder.
of First Instance of Baguio City and Benguet, Branch However, after executing a certification relative to the
IV, was assigned to enforce an order of the Minister of money recovered, he refused to give any
Labor dated October 31, 1979 directing the Sheriff of statement. 10He filed his sheriff's return unsatisfied on
Baguio City or his deputy to execute the decision of February 20, 1980 or after 114 days. 11chanrobles
the labor arbiter in NLRC Case No. RB-1-C-1428-79 virtual law library
entitled "Longog Tabek, et al vs. Harry Dominguez et
al" and to make a return within thirty (30) days from
Originally, Manipon was charged with violation of
said date. 3The labor arbiter's decision ordered Harry
Presidential Decree No. 46 for having demanded and
Dominguez, a building contractor and the then
received P l,000.00 from Dominguez, a private
municipal mayor of Tadian, to pay Longog Tabek and
individual, for a favor extended by him to the latter,
the other judgment creditors the amount of P2,720.00
i.e., by not enforcing the garnishment order issued to
with interest, as the balance of their work
Comtrust which was his official duty. However, in an
contract. 4 chanrobles virtual law library
amended information dated February 16, 1981, the
charge was changed to direct bribery under the
Pursuant to that assignment, Manipon on November 9, Revised Penal Code. 12chanrobles virtual law library
1979 sent a notice to the Commercial Bank and Trust
branch [Comtrust] in Baguio City garnishing the bank
Manipon was released on bail. When arraigned, he
accounts of Dominguez. 5The bank agreed to hold the
pleaded not guilty. 13chanrobles virtual law library
accounts. For one reason or another, Manipon did not
inform the labor arbiter of the garnishment nor did he
exert efforts to immediately satisfy the judgment In his brief, Manipon contends that the Sandiganbayan
under execution.chanroblesvirtualawlibrary chanrobles erred in convicting him of direct bribery, in not giving
virtual law library credence to the defense theory that there was
novation of the money judgment and in admitting
illegally-obtained
On November 12, 1979, Dominguez sought Manipon's
evidence.chanroblesvirtualawlibrary chanrobles virtual
help in the withdrawal of the garnished account.
law library
Manipon told Dominguez that the money could not be
withdrawn. virtual law library
The crime of direct bribery as defined in Article 210 of
the Revised Penal Code consists of the following
However, on December 27, 1979 when the two met
elements: (1) that the accused is a public officer; (2)
again at the Office of the National Intelligence and
that he received directly or through another some gift
Security Authority [NISA] in Baguio City, Manipon told
or present, offer or promise; (3) that such gift, present
Dominguez that he "can remedy the withdrawal so
or promise has been given in consideration of his
they will have something for the New
commission of some crime, or any act not constituting
Year." 6Dominguez interpreted this to mean that
a crime, or to refrain from doing something which it is
Manipon would withdraw the garnished amount for a
his official duty to do, and (4) that the crime or act
relates to the exercise of his functions as a public him up because of a grudge? And if there was really an
officer. 14 The promise of a public officer to perform an agreement to alter the judgment, why did he not
act or to refrain from doing it may be express or inform the labor arbiter about it considering that it was
implied. 15chanrobles virtual law library the labor arbiter who had issued the order of
execution? Manipon could not give satisfactory
It is not disputed that at the time of the commission of explanations because there was no such agreement in
the crime Manipon was the deputy sheriff of the Court the first place.chanroblesvirtualawlibrary chanrobles
of First Instance of Benguet and Baguio assigned to virtual law library
implement the execution order issued in NLRC Case
No. RB-1-C-1428-79. It is also not disputed that The temporary receipt 20 adduced by Manipon, as
Manipon garnished the bank accounts of Dominguez at correctly pointed out by the Solicitor General, is a last-
Comtrust and that he lifted the same on December 28, minute fabrication to provide proof of the alleged
1979 after which he received P l,000.00 from agreement for the trial payment of the judgment debt.
Dominguez.chanroblesvirtualawlibrary chanrobles Contrary to Manipon's claim, it is hard to believe that
virtual law library Dominguez was not interested in getting said
temporary receipt because precisely that was the proof
It is the theory of the defense that the P1,000.00 he needed to show that he had partially complied with
Manipon collected from Dominguez on December 28, his legal
1979 was not a bribe but a payment in partial obligation.chanroblesvirtualawlibrary chanrobles virtual
satisfaction of the judgment under execution to which law library
the judgment creditors headed by Longog Tabek had
agreed.chanroblesvirtualawlibrary chanrobles virtual The testimonies of Crisanto Flora and Longog Tabek
law library are of no help either to the defense. Flora is Manipon's
co-sheriff and is therefore biased. On the other hand,
Manipon narrates that during his meeting with Tabek, on several occasions on the witness stand,
Dominguez at the NISA office on December 27, 1979, answered with obvious hesitation, betraying himself to
Dominguez requested Manipon to convey to the be a rehearsed witness. While he claimed that he was
creditors that he was only willing to pay for the time the supposed headman of the other creditors, he could
being a partial amount of P1,000.00, the balance of P not present any authority that would allow him to
1,720. 00 to be paid after the New Year. 16 So he speak for them, let alone agree to receive a lesser
visited Longog Tabek who was the "lead man." Tabek, amount in their behalf. He even admitted that he did
an illiterate, consented to the lesser amount because not know their names. 21chanrobles virtual law library
he needed money badly. 17His arrangements with
Tabek and Dominguez were all verbal. At that time he Indeed, Manipon's behavior at the very outset, had
found no reason to have some written memorandum been marked with irregularities. As early as November
for his own 9, 1979, he had already garnished the bank accounts
protection.chanroblesvirtualawlibrary chanrobles of Dominguez at Comtrust, but he did not notify the
virtual law library labor arbiter so that the corresponding order for the
payment by the bank of the garnished amount could
At Comtrust after Dominguez had given him the be made and the sum withdrawn immediately to
P1,000.00 Manipon made a move to hand him a satisfy the judgment under execution. His lame excuse
temporary receipt but Dominguez brushed it aside and was that he was very busy in the sheriff's office,
said he was in a attending to voluminous exhibits and court
hurry. 18 chanrobles virtual law library proceedings. That was also the same excuse he gave
for not informing the labor arbiter of the novation. In
fact he candidly admitted that he never communicated
Manipon maintains that Dominguez had framed him up
with the NLRC concerning the garnishment. He
because of a grudge. He said that in 1978 he and Flora
returned the writ unsatisfied only on February 20,
had levied execution against several vehicles owned by
1980 although by its express terms, it was returnable
Dominguez, an act which the latter had openly
within thirty days from October 29, 1979. 22Clearly,
resented. 19chanrobles virtual law library
Manipon had planned to get Dominguez to acquiesce to
a consideration for lifting the garnishment
The defense theory is so incredible that it leaves no order.chanroblesvirtualawlibrary chanrobles virtual law
doubt whatsoever in the Court's mind that Manipon is library
guilty of the crime
charged.chanroblesvirtualawlibrary chanrobles virtual
Manipon was also asked about the affidavit he
law library
executed during the preliminary investigation. 23That
affidavit contained two annexes but the temporary
It is very strange indeed that for such an important receipt which he allegedly prepared on December 28,
agreement that would modify a final judgment, no one 1979 was not included. He said he misplaced it in his
took the bother of putting it down on paper. Of course office and found it only several weeks after he had
Manipon would have us believe that there was no need made the affidavit. 24This leads us to strongly suspect
for it because he trusted Dominguez and Tabek. And there was actually no temporary receipt at all at the
yet did he not also claim that Dominguez had framed time of payment on December 28 and that it was
concocted by the defense as a last-ditch effort to make Upon noticing the second signal, the NISA agents and
the authorities believe that what had transpired was the PC operatives approached Manipon and his two
not a payoff but a legitimate partial satisfaction of a companions. After Identifying themselves as peace
judgment debt.chanroblesvirtualawlibrary chanrobles officers, they retrieved the P l,000.00 from Manipon.
virtual law library Through it all, Manipon remained amazingly silent and
voiced no protest. 30 chanrobles virtual law library
In the final analysis, it all boils down to credibility. In
this regard, the prosecution witnesses have acquitted The search and seizure of the P1,000.00 from Manipon
themselves welt The Sandiganbayan did not err in would therefore fall within the first exception. The
giving weight and credence to their version instead of search was made as an incident to a lawful arrest, in
Manipon's. Indeed, Manipon's guilt for the crime of accordance with our pronouncement in Moreno v. Ago
direct bribery has been proved beyond reasonable Chi 12 Phil. 439, reiterated in Alvero v. Dizon 76 Phil.
doubt.chanroblesvirtualawlibrary chanrobles virtual law 637, to wit:
library
An officer making an arrest may take from the person
Dwelling on one last point, Manipon has pointed out arrested any money or property found upon his person
that the P1,000.00 was illegally seized because there which was used in the commission of the crime or was
was no valid March warrant and therefore the fruit of the crime or which might furnish the
inadmissible.chanroblesvirtualawlibrary chanrobles prisoner with the means of committing violence or
virtual law library escaping, or which may be used in evidence in the trial
of the case.
The argument is untenable. The rule that searches and
seizures must be supported by a valid warrant is not The evident purpose of this exception is both to protect
an absolute rule. There are at least three exceptions to the arresting officer against physical harm from the
the rule recognized in this jurisdiction. These are: 1) person being arrested who might be armed with a
search incidental to an arrest, 2) search of a moving concealed weapon and also to prevent the person
vehicle, and 3) seizure of evidence in plain arrested from destroying evidence within his
view. 25chanrobles virtual law library reach. 31chanrobles virtual law library

In the case at bar, the records show that at about 2:00 Since the other issues raised by Manipon are factual
p.m. on December 28,1979, NISA Sub-Station they need not be discuss
Commander Colonel Luisito Sanchez held a final here.chanroblesvirtualawlibrary chanrobles virtual law
briefing among his men and some operatives from the library
Benguet Philippine Constabulary concerning the
planned entrapment. He had earlier received word WHEREFORE, in view of the foregoing, the instant
from Dominguez that the lifting of the garnishment petition is denied for lack of merit, with costs against
would be effected that afternoon and he informed petitioner-accused Nathaniel Manipon, Jr. The decision
them that Manipon was asking money from of the Sandiganbayan dated September 30, 1981 is
Dominguez. 26As Colonel Sanchez earlier testified, part affirmed.chanroblesvirtualawlibrary chanrobles virtual
of the money to be withdrawn after lifting the law library
garnishment was to be given to the accused 27 for
agreeing to lift the order of garnishment. After the
SO ORDERED.
briefing which lasted from ten to fifteen minutes, they
an headed for the Comtrust
bank.chanroblesvirtualawlibrary chanrobles virtual law Teehankee, C.J., Feria, Yap, Narvasa, Melencio-
library Herrera, Alampay, Gutierrez, Jr. Cruz and Paras, JJ.,
concur.
NISA Agent Caesar Murla stationed himself near the
door of the bank so that he could observe what
transpired inside the bank. 28He testified that he saw
Dominguez give the marked money to Manipon which
the latter accepted and counted. Upon seeing Manipon G.R. No. 75160 March 18, 1988
take the money from Dominguez, Agent Murla gave a
signal to some of the agents positioned nearby by LEONOR FORMILLEZA, Petitioner, vs. THE
placing his right hand on his head to indicate that the HONORABLE SANDIGANBAYAN, First Division and
money had changed hands. Immediately thereafter, PEOPLE OF THE PHILIPPINES, Respondents.
Dominguez left the bank, Manipon placed the money in
his left breast pocket and followed suit. As Manipon
walked past Murla on his way out, the latter gave K.V. Faylona & Associates for petitioner.chanrobles
another signal by putting his hand on his left breast to virtual law library
indicate that Manipon had placed the money in his left
breast pocket. 29chanrobles virtual law library The Solicitor General for respondents.

GANCAYCO, J.:
This is a Petition for review of a Decision of the Everyone who was to participate in the entrapment
Sandiganbayan.chanroblesvirtualawlibrary chanrobles was ready. Mrs. Mutia went to see the petitioner in her
virtual law library office after which the two of them proceeded to the
canteen. Some of their officemates - Mrs. Florida
The records of the case disclose that petitioner Leonor Sevilla and a certain Mrs. Dimaano - joined them in the
Formilleza has been with the government service for canteen. They occupied two squareshaped tables
around 20 years. She was the personnel supervisor of joined together. The petitioner sat at the head of the
the regional office of the National Irrigation table with Mrs. Mutia seated at her left, Mrs. Dimaano
Administration (NIA) in Tacloban City, Leyte since at her (the petitioner's) right and Mrs. Sevilla at the
October 1, 1982. Her duties include the processing of right of Mrs. Dimaano. Sergeants Bonjoc and Labong
the appointment papers of sat at another table while Sergeant Abanes was alone
employees.chanroblesvirtualawlibrary chanrobles in still another table. The latter brought along a
virtual law library camera in order to take photographs of the
entrapment. The marked money was folded
altogether.chanroblesvirtualawlibrary chanrobles
On the other hand, a certain Mrs. Estrella Mutia was an
virtual law library
employee of the NIA from February, 1978 up to March,
1985. Her appointment was coterminous with a project
of the NIA. On December 31, 1983, her appointment Mrs. Mutia maintains that after they had finished
wag terminated. This notwithstanding, she continued taking their snacks, she handed the marked money
working for the NIA pursuant to the verbal instructions bills under the table with her right hand to the
of the regional director of the petitioner who received the same with her left hand. At
Administration.chanroblesvirtualawlibrary chanrobles that moment, Sergeant Bonjoc approached the
virtual law library petitioner and held her hand holding the money bills.
Sergeant Abanes brought out his camera and took
photo. graphs of the sequence of events. He was able
Mrs. Mutia testified that she took steps to obtain either
to take seven photographs. 1 chanrobles virtual law
a permanent or at the least a renewed appointment;
library
that when she approached the regional director about
the matter she was advised to see the petitioner who
was to determine the employees to be appointed or The petitioner was arrested by the soldiers despite her
promoted; and that the petitioner refused to attend to objections to the entrapment. She was brought to the
her appointment papers unless the latter were given PC crime laboratory in the locality where she was
some money.chanroblesvirtualawlibrary chanrobles found positive for ultra-violet powder. In the presence
virtual law library of the corporate counsel of the NW the petitioner
denied accepting any bribe money from Mrs.
Mutia.chanroblesvirtualawlibrarychanrobles virtual law
On February 27, 1984, Mrs. Mutia reported her
library
problem to the Philippine Constabulary (PC) authorities
in the province. The PC officials told her that steps
were to be taken to entrap the petitioner. The The case was brought to the Sandiganbayan where it
entrapment equipment consisted of marked paper was docketed as Criminal Case No. 9634. Arraigned on
money bills worth P100.00. The PC officials concerned January 1 0, 1985, the petitioner entered a plea of not
were colleagues of the husband of Mrs. Mutia in the guilty and went to trial on May 13,
PC.chanroblesvirtualawlibrary chanrobles virtual law 1985.chanroblesvirtualawlibrary chanrobles virtual law
library library

The first attempt to entrap the petitioner was on In the proceedings before the Sandiganbayan, the
February 28, 1984. The plan did not materialize as the prosecution argued that the entrapment arranged by
petitioner did not show up at the designated the PC operatives was n because the petitioner was
rendezvous at the NIA building asking money from Mrs. Mutia in consideration for
canteen.chanroblesvirtualawlibrary chanrobles virtual having the appointment papers of the latter facilitated.
law library On the other hand, the petitioner maintains her
innocence - that there was no entrapment; the
scenario was but a scheme set up by Mrs. Mutia and
The second attempt was on February 29,1984, this
her husband's colleagues in the PC. The petitioner
time with results. That morning, the petitioner and
denies having accepted the supposed bribe
Mrs. Mutia met in their service bus on their way to
money.chanroblesvirtualawlibrary chanrobles virtual
work. The two women supposedly agreed to meet at
law library
the canteen later that morning at 9:00 o'clock.
Thereafter, Mrs. Mutia notified the PC authorities who
were to arrange the entrapment. The PC soldiers The Sandiganbayan relying on the theory of the
involved in the arrangement were Identified as prosecution observed in a decision promulgated on
Sergeants Eddie Bonjoc, Efren Abanes and Ignacio July 14, 1986, 2 as follows -
Labong.chanroblesvirtualawlibrary chanrobles virtual
law library Upon consideration of the evidence. We find the p
petitions version
credible.chanroblesvirtualawlibrary chanrobles virtual took place between the complainant and the accused
law library before the PC operative pounced upon the accused,
and the latter angrily asked the complainant what she
Two days before the entrapment, Mrs. Mutia was trying to do to her, does not improve the cause of
complained to the PC authorities about the inaction of the defense. As portrayed by the accused, she was at
the on her appointment papers due to her failure to the head of the rectangular table with the complainant
give Mm money. She executed a sworn statement to at her left: Mrs. Dimaano at her right, and Mrs. Sevilla
that effect, ... It was the PC who planned the next to Mrs. Dimaano. Since the money, according to
entrapment and supplied the marked money. Sgt. the complainant and Sgt. Abanes was handed to and
Efren Abanes who dusted the money bills with received by the accused underneath the table, it is not
fluoresence powder and who was a member of the surprising that Mrs. Sevilla who was two seats away
entrapment team, witnessed the delivery and receipt from the accused did not see it. 3
of the money by the accused and the complainant and
he saw how the folded money was handed by Mrs. The respondent court ruled that the crime committed
Mutia with her right hand underneath the table and by the petitioner was not Direct Bribery as defined in
received by the with her left hand. That was also how Article 210 of the Revised Penal Code cited in the
Mrs. Mutia described the manner she delivered the Information but Indirect Bribery as defined under
money to the accused - the money bills were rolled Article 211 of the same code. Citing the case of People
winch she handed to with her right hand underneath v. Abesamis, 4 the respondent court was of the opinion
the table. Although Sgt. Abanes had a camera with that she could be convicted for Indirect Bribery under
him to photograph the entrapment, he could not the Information for Direct Bribery to which she pleaded
prematurely expose the camera to allow a shot of the and entered into trial inasmuch as it is the allegation of
actual giving of the money lest the notice his presence facts rather than the denomination of the offense by
and intention and thereby thwart the operation. But the provincial fiscal that determines the crime
after the money had been delivered and received, he charged.chanroblesvirtualawlibrary chanrobles virtual
immediately took out his camera and snapped law library
pictures, one of them depicting the accused held by
Sgt. Bonjoc and Labong on the left hand ..., and Thus, the respondent court found the petitioner guilty
another showing the accused also held on the left hand of Indirect Bribery and sentenced her to four months
by one of the PC men, and the complainant, Mrs. of arresto mayor, suspension from public office,
Mutia, drinking from a glass profession or calling, including the right of suffrage,
...chanroblesvirtualawlibrarychanrobles virtual law and public
library censure.chanroblesvirtualawlibrary chanrobles virtual
law library
The fact that Mrs. Mutia's husband is a PC -An himself
does not detract from the credibility of Sgt. Abanes On August 23, 1986, the petitioner elevated the case
who took part in the Sgt. Abanes entrapment, took to this Court by way of the instant Petition for Review.
pictures, and testified about the incident in court. Sets. The thrust of the Petition is that the conclusions
Abanes Bonjoc and Labong were not the only public reached by the Sandiganbayan are not supported by
authorities privy to the operation. Capt. Pedro Pates the evidence. Moreover, the petitioner disputes the
was the one to whom Mrs. Mutia reported the accused applicability and/or correctness of the ruling of this
demand for money; it was he who broached the Idea Court in People v. Abesamis relied upon by the
of entrapping the accused; and it was Mador Fernando respondent
Pace who supplied the money and caused it to be court.chanroblesvirtualawlibrary chanrobles virtual law
marked with powder. It is inconceivable that an these library
commissioned and non-commissioned officers had lent
themselves to take part in an unholy cabal of falsely
As instructed by this Court, the Office of the Solicitor
incriminating a female government employee on the
General submitted its Comment on the Petition. In
mere urging of one of their
opposing the Petition, the Solicitor General maintains
associates.chanroblesvirtualawlibrary chanrobles
that only questions of law may be raised in the instant
virtual law library
case and the respondent court did not commit any
error of law. The Solicitor General also stresses therein
Just as unreasonable is the insinuation that Mrs. Mutia that the findings of fact made by the Sandiganbayan
had inveigled the accused to the canteen and resorted are supported by the evidence on record and deserve
to the insidious machination of planting money in her full faith and credit. The Solicitor General adds that the
hand in a simulated entrapment simply because she question of credibility is addressed mainly to the trier
thought the accused was not helping her in her of facts, in this case, the
application for appointment to a regular Sandiganbayan.chanroblesvirtualawlibrary chanrobles
item.chanroblesvirtualawlibrary chanrobles virtual law virtual law library
library
The parties submitted subsequent pleadings in support
Mrs. Florida Sevilla's presence on the same table with of their stand. Thereafter, the case was deemed
the complainant and the accused may be conceded. submitted for
But her testimony that she did not see anything that
decision.chanroblesvirtualawlibrary chanrobles virtual was the credibility of witnesses. Pursuant to Section 7
law library of Presidential Decree No. 1606, in relation to Section
2, Rule 45 of the Rules of Court, the findings of fact of
We find merit in the the Sandiganbayan are entitled to great respect and
Petition.chanroblesvirtualawlibrary chanrobles virtual only questions of laws (sic) may be raised to the
law library Supreme Court. Besides, well settled is the rule that
the findings of (the) trial court on credibility of
witnesses will not be disturbed unless much findings
Presidential Decree No. 1606, as amended, governs
overlook certain facts of substance and value which, if
the procedure through which cases originating from
considered might affect (the) results of (the) case. 9
the Sandiganbayan are elevated to this Court. 5 Under
Section 7 thereof, the decisions and final orders of the
Sandiganbayan are subject to review on certiorari by We believe that the exception to the general rule calls
the Supreme Court in accordance with Rule 45 of the for application in this
Rules of Court. This Court has ruled that only case.chanroblesvirtualawlibrary chanrobles virtual law
questions of law may be raised in a petition for library
certiorari under Rule 45, subject to certain rare
exceptions. 6 Simply stated, one way 7 through which The fundamental axiom underlying a criminal
a decision or final order of the Sandiganbayan can be prosecution is that before the accused may be
elevated to the Supreme Court is a Petition for convicted of any crime, his guilt must be proved
certiorari under Rule 45 and, as a general rule, only beyond reasonable doubt. Thus, if there are substantial
questions of law may be raised therein. The Solicitor facts which were overlooked by the trial court but
General cites the case of Peaverde v. which could alter the results of the case in favor of the
Sandiganbayan 8 in support of this accused, then such facts should be carefully taken into
view.chanroblesvirtualawlibrary chanrobles virtual law account by the reviewing
library tribunal.chanroblesvirtualawlibrary chanrobles virtual
law library
Going now to the question of law raised in the instant
Petition, We believe that the ruling in People v. In the case before Us, there are substantial facts and
Abesamis, contrary to the contention of the petitioner, circumstances Which appear to be favorable to the
is authority for the view that the allegation of facts, accused but which were not carefully considered by the
not the denomination of the offense by the prosecutor, Sandiganbayan. The failure to do so is most
determines the crime charged. Anent the argument on unfortunate considering that the Sandiganbayan is the
the correctness of the ruling, the petitioner had not first and last recourse of the accused before her case
succeeded in showing any cogent basis for reversing or reaches the Supreme Court where findings of fact are
modifying the generally conclusive and
same.chanroblesvirtualawlibrary chanrobles virtual law binding.chanroblesvirtualawlibrary chanrobles virtual
library law library

The remaining argument that the judgment of The essential ingredient of indirect bribery as defined
conviction is not supported by the evidence raises a in Article 211 of the Revised Penal Code 10 is that the
question of fact inasmuch as the resolution of the issue public officer concerned must have accepted the gift or
would require this Court to sort out and re-examine material consideration. There must be a clear intention
the evidence presented in the trial. Invoking the ruling on the part of the public officer to take the gift so
of this Court in Peaverde v. Sandiganbayan, the offered and consider the same as his own property
Solicitor General moves for the denial of the Petition. from then on, such as putting away the gift for
The Solicitor General adds that the credibility of safekeeping or pocketing the same. Mere physical
witnesses is a matter better left to the appreciation of receipt unaccompanied by any other sign,
the trial court, in this case, the circumstance or act to show such acceptance is not
Sandiganbayan.chanroblesvirtualawlibrary chanrobles sufficient to lead the court to conclude that the crime
virtual law library of indirect bribery has been committed. To hold
otherwise will encourage unscrupulous individuals to
Indeed, the general rule is that only questions of law frame up public officers by simply putting within their
may be raised in a petition of this character. The physical custody some gift, money or other
general rule admits exceptions, one of which is when property.chanroblesvirtualawlibrary chanrobles virtual
the findings of fact made by the trial court overlooked law library
certain facts of substance and value which, if
considered, might affect the result of the case. This Did the petitioner accept the supposed bribe
observation was made by this court in Peaverde v. money? chanrobles virtual law library
Sandiganbayan, cited by the Solicitor General, to wit -
The Sandiganbayan noted that the photographs of the
With respect to the allegation that there was error on entrapment show that the petitioner was accosted by
the part of respondent Sandiganbayan in concluding the PC soldiers after she accepted the marked money.
that petitioners conspired in the commission of the Against the evidence of the pro petition that the
offense, suffice it to say that the basis of its finding money was handed to petitioner by Mrs. Mutia under
the table is the assertion of petitioner that it was when With all these circumstances taken into account
she stood up that Mrs. Mutia suddenly placed altogether, We are left at a loss as to the guilt of the
something in her hand which she did not know to be accused. Overlooked by the Sandiganbayan, these
money and when she saw that it was money she threw facts and circumstances make out a good case for the
it away. 11An examination of the seven photographs petitioner.chanroblesvirtualawlibrary chanrobles virtual
that were allegedly taken immediately after the law library
passing of the money shows that the petitioner was
standing up when the PC agents apprehended her. This Accordingly, the Court holds that the guilt of the
corroborates petitioner's story. There was no picture petitioner in Criminal Case No. 9634 has not been
showing petitioner to be seated which should be her proved beyond reasonable doubt. She is, therefore,
position immediately after the money was handed to entitled to an
her under the table, which should be the case acquittal.chanroblesvirtualawlibrary chanrobles virtual
according to the version of the prosecution. 12 None of law library
the photographs show the petitioner in the process of
appropriating or keeping the money after it was
WHEREFORE, in view of the foregoing, the Decision of
handed to her. Two of the seven photographs that
the Sandiganbayan in Criminal Case No. 9634 is
were taken outside the canteen appear to be of no
hereby SET ASIDE. The petitioner Leonor Formilleza is
relevance to the
hereby ACQUITTED on the basis of reasonable doubt.
operation.chanroblesvirtualawlibrary chanrobles virtual
We make no pronouncement as to costs. This Decision
law library
is immediately
executory.chanroblesvirtualawlibrary chanrobles virtual
As the petitioner was admittedly handed the money, law library
this explains why she was positive for ultra-violet
powder. It is possible that she intended to keep the
SO ORDERED.
supposed bribe money or may have had no intention
to accept the same. These possibilities exist but We
are not certain.chanroblesvirtualawlibrary chanrobles Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr.,
virtual law library Cruz, Paras, Padilla, Bidin, Sarmiento, Cortes and
Grio-Aquino, JJ.,
concur.chanroblesvirtualawlibrary chanrobles virtual
However, what is revealing is that Mrs. Sevilla and
law library
Mrs. Dimaano were present around the table in the
canteen with the petitioner and Mrs. Mutia when the
latter allegedly handed the money to the petitioner. Melencio-Herrera and Feliciano, JJ., took no part.
There were other persons in the premises like the PC
agents whose Identities petitioner possibly did not
know. Under the circumstances and in such a public [G.R. Nos. 112761-65. February 3, 1997.]
place it is not probable that petitioner would have the
nerve to accept bribe money from Mrs. Mutia even PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
under the table. If the petitioner knew and was v. PORFERIO M. PEPITO, Accused-Appellant.
prepared to accept the money from Mrs. Mutia at the
canteen, the petitioner would not have invited her The Solicitor General for Plaintiff-Appellee.
officemate Mrs. Sevilla to join them. Mrs. Sevilla stated Dimnatang T . Saro for Accused-Appellant.
she did not see the alleged passing of the money. She
could not have seen the money as it was passed on
under the table or when, as petitioner said it was SYLLABUS
quickly placed in her hand when she stood up. What 1. REMEDIAL LAW; MOTION TO SUSPEND
Mrs. Sevilla is sure of is that when they were about to PROSECUTION; DENIAL THEREOF CANNOT BE
leave the canteen, two (2) men approached petitioner, QUESTIONED AFTER 15 YEARS OF TRIAL. On the
one of whom took pictures, and the petitioner shouted date scheduled for hearing of appellants motion to
at Mrs. Mutia, "What are you trying to do to suspend the proceedings in his cases pursuant to
me?" 13 The reaction of petitioner is far from one with Section 6 of PD 1082, his counsel failed to appear and
a guilty substantiate the allegations in his motion. The trial
conscience.chanroblesvirtualawlibrary chanrobles court proceeded with the hearing of the motion found
virtual law library no merit thereto and denied the same. Appellants
counsel received a copy of the Order of denial and was
Moral certainty, not absolute certainty, is needed to notified of the continuation of the hearing of said
support a judgment of conviction, Moral certainty is a cases. Appellant did not challenge the correctness of
certainty that convinces and satisfies the reason and this ruling by way of a petition for certiorari and
conscience of those who are to act upon a given prohibition with the Court of Appeals. Instead, he
matter. 14 Without this standard of certainty, it may proceeded to adduce evidence in his defense. After
not be said that the guilt of the accused in a criminal more than fifteen (15) years of trial of his cases,
proceeding has been proved beyond reasonable appellant cannot now impugn the Order of the court
doubt.chanroblesvirtualawlibrary chanrobles virtual law denying his motion to suspend his prosecution.
library
2. CRIMINAL LAW; MALVERSATION OF PUBLIC FUNDS; the City of Iligan, Philippines, and within the
ELABORATED. In cases of malversation of public jurisdiction of this Honorable Court, the said accused
funds, the mere failure of a public officer to have duly Porferio Pepito, Acting Postmaster of Iligan City, with
forthcoming any public funds or property with which he official station thereat, and as such accountable officer,
is chargeable, upon demand by any duly authorized responsible for funds collected and received by him by
officer, is prima facie evidence that he has put such reason of his position, did then and there wilfully,
funds or property to personal use. An accountable unlawfully and fraudulently and with grave abuse of
officer may be convicted of malversation even in the confidence, misappropriate, embezzle and take away
absence of direct proof of misappropriation so long as government funds in his possession in the amount of
there is evidence of shortage in his accounts which he __________ accused employing deceit, false
is unable to explain. Indeed, to justify conviction for manifestation and fraudulent misrepresentations,
malversation of public funds, the prosecution has only manipulated his records to make it appear that on the
to prove that the accused received public funds or month of __________, the Money Order Paid by him
property and that he could not account for them or did was __________, although his payments amounted
not have them in his possession and could not give a only to __________, making untruthful statements in
reasonable excuse for the disappearance of the same. a narration of facts and that by virtue of such
falsification in his record of payments, the said accused
3. ID.; ID.; ELEMENTS; ALL PRESENT. In the case successfully appropriated and converted to his own
at bar, all the elements of malversation of public funds personal use and benefit the sum of __________, to
are present, viz.: (a) the offender is a public officer, the damage and prejudice of the Bureau of Post,
(b) he had custody or control of the funds or property Manila, Philippines, in the aforementioned amount of
by reason of the duties of his office, (c) these funds or __________.
property were public funds or property for which he
was accountable, and (d) that he appropriated, took, Contrary to and in violation of Article 217 and Article
misappropriated or consented, or through 171 of the Revised Penal Code."cralaw virtua1aw
abandonment or negligence permitted another person library
to take them.
First, the facts. In a letter, 7 dated August 5, 1976,
4. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY CESAR L. JUAN, Regional Director of the Bureau of
SURRENDER; NOT APPRECIATED IN CASE AT BAR. Posts, Region X, Cagayan de Oro City, requested the
For the mitigating circumstance of voluntary surrender Office of the City Auditor, Iligan City, to audit the
to be appreciated, it must be proven that the accused accounts of appellant PORFERIO PEPITO, Acting
freely placed himself at the disposal of law enforcing Postmaster of Iligan City. Earlier, an audit team from
authorities. The records confirm that appellant was the Office of Regional Director Juan uncovered certain
arrested and detained for the crimes charged upon the anomalies regarding appellants postal money order
issuance of the Order for his arrest. Appellant was only transactions at the Iligan City Post Office. However,
released from custody upon the approval of his due to lack of time, the team failed to determine the
bailbond. Under the circumstances, appellant cannot exact figure involved in the anomaly. Hence, their
be credited with the mitigating circumstance of request for assistance from the City Auditors Office. 8
voluntary surrender.
Iligan City Auditor FRANCISCO APARECE immediately
formed an audit team composed of Assistant City
DECISION Auditor HONORIO N. PABLICO and Auditor ROMULO
PUNO, J.: ORBE. 9 They started their audit on August 19, 1976
Accused-appellant PORFERIO PEPITO appeals from the and concentrated on the postal money order
Decision of the trial court convicting him of transactions of appellant. They examined the cash in
Malversation of Public Funds through Falsification of appellants possession and verified the records of the
Official Documents on five (5) counts. postal money orders (PMOs), the payment of these
checks, and all depository funds of said post office in
Appellant, as Acting Postmaster of Iligan City, was government banks and in the Bureau of Posts, Manila,
charged with misappropriating government funds by covering the period from July 1, 1975 to August 9,
manipulating his records and making it appear that he 1976. 10
paid a number of postal money orders although no
such payments were made. Appellant was found short Asst. Auditor Pablico outlined the procedure for
in his cash accounts, as follows: (a) P23,643.73 for payment of postal money orders, thus: The postmaster
October 1975; 1 (b) P11.07 for December 1975; 2 (c) pays the postal money order (PMO) upon presentation
P7,283.59 for the month of January 1976; 3 (d) to him. The PMO paid cards, evidencing payment of
P30,052.25 for April 1976, and; 4 (e) P42,302.97 for the PMOs, are then kept by the postmaster as
May 1976. 5 custodian. The postmaster then prepares a list of the
PMOs he paid for a period of fifteen (15) days. Hence,
Except for the dates and amounts involved, appellant in a month, the postmaster prepares two (2) lists or
was similarly charged in five (5) separate Information records of payment: one for the first fifteen days of the
6 as follows:jgc:chanrobles.com.ph month, and another list for the next fifteen days. The
PMO paid cards and the lists are then sent to the
"That sometime during the month of __________, in central office of the Bureau of Posts in Manila for
safekeeping. A copy of each list is sent to the Regional abeyance pending final approval of his conditional
Office of the Bureau of Posts, another copy is sent to amnesty by the President of the Philippines.
the City Auditors Office and the last copy is retained
by the Postmaster himself. 11 The fiscal opposed 17 the motion on the ground that
the conditional amnesty of appellant was spurious for it
The audit team verified the total amount of PMO was issued by a person not duly authorized for the
payments appearing on the lists or records prepared purpose.
by appellant. They totalled the daily PMO payments of
appellant and cross-checked them with appellants Resolution of this motion was deferred for six (6) years
entry on the cash book. These reveal the total money with the subsequent reorganization of the judiciary and
order payments of appellant for the month. After the re-raffling of appellants cases. Finally, in an Order,
totalling the PMO payments of the postmaster per 18 dated September 9, 1988, appellants motion to
month, the audit team requested the Central Office of suspend the trial of the cases was set for hearing by
the Bureau of Posts in Manila, through its regional the new presiding Judge Tago M. Bantuas. However,
office, to furnish them the PMO paid cards, evidencing on the date set, appellants counsel failed to appear.
payments of the PMOs during the period covered by Judge Bantuas continued with the hearing of
their audit. 12 appellants motion and denied appellants motion to
suspend the trial. The continuation of the hearing of
Upon receipt of the PMO paid cards, the audit team the cases was set on January 10, 1989. Upon receipt
cross-checked the paid cards with the record of the of the Order and Notice of Hearing, appellants
PMOs allegedly paid by appellant. They discovered that counsel, Atty. Dimnatang T. Saro, filed a motion to
some PMOs were listed as paid but were not supported postpone the hearing due to conflict of schedule. 19
by paid cards. The audit team uncovered these Hearing was thus reset to February 7, 1989. 20
discrepancies for the months of October and
December, 1975 and for the months of January, April Again, a series of motions to defer the hearing was
and May, all of 1976. Based on the records, the total filed at appellants instance and granted by the trial
PMOs paid by appellant during the period covered by court. It was only on January 24, 1992 that the new
the audit was P494,720.85, but only P250,090.60 was presiding Judge Maximino Magno-Libre issued an Order
supported by PMO paid cards. The balance of two admitting the evidence offered by the prosecution. 21
hundred forty-four thousand six hundred thirty pesos On July 14, 1992, the defense commenced to adduce
and twenty-five centavos (P244,630.25) was its evidence and presented appellant as its lone
disallowed in audit for lack of supporting documents. witness.
Hence, the cash shortage in appellants account. 13
Appellant asked the auditors to double-check their On the stand, appellant denied there was shortage in
findings but the audit team came out with the same his cash accounts. After he was informed of the
result.chanroblesvirtual|awlibrary missing funds, he asked the audit team to re-examine
the records for his cash on hand has always tallied with
In a letter 14 dated February 25, 1977, the audit team his cashbook. His office had been subjected to various
informed appellant of the shortage in his cash regular audit examinations by different offices,
accounts. They demanded from appellant the namely: the Bureau of Treasury, the District Postal
immediate restitution of the missing funds and an Inspector, the Postal Audit Examiners and the Iligan
explanation why no criminal and administrative City Auditors Office. None of these offices found any
sanctions should be taken against him. 15 No action irregularity in his accountabilities. He urged that there
was taken by appellant to restore and explain his must have been some error or inaccuracy in the
shortage of funds. Hence, five (5) criminal conduct of the audit. He further charged that the
Informations for malversation of public funds through malversation cases were filed against him for political
falsification of official documents were filed against reasons for the late Governor Arsenio Quibranza had a
him. grudge against his son-in-law. 22

After the prosecution formally offered its evidence and Appellant admitted that when he was found short in his
rested its case on December 18, 1978, the cash accounts, he applied for amnesty under P.D.
continuation of the hearing for the presentation of the 1082. When he was informed by then Presiding Judge
defense evidence was suspended due to the transfer of Dalisay and Prosecutor Lagcao that he would have to
then Presiding Judge Leonardo I. Cruz to Angeles City. admit his guilt in his application for amnesty since
amnesty presupposes the commission of a crime, he
It was only after two (2) years, or on August 13, 1982, still proceeded with his application for his friends in
that continuation of the trial resumed for the Lanao del Sur assured him that his amnesty would be
presentation of the defense evidence. However, on the immediately processed and approved. His conditional
scheduled date of hearing, appellant, through counsel, amnesty has been granted but it is still pending final
filed a motion to suspend the trial 16 on the ground approval by the President for allegedly there is
that he has applied for and was conditionally granted someone in Manila who is blocking the grant of his
an amnesty under P.D. 1082 by the 11th Amnesty amnesty. 23
Commission of Marawi City, Lanao del Sur, for said
cases. Appellant prayed that pursuant to Section 6 of After trial, the court rendered judgment 24 on
P.D. 1082, further proceedings in his cases be held in September 8, 1993 finding appellant guilty of the
crime charged. The dispositive portion II. THE COURT A QUO ERRED IN CONVICTING THE
reads:jgc:chanrobles.com.ph ACCUSED-APPELLANT OF THE CRIMES OF
"WHEREFORE, in accordance with the provisions of MALVERSATION OF PUBLIC FUNDS THRU
Article(s) 217, 171, in relation to Article 48 of the FALSIFICATION OF OFFICIAL DOCUMENTS; AND
Revised Penal Code, the Court finds accused guilty on
all the five (5) counts he is charged (with) and is III. THE TRIAL COURT ERRED IN FAILING TO
hereby sentenced, to wit:jgc:chanrobles.com.ph CONSIDER VOLUNTARY SURRENDER IN FAVOR OF THE
ACCUSED-APPELLANT.
"1. As to Criminal Case No. 277, since the amount
misappropriated is P23,643.73, Accused should be First. Appellant charges that the trial court erred in
penalized according to the penalty provided in denying his motion to suspend the proceedings in
Paragraph No. 4 of Article 217 of the Revised Penal these cases pursuant to Section 6 of P.D. 1082. 25
Code which is reclusion temporal maximum Hence, the proceedings of the trial court are null and
to reclusion perpetua. Since according to Article 48 of void and the judgment of conviction against him
the Revised Penal Code, the penalty for the most should be vacated.
serious crime shall be applied in its maximum
period, Accused is meted out a penalty of reclusion We do not subscribe to appellants contention. On the
perpetua. date scheduled for hearing of his motion, appellants
counsel failed to appear and substantiate the
"2. As to Criminal Case No. 278, considering that the allegations in his motion. The trial court proceeded
amount misappropriated was P11.07, according to with the hearing of the motion, found no merit thereto
Article 48 of the Revised Penal Code, the penalty for and denied the same. Appellants counsel received a
the most serious crime shall be imposed in its copy of the Order of denial and was notified of the
maximum period, thus, Accused should be meted out continuation of the hearing of said cases. Appellant did
the penalty prescribed in Article 171 and in applying not challenge the correctness of this ruling by way of a
the provisions of the indeterminate sentence petition for certiorari and prohibition with the Court of
law, Accused should be meted the indeterminate Appeals. 26 Instead, he proceeded to adduce evidence
prison terms of six (6) years prision correccional to in his defense. After more than fifteen (15) years of
twelve (12) years prision mayor. trial of his cases, appellant cannot now impugn the
Order of the court denying his motion to suspend his
"3. As to Criminal Case No. 274, since the amount prosecution. 27
malversed was P7,283.79, Accused should be
penalized according to Paragraph No. 3 of Article 217 Second. Appellant contends that there was no clear
of the Revised Penal Code and should be meted out an showing that he misappropriated the missing funds.
indeterminate penalty of ten (10) years and one (1) Allegedly, his office has been regularly audited by
day of prision mayor to fourteen (14) years and eight different agencies and none has found him short in his
(8) months of reclusion temporal. accountabilities. He insists on the inaccuracy of the
audit report of the City Auditors Office which
"4. As to Criminal Case No. 275, considering that the examined his cash and accounts.
amount misappropriated is P30,052.20, the penalty
imposed should be akin to the penalty prescribed in We find no merit in the contention. It is settled that in
Criminal Case No. 277 mentioned in Paragraph 1 cases of malversation of public funds, the mere failure
hereof, which is reclusion perpetua; and of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon
"5. As to Criminal Case No. 276, considering that the demand by any duly authorized officer, is prima facie
amount subject of malversation is P37,558.30, then evidence that he has put such funds or property to
the necessary penalty of reclusion perpetua should personal use. 28 An accountable officer may be
also be meted out against accused. convicted of malversation even in the absence of direct
"Finally, Accused is also hereby ordered to pay the proof of misappropriation so long as there is evidence
government the total sum of P98,549.99, which is the of shortage in his accounts which he is unable to
aggregate government funds actually misappropriated, explain. 29 Indeed, to justify conviction for
for restitution in accordance with Article 104 of the malversation of public funds, the prosecution has only
Revised Penal Code. to prove that the accused received public funds or
property and that he could not account for them or did
SO ORDERED."cralaw virtua1aw library not have them in his possession and could not give a
reasonable excuse for the disappearance of the same.
Hence this appeal where appellant contends 30
that:chanrob1es virtual 1aw library
I. THE TRIAL COURT ERRED IN DENYING THE In the case at bar, all the elements of malversation of
ACCUSED-APPELLANTS MOTION TO SUSPEND THE public funds are present, viz: (a) the offender is a
PROCEEDINGS OF THE CASES PENDING FINAL ACTION public officer, (b) he had custody or control of the
ON THE CONDITIONAL AMNESTY GRANTED TO THE funds or property by reason of the duties of his office,
APPELLANT; (c) these funds or property were public funds or
property for which he was accountable, and (d) that he
appropriated, took, misappropriated or consented, or
through abandonment or negligence permitted another
person to take them. 31 Appellant, as Acting
Postmaster of Iligan City has custody of the funds of
his Office. A portion of these funds was used in the
payment of postal money orders (PMOs) presented to
him. As evidence of these payments, the Postmaster
accomplishes the PMO paid cards and makes a list of
the PMOs he paid for a given period. These lists and
paid cards are then sent to the Central Office of the
Bureau of Post for safekeeping. An audit of the PMO
transactions of appellant, however, disclosed that
some of his PMO payments were not supported by PMO
paid cards.

Appellants assertion that the audit made by the Office


of Iligan City Auditor was inaccurate remains an
unsubstantiated allegation. Although appellant insisted
on this alleged inaccuracy during the trial, he cannot
point to the specific procedure where the auditors
erred in examining his accountabilities. 32 Noticeably,
appellant did not present any document to show that
the audit of other government agencies covered also
the PMO transactions of the post office for the same
period covered by the audit of the City Auditor.

Appellant also faults the trial court for considering as


an admission of guilt his application for amnesty under
P.D. 1082. Regardless of this consideration, however,
the totality of the prosecution evidence has proved the
guilt of appellant beyond reasonable doubt. The
testimonies of the auditors and the documentary
evidence adduced clearly proved appellants shortage
of funds and his corresponding liability therefor as an
accountable officer. The testimonial and documentary
evidence of the prosecution were not successfully
rebutted by the defense.

Finally, appellant contends that the trial court failed to


consider in his favor the mitigating circumstance of
voluntary surrender. Allegedly, he voluntarily
surrendered to the court of justice and posted bail for
his provisional liberty before a warrant for his arrest
could be issued.

The rule is clear that for the mitigating circumstance of


voluntary surrender to be appreciated, it must be
proven that the accused freely placed himself at the
disposal of law enforcing authorities. The records
confirm that appellant was arrested and detained by
the INP Station of Marawi City for the crimes charged
upon the issuance of the Order 33 for his arrest on
February 9, 1978. Appellant was only released from
custody 34 upon the approval of his bailbond on March
27, 1978. Under the circumstances, appellant cannot
be credited with the mitigating circumstance of
voluntary surrender.

IN VIEW WHEREOF, the Decision of the trial court


convicting appellant PORFERIO M. PEPITO for five (5)
counts of Malversation of Public Funds Through
Falsification of Official Documents is AFFIRMED. Costs
against Appellant.
SO ORDERED.
Regalado, Romero, Mendoza and Torres, Jr., JJ.,
concur.
[G.R. NO. 150129 April 6, 2005] Upon motion for reconsideration, the Sandiganbayan
NORMA A. ABDULLA, Petitioners, v. PEOPLE OF amended appellant's sentence by deleting the
THE PHILIPPINES, Respondent. temporary special disqualification imposed upon her,
thus:
DECISION
GARCIA, J.: Premises considered, the decision of this Court dated
Convicted by the Sandiganbayan1 in its Crim. Case No. August 25, 2000, is hereby amended to the effect that
23261 of the crime of illegal use of public funds the penalty of temporary special disqualification for six
defined and penalized under Article 220 of the Revised (6) years is hereby cancelled and set aside. Hence, the
Penal Code, or more commonly known as technical last paragraph of said decision shall read as follows:
malversation, appellant Norma A. Abdulla is now
before this Court on Petition for Review under Rule 45.
Accused Abdulla is hereby convicted of the crime
charged and is hereby meted a fine of three thousand
Along with Nenita Aguil and Mahmud Darkis, appellant pesos, pursuant to the second paragraph of Article 220
was charged under an Information which pertinently of the Revised Penal Code. She shall also pay the costs
reads: of the suit.

That on or about November, 1989 or sometime prior or SO ORDERED.3


subsequent thereto, in Jolo, Sulu, Philippines and
within the jurisdiction of this Honorable Court, the
Still dissatisfied, appellant, now before this Court,
above-named accused: NORMA A. ABDULLA and
persistently pleas innocence of the crime charged.
NENITA P. AGUIL, both public officers, being then the
President and cashier, respectively, of the Sulu State
College, and as such by reason of their positions and The record shows that the prosecution dispensed with
duties are accountable for public funds under their the presentation of testimonial evidence and instead
administration, while in the performance of their opted to mark in evidence the following exhibits:
functions, conspiring and confederating with MAHMUD
I. DARKIS, also a public officer, being then the EXHIBITS DESCRIPTION
Administrative Officer V of the said school, did then
and there willfully, unlawfully and feloniously, without
"A" Audit Report which is denominate
lawful authority, apply for the payment of wages of
Commission on Audit, Region IX, Zam
casuals, the amount of FORTY THOUSAND PESOS
Office of the Special Audit Team, CO
(P40,000.00), Philippine Currency, which amount was
consisting of nine (9) pages;
appropriated for the payment of the salary differentials
of secondary school teachers of the said school, to the
damage and prejudice of public service. "B" Certified Xerox copy of a letter from th
and Management through Secretary G
the President of the Sulu State College
CONTRARY TO LAW.

"C" Certified copy of the DBM Advice of Allo


Appellant's co-accused, Nenita Aguil and Mahmud
Darkis, were both acquitted. Only appellant was found
guilty and sentenced by the Sandiganbayan in its "C-1" The entry appearing in Exhibit "C" w
decision2 dated August 25, 2000 (promulgated on release partial funding for the conve
September 27,2000), as follows: School Teacher positions to Instructor
lump-sum appropriation authorized on p
the current savings under personal serv
WHEREFORE, premises considered, accused Mahmud
Darkis and Nenita P. Aguil are hereby acquitted of the
crime charged. The cash bond posted by each of the "D" Manifestation filed by accused Norm
said accused for their provisional liberty are hereby November 24, 1997 consisting of two
ordered returned to each of them subject to the usual pages 225 to 226 of the record;
auditing and accounting procedures.
"E" Motion filed by the accused through A
Accused Norma Abdulla is hereby convicted of the February 9, 1998 found on pages 3
crime charged and is hereby meted a fine of three records of this case; and
thousand pesos, pursuant to the second paragraph of
Article 220 of the Revised Penal Code. She is further "F" Prosecution's Opposition to the motion
imposed the penalty of temporary special dated February 11, 1998, consistin
disqualification for a period of six (6) years. She shall appearing in pages 383 to 385 of the re
also pay the costs of the suit.
Thereafter, the prosecution immediately made its
SO ORDERED. Formal Offer of Evidence, and, with the admission
thereof by the court, rested its case.
The defense proceeded to adduce its evidence by In this recourse, appellant questions the judgment of
presenting four (4) witnesses, namely, accused conviction rendered against her, claiming that the
Mahmud Darkis, who was the Administrative Officer of Sandiganbayan erred:
Sulu State College, Jolo, Sulu; accused Nenita Aguil,
the Cashier of the same College; appellant Norma "I
Abdulla herself, who was the College President; and
Gerardo Concepcion, Jr., Director IV and Head of the
XXX ON A QUESTION OF LAW IN INVOKING THE
Department of Budget and Management, Regional
PRESUMPTION OF UNLAWFUL INTENT DESPITE
Office No. 9, Zamboanga City.
EVIDENCE TO THE CONTRARY.

The undisputed facts, as found by the Sandiganbayan


II
itself:

XXX ON A QUESTION OF LAW IN HOLDING THAT THE


The evidence on record xxx show that the request for
PROSECUTION WAS ABLE TO PROVE THAT
the conversion of thirty-four (34) secondary school
PETITIONER COMMITTED TECHNICAL MALVERSATION
teachers to Instructor I items of the Sulu State
UNDER ARTICLE 220 OF THE REVISED PENAL CODE".
College, through its former president, accused Abdulla,
was approved by the Department of Budget and
Management (DBM); that consequent to the approval The Court grants the appeal.
of the said request, was the allotment by the DBM of
the partial funding for the purpose of paying the salary So precious to her is the constitutional right of
differentials of the said thirty-four (34) secondary presumption of innocence unless proven otherwise that
school teachers in the amount of forty thousand pesos appellant came all the way to this Court despite the
(P40,000.00) sourced from the "lump sum fact that the sentence imposed upon her by the
appropriation authorized on page 370 of R.A. 6688 Sandiganbayan was merely a fine of three thousand
[should be page 396 of RA 6688 (General pesos, with no imprisonment at all. And recognizing
Appropriations Act January 1 - December 31, 1989)] the primacy of the right, this Court, where doubt
and the current savings under personal services of said exists, has invariably resolved it in favor of an
school (Exhibits `B,' `C' and `C-1;' Exhibit `18,' pp. accused.
32-35; tsn, hearing of September 22, 1998, pp. 6 to
25 and 26); that out of the thirty-four (34) secondary In a judgment of acquittal in favor of two (2) accused
school teachers, only the six (6) teachers were entitled charged of murder in People v. Abujan,5 the Court
and paid salary differentials amounting to P8,370.00, wrote:
as the twenty-eight (28) teachers, who were occupying
Teacher III positions, were no longer entitled to salary
differentials as they were already receiving the same We are enraged by the shocking death suffered by the
salary rate as Instructor I (Exhibit `A,' p. 4, par. 1; victim and we commiserate with her family. But with
Exhibits `1' to `6,' inclusive; Exhibit `14-A;' tsn, seeds of doubt planted in our minds by unexplained
hearing of September 22, 1998, pp. 6 to 8; tsn, circumstances in this case, we are unable to accept the
hearing of September 23, 1998, pp. 10-11); and that lower court's conclusion to convict appellants. We
the amount of P31,516.16, taken from the remaining cannot in conscience accept the prosecution's evidence
balance of the P40,000.00 allotment, was used to pay here as sufficient proof required to convict appellants
the terminal leave benefits of the six (6) casuals of murder. Hence, here we must reckon with
(Exhibits `D' and `E;' Exhibits `7' to `12,' inclusive; a dictum of the law, in dubilis reus est absolvendus. All
tsn, hearing of September 22, 1998, pp. 13 and 34; doubts must be resolved in favor of the accused.
tsn, hearing of September 23, 1998, p. 13). Nowhere is this rule more compelling than in a case
involving the death penalty for a truly humanitarian
Court would rather set ten guilty men free than send
Accused Abdulla was able to sufficiently justify the one innocent man to the death row. Perforce, we must
payment of the salary differentials of only six (6), out declare both appellants not guilty and set them free.
of the thirty-four (34) teachers, when she testified that
out of the thirty-four (34) teachers, twenty-eight (28)
were already holding the position of Secondary School Similarly, the Court had to acquit an accused charged
Teacher III receiving the salary of Instructor I; and of rape in People v. De Jesus6 on ground of reasonable
that the remaining six (6) were still holding Secondary doubt, to wit:
Teacher II positions and therefore receiving a salary
lower than that of Instructor I so they were paid salary With seeds of doubt planted in our minds by the
differentials (tsn, hearing of September 23, 1998, pp. conduct of proceedings on record, we are unable to
8, 10 and 11). In fact, the notarized audit investigation accept the lower court's conclusion to convict
report (Exhibit `A,' p. 4, 1st par.) and the Joint appellant. His conviction is founded on the sole
Resolution of the Office of the Ombudsman, Mindanao testimony of Agnes, but though a credible witness
(Exhibit `14-a'), also point that said act of the accused despite her mental retardation, she showed
is justified. unnecessary dependence on her mother when
identifying the father of her child. Maternal coaching
taints her testimony. That her mother had to be
ordered by the judge to go outside the courtroom
impresses us as significant. We are unable to accept as knowledge and with criminal intent, `and it is
sufficient the quantum of proof required to convict incumbent upon them to rebut such presumption.
appellant of rape based on the alleged victim's sole 'Further, the same court also ruled that when the law
testimony. Hence, here we must fall back on a truism plainly forbids an act to be done, and it is done by a
of the law, in dubilis reus est absolvendus. All doubts person, the law implies the guilty intent, although the
must be resolved in favor of the accused. offender was honestly mistaken as to the meaning of
the law which he had violated (State v. McBrayer, 98
WHEREFORE, the assailed decision dated May 26, NIC 619; Sing Cong Bieng and Co Kong, 30 Phil. 577,
2000, of the Regional Trial Court of Camiling, Tarlac, 580; Hermenigildo Bautista, CA 40 O.G. 5th Supp.
Branch 68, is REVERSED and SET ASIDE. Appellant 139). If the act is criminal, then criminal intent is
RUBEN LUMIBAO is ACQUITTED of the charge of rape presumed (Francisco y Martin, CA 53 O.G. 1450).
on reasonable doubt.
In the case at bar, inasmuch as the prosecution had
The Court's faithful adherence to the constitutional proved that a criminal act was committed by the
directive imposes upon it the imperative of closely accused under Article 220 of the Revised Penal Code,
scrutinizing the prosecution's evidence to assure itself criminal intent was presumed. The accused did not
that no innocent person is condemned and that present any evidence to prove that no such criminal
conviction flows only from a moral certainty that guilt intent was present when she committed the unlawful
has been established by proof beyond reasonable act of technical malversation. Hence, the presumption
doubt. In the words of People v. Pascua7 : that the unlawful act of the accused was done with
criminal intent had been satisfactorily proven by the
prosecution (Sec. 5[b], Rule 131).
Our findings in the case at bar should not create the
mistaken impression that the testimonies of the
prosecution witnesses should always be looked at with The Court must have to part ways with the
askance. What we are driving at is that every accused Sandiganbayan in its reliance on Section 5 (b) of Rule
is presumed innocent at the onset of an indictment. 131 as basis for its imputation of criminal intent upon
But, it has often happened that at the commencement appellant.
of a trial, people's minds, sometimes judges too, would
have already passed sentence against the accused. An For sure, the procedural rule relied upon does not
allegation, or even any testimony, that an act was apply at all to this case. Indeed, clear it is from its very
done should never be hastily accepted as proof that it language that the disputable presumption of the
was really done. Proof must be closely examined under existence of unlawful or criminal intent presupposes
the lens of a judicial microscope and only proof beyond the commission of an unlawful act. Thus, intent to kill
reasonable doubt must be allowed to convict. Here, is presumed when the victim dies because the act of
that quantum of proof has not been satisfied. killing clearly constitutes an unlawful act. In People v.
Gemoya,9 the Court held:
We shall now assay appellant's guilt or innocence in
the light of the foregoing crucibles. The intent to kill is likewise presumed from the fact of
death, unless the accused proves by convincing
In her first assigned error, appellant contends that the evidence that any of the justifying circumstances in
prosecution failed to adduce evidence to prove criminal Article 11 or any of the exempting circumstances in
intent on her part. When she raised this issue in her Article 12, both of the Revised Penal Code, is present.
Motion for Reconsideration before the Sandiganbayan,
that court, invoking Section 5 (b), Rule 131 of the In fact, in a Resolution penned by Justice Romeo
Rules of Court, ruled in a Resolution8promulgated on Callejo, Sr. in People v. Delim, 10 the Court en
September 17, 2001, as follows: banc categorically stated:

Anent the allegation of the movant/accused that good If the victim dies because of a deliberate act of the
faith is a valid defense in a prosecution for malefactor, intent to kill is conclusively presumed.
malversation as it would negate criminal intent on the (Emphasis supplied).
part of the accused which the prosecution failed to
prove, attention is invited to pertinent law and rulings Similarly, intent to gain or animus lucrandi is
of the Supreme Court on the matter. presumed when one is found in possession of stolen
goods precisely because the taking of another's
Sec. 5(b) of the Rule 131, Rules of Court, provides, property is an unlawful act. So it is that in People v.
`That an unlawful act was done with an unlawful Reyes,11the Court held:
intent. 'Hence, dolo may be inferred from the unlawful
act. In several cases (Tria, 17 Phil. 303; Ballesteros, Accused-appellant's contention that the animus
25 Phil. 634; Sia Tioan, 54 Phil. 52; Cueto, 38 Phil. lucrandi was not sufficiently established by the
935; Cubelo, 106 Phil. 496), the Supreme Court ruled prosecution is devoid of merit. Animus lucrandi or
that `When it has been proven that the appellants intent to gain is an internal act which can be
committed the unlawful acts alleged, it is properly established through the overt acts of the offender.
presumed that they were committed with full Although proof of motive for the crime is essential
when the evidence of the robbery is circumstantial, The Sandiganbayan's improper reliance on Sec. 5(b) of
intent to gain or animus lucrandi may be presumed Rule 131 does not save the day for the prosecution's
from the furtive taking of useful property pertaining to deficiency in proving the existence of criminal intent
another, unless special circumstances reveal a nor could it ever tilt the scale from the constitutional
different intent on the part of the perpetrator. The presumption of innocence to that of guilt. In the
intent to gain may be presumed from the proven absence of criminal intent, this Court has no basis to
unlawful taking. In the case at bar, the act of taking affirm appellant's conviction.
the victim's wristwatch by one of the accused
Cergontes while accused-appellant Reyes poked a knife x x x. This calls to mind the oft-repeated maxim
behind him sufficiently gave rise to the presumption. `Actus non facit reum, nisi mens sit rea,' which
expounds a basic principle in criminal law that a crime
The presumption of criminal intent will not, however, is not committed if the mind of the person performing
automatically apply to all charges of technical the act complained of be innocent. Thus, to constitute
malversation because disbursement of public funds for a crime, the act must, except in certain crimes made
public use is per se not an unlawful act. Here, such by statute, be accompanied by a criminal intent.
appellant cannot be said to have committed an It is true that a presumption of criminal intent may
unlawful act when she paid the obligation of the Sulu arise from proof of the commission of a criminal act;
State College to its employees in the form of terminal and the general rule is that if it is proved that the
leave benefits such employees were entitled to under accused committed the criminal act charged, it will be
existing civil service laws. Thus, in a similar case,12 the presumed that the act was done with criminal intention
Court reversed a conviction for technical malversation and that it is for the accused to rebut this
of one who paid out the wages of laborers: presumption. But it must be borne in mind that the act
from which such presumption springs must be a
There is no dispute that the money was spent for a criminal act In the case at bar, the act is not criminal.
public purpose - payment of the wages of laborers Neither can it be categorized as malum prohibitum, the
working on various projects in the municipality. It is mere commission of which makes the doer criminally
pertinent to note the high priority which laborers' liable even if he acted without evil intent.14
wages enjoy as claims against the employers' funds
and resources. The second assigned error refers to the failure of the
prosecution to prove the existence of all the essential
In the absence of any presumption of unlawful intent, elements of the crime of technical malversation
the burden of proving by competent evidence that defined in Article 220 of the Revised Penal Code, which
appellant's act of paying the terminal leave benefits of are:
employees of the Sulu State College was done with
criminal intent rests upon the prosecution. "1. That the offender is a public officer;

The Court notes the odd procedure which the "2. That there is public fund or property under his
prosecution took in discharging its undertaking to administration;
prove the guilt of appellant beyond reasonable doubt.
As it is, the prosecution did not present any single "3. That such public fund or property has been
witness at all, not even for the purpose of identifying appropriated by law or ordinance;
and proving the authenticity of the documentary
evidence on which it rested its case. The prosecution
"4. That he applies the same to a public use other than
definitely failed to prove unlawful intent on the part of
that for which such fund or property has been
appellant.
appropriated by law or ordinance."15

Settled is the rule that conviction should rest on the


Appellant contends that the prosecution was unable to
strength of evidence of the prosecution and not on the
prove the second and third elements of the crime
weakness of the defense. The weakness of the defense
charged.16 She argued that the public funds in
does not relieve it of this responsibility. And when the
question, having been established to form part of
prosecution fails to discharge its burden of establishing
savings, had therefore ceased to be appropriated by
the guilt of an accused, an accused need not even offer
law or ordinance for any specific purpose.
evidence in his behalf. A judgment of conviction must
rest on nothing less than moral certainty. It is thus
required that every circumstance favoring his The Court finds merit in appellant's submission.
innocence must be duly taken into account. The proof
against him must survive the test of reason and the As found by the Sandiganbayan no less, the amount of
strongest suspicion must not be permitted to sway forty thousand pesos (P40,000.00) originally intended
judgment. There must be moral certainty in an to cover the salary differentials of thirty four (34)
unprejudiced mind that it was accused-appellant who secondary school teachers whose employment status
committed the crime. Absent this required quantum of were converted to Instructor I, were sourced from the
evidence would mean exoneration for accused- "lump sum appropriation" authorized on page 370
appellant.13 (should be page 396) of R.A. 6688 and the current
savings under personal services of said school.17
The pertinent portions of RA 6688 are reproduced of Lands, -------- -------
hereunder: Construction,
Rehabilitation
"K.2 Sulu State College or Renovation
of Buildings
and Structures,
For general administration, administration of personnel
and Acquisition
benefits, salary standardization, higher education and
of Equipment
secondary education services, including locally-funded
project as indicated hereunder '. . 'P 17,994,000 Total New P 6,873,000 P 2,509,000 P 8,612,000 P17,994.00
Appropriations,
Sulu State ========== ========== ========== =======
New Appropriations, by Function/Project College

Current Operating
xxx

Expenditures
New Appropriations, by Object of Expenditures

-----------------------------------
(In Thousand Pesos)
A. Functions/Locally-Funded Project
Personal Maintenance Capital Outlays Total
Current Operating Expenditures
Services and Other
Personal Services
Operating - - - - - - - - - -- - - - - - - - - -
Total Salaries of Permanent Personnel 4,148
- - - - - - - - - - Expenses --------- ---------
Total Salaries and Wages of Contractual and Emergency 146
----------
Personnel
---- -- -- --
--------- Total Salaries and Wages 4,294
Other Compensation
nctions Honoraria and Commutable Allowances 185
Cost of Living Allowances 1,292
General P 1,605,000 P 1,196,000 P Employees
P 2,801,000 Compensation Insurance Premiums 44
nistration Pag-I.B.I.G. Contributions 35
Support Medicare Premiums 18
ces Merit Increases 20
Salary Standardization 37
608,000 608,000and Incentives
Bonuses 511
nistration Others 437
Personnel
fits
Total Other Compensation 2,579
O1 Total Personal Services 6,873
Salary 57,000 57,000
dardization
The Court notes that there is no particular
appropriation for salary differentials of secondary
Higher 1,967,000 577,000 2,544,000
school teachers of the Sulu State College in RA 6688.
ation
The third element of the crime of technical
ces
malversation which requires that the public fund used
should have been appropriated by law, is therefore
Secondary 2,636,000 736,000 3,372,000 absent. The authorization given by the Department of
ation Budget and Management for the use of the forty
ces - - - - - - - - - -- - - - - - - - - - - - - - - - -thousand
- -- pesos (P40,000.00) allotment for payment of
-------- ------- - - - - - - - salary differentials of 34 secondary school teachers is
, 6,873,000 2,509,000 9,382,000 not an ordinance or law contemplated in Article 220 of
tions the Revised Penal Code.
- - - - - - - - - -- - - - - - - - - - ---- -- -- --
-------- ------- - - - - - - - The Court has unequivocably ruled in Parungao v.
Sandiganbayan18 that in the absence of a law or
Locally- ordinance appropriating the public fund allegedly
ed Project technically malversed (in that case, the absence of any
law or ordinance appropriating the CRBI fund for the
concreting of Barangay Jalung Road), the use thereof
Acquisition - - - - - - - - - - - - - - - - - - - - 8,612,000 8,612,000 for another public purpose (there, for the payment of
-------- ------- wages of laborers working on projects other than the
ovements - - - - - - - - - - - - - - - - -Barangay
- -- Jalung Road) will not make the accused
guilty of violation of Article 220 of the Revised Penal the demand to the National Bureau of Investigation
Code. which set up an entrapment. Because Tan was hard
put to raise the required amount only P2,000.00 in
Appellant herein, who used the remainder of the forty bills were marked by the NBI which had to supply one-
thousand pesos (P40,000.00) released by the DBM for half thereof. The entrapment succeeded and an
salary differentials, for the payment of the terminal information was filed with the Sandiganbayan in
leave benefits of other school teachers of the Sulu Criminal Case No. 7393 which reads as
State College, cannot be held guilty of technical follows:jgc:chanrobles.com.ph
malversation in the absence, as here, of any provision
in RA 6688 specifically appropriating said amount for "The undersigned Tanodbayan Special Prosecutor
payment of salary differentials only. In fine, the third accuses LAURO G. SORIANO, for Violation of Section 3,
and fourth elements of the crime defined in Article 220 paragraph (b) of Republic Act 3019, otherwise known
of the Revised Penal Code are lacking in this case. as the Anti-Graft and Corrupt Practices Act, committed
Acquittal is thus in order. as follows:chanrob1es virtual 1aw library

That on or about the 21st day of March 1983, at


WHEREFORE, the petition is hereby GRANTED.
Quezon City, Philippines, and within the jurisdiction of
Accordingly, the appealed decision and resolution of
this Honorable Court, the above-named accused, a
the Sandiganbayan in Criminal Case No. 23261
public officer, being then and still is an Assistant City
are REVERSED and SET ASIDE and
Fiscal of the Quezon City Fiscals Office, detailed as the
appellant ACQUITTED of the crime charged against
Investigating Fiscal in the case of MARIANNE Z.
her. The cash bond posted by appellant for her
LACAMBRA versus THOMAS N. TAN, docketed as I.S.
provisional liberty, if any, is ordered returned to her
No. 82-2964, for Qualified Theft, taking advantage of
subject to the usual auditing and accounting
his official position and with grave abuse of authority,
procedures.
did then and there willfully, unlawfully and feloniously
demand and request from Thomas N. Tan the amount
SO ORDERED. of FOUR THOUSAND PESOS (P4,000.00) Philippine
Currency, and actually received from said Thomas N.
Tan the amount of TWO THOUSAND PESOS
(P2,000.00) Philippine Currency, in consideration for a
[G.R. No. L-65952. July 31, 1984.] favorable resolution by dismissing the above-
mentioned case, wherein said accused has to intervene
LAURO G. SORIANO, JR., Petitioners, v. THE in his official capacity as such Investigating Fiscal.
HONORABLE SANDIGANBAYAN AND THE PEOPLE
OF THE PHILIPPINES, Respondents. CONTRARY TO LAW.

Dakila F. Castro for Petitioner. Manila, Philippines, March 22, 1983.

The Solicitor General for Respondents. (SGD.) EDGARDO C. LABELLA

Special Prosecutor"
DECISION
After trial the Sandiganbayan rendered a decision with
the following dispositive portion:jgc:chanrobles.com.ph
ABAD SANTOS, J.:
"WHEREFORE, the Court finds accused Lauro G.
Soriano, Jr., GUILTY beyond reasonable doubt, as
The principal issue in this petition to review a decision Principal, in the Information, for Violation of Section 3,
of the Sandiganbayan is whether or not the preliminary paragraph (b), of Republic Act No. 3019, as amended,
investigation of a criminal complaint conducted by a otherwise known as the Anti-Graft and Corrupt
Fiscal is a "contract or transaction" so as to bring it Practices Act, and hereby sentences him to suffer the
within the ambit of Section 3 (b) of Republic Act No. indeterminate penalty of imprisonment ranging from
3019, otherwise known as the Anti-Graft and Corrupt SIX (6) YEARS and ONE (1) MONTH, as minimum, to
Practices Act. NINE (9) YEARS and ONE (1) DAY, as maximum; to
suffer perpetual disqualification from public office; to
The factual background is as follows:chanrob1es suffer loss of all retirement or gratuity benefits under
virtual 1aw library any law; and, to pay costs.

Thomas N. Tan was accused of qualified theft in a "Of the sum of Two Thousand Pesos (P2,000.00) used
complaint lodged with the City Fiscal of Quezon City. in the entrapment operations, and which was fully
The case was docketed as I.S. No. 82-2964 and recovered from the accused, One Thousand Pesos
assigned for investigation to the petitioner who was (P1,000.00) shall be returned to private complainant
then an Assistant City Fiscal. In the course of the Thomas N. Tan, and the other half, to the National
investigation the petitioner demanded P4,000.00 from Bureau of Investigation, National Capital
Tan as the price for dismissing the case. Tan reported Region."cralaw virtua1aw library
proved, if at all, is Direct Bribery." (Petition, p. 5.)
A motion to reconsider the decision was denied by the
Sandiganbayan; hence the instant petition. Upon the other hand, the respondents
claim:jgc:chanrobles.com.ph
The petitioner has raised several legal questions plus
one factual question. The latter is to the effect that the "A reading of the above-quoted provision would show
Sandiganbayan convicted him on the weakness of his that the term transaction as used thereof is not
defense and not on the strength of the prosecutions limited in its scope or meaning to a commercial or
evidence, This claim is not meritorious not only business transaction but includes all kinds of
because it is not for Us to review the factual findings of transaction, whether commercial, civil or
the court a quo but also because a reading of its administrative in nature, pending with the
decision shows that it explicitly stated the facts government. This must be so, otherwise, the Act would
establishing the guilt of the petitioner and the have so stated in the Definition of Terms, Section 2
competence of the witnesses who testified against him. thereof. But it did not, perforce leaving no other
interpretation than that the expressed purpose and
As stated above, the principal issue is whether or not object is to embrace all kinds of transaction between
the investigation conducted by the petitioner can be the government and other party wherein the public
regarded as a "contract or transaction" within the officer would intervene under the law." (Comment, p.
purview of Sec. 3 (b) of R.A. No. 3019. On this issue 8.)
the petition is highly impressed with merit.
It is obvious that the investigation conducted by the
The afore-mentioned provision reads as petitioner was not a contract. Neither was it a
follows:jgc:chanrobles.com.ph transaction because this term must be construed as
analogous to the term which precedes it. A transaction,
"SEC. 3. Corrupt practices of public officers. In like a contract, is one which involves some
addition to acts or omissions of public officers already consideration as in credit transactions and this element
penalized by existing law, the following shall constitute (consideration) is absent in the investigation conducted
corrupt practices of any public officer and are hereby by the petitioner.
declared to be unlawful:chanrobles.com : virtual law
library In the light of the foregoing, We agree with the
petitioner that it was error for the Sandiganbayan to
(a) . . . have convicted him of violating Sec. 3 (b) of R.A. No.
3019.
(b) Directly or indirectly requesting or receiving any
gift, present, share, percentage, or benefit, for himself The petitioner also claims that he cannot be convicted
or for any other person, in connection with any of bribery under the Revised Penal Code because to do
contract or transaction between the Government and so would be violative of his constitutional right to be
any other party, wherein the public officer in his official informed of the nature and cause of the accusation
capacity has to intervene under the law."cralaw against him. Wrong. A reading of the information
virtua1aw library which has been reproduced herein clearly makes out a
case of bribery so that the petitioner cannot claim
The petitioner states:jgc:chanrobles.com.ph deprivation of the right to be informed.

"Assuming in gratia argumenti, petitioners guilt, the IN THE LIGHT OF THE FOREGOING, the judgment of
facts make out a case of Direct Bribery defined and the Sandiganbayan is modified in that the petitioner is
penalized under the provision of Article 210 of the deemed guilty of bribery as defined and penalized by
Revised Penal Code and not a violation of Section 3, Article 210 of the Revised Penal Code and is hereby
subparagraph (b) of Rep. Act 3019, as amended. sentenced to suffer an indeterminate penalty of six (6)
months of arresto mayor, as minimum, to two (2)
"The evidence for the prosecution clearly and years of prision correccional, as maximum, and to pay
undoubtedly support, if at all, the offense of Direct a fine of Two Thousand (P2,000.00) Pesos. The rest of
Bribery, which is not the offense charged and is not the judgment is hereby affirmed. Costs against the
likewise included in or is necessarily included in the petitioner.chanrobles virtual lawlibrary
offense charged, which is for violation of Section 3,
subparagraph (b) of Rep. Act 3019, as amended. The SO ORDERED.
prosecution showed that: the accused is a public
officer; in consideration of P4,000.00 which was Fernando, C.J., Teehankee, Makasiar, Aquino,
allegedly solicited, P2,000.00 of which was allegedly Concepcion, Jr., Guerrero, Melencio-Herrera, Plana,
received, the petitioner undertook or promised to Escolin Relova, Gutierrez, Jr., De la Fuente and
dismiss a criminal complaint pending preliminary Cuevas, JJ., concur.
investigation before him, which may or may not
constitute a crime; that the act of dismissing the
criminal complaint pending before petitioner was
related to the exercise of the function of his office. [G.R. NO. 147333 : August 12, 2004]
Therefore, it is with pristine clarity that the offense
ROSALIA* M. DUGAYON, Petitioner, v. PEOPLE OF Thereafter, the Procurement Board prepared the
THE PHILIPPINES, Respondent. Purchase Order specifying the brands and
specifications of the 19 typewriters to be delivered and
DECISION addressed to San Sebastian Marketing c/o Jessie
Callangan.
QUISUMBING, J.:
San Sebastian made three partial deliveries on August
14, 16 and 21, 1989. Upon delivery, the Inspection
Petitioner Rosalia Dugayon seeks the review of
and Acceptance Committee headed by Supply Officer
the Decision 1 dated November 24, 2000 of the
Rogelio Hipolito, inspected and tested the typewriters
Sandiganbayan in Criminal Case No. 20344, convicting
and certified in the Reports of Inspection7 that the
her and her co-accused, Jessie2 Callangan, of violating
deliveries were in accordance with the specifications in
Section 3(e) of Republic Act No. 3019, the Anti-Graft
the Purchase Order.
and Corrupt Practices Act.

Subsequently, Supply Officer Hipolito prepared the


The following facts, as summarized by the
voucher for payment attaching therein the supporting
Sandiganbayan, are undisputed:3
documents including the Reports of Inspection dated
August 14, 16 and 21, 1989. San Sebastian Marketing
Sometime in July 1989, the Department of Social was paid with three checks in the amounts
Welfare and Development (DSWD), Region 2, of P92,880, P88,560 and P58,050, as evidenced by
Tuguegarao, Cagayan, embarked on three official receipts, all dated August 24, 1989.
a P239,4604 project involving the procurement of 19
typewriters. A Procurement Board was formed,
Upon post-audit, acting on the Inspection Report dated
composed of Assistant Regional Director Rosalia
November 15, 1989 by Agapito Malaki, Technical Audit
Dugayon as Chairman, Supply Officer Rogelio Hipolito
Specialist of the COA, Regional Office No. 2,
and Carlito Catabay as authorized canvasser.
Tuguegarao, Cagayan, the Commission on Audit (COA)
disallowed the vouchers/checks. The Inspection Report
The Board prepared the Requisition for Equipment and stated, among others, that all the 19 typewriters were
Supplies (RES) for the 19 typewriters indicating their not brand new, but merely rebuilt and reconditioned.
specifications. The RES was submitted to Regional
Director Consolacion Arafiles for signature and
In notices dated November 29, 1989, the COA
approval. Upon approval of the RES, petitioner
informed petitioner Dugayon, Director Arafiles, Supply
Dugayon released letters of canvass (similar to an
Officer Hipolito and San Sebastian Marketing of the
invitation to bid) addressed to dealers in Tuguegarao
report.
and Manila. From four proposals, San Sebastian
Marketing, represented by Jessie Callangan, won the
bid. When State Auditor Judy Singson, resident auditor The petitioner, Arafiles, Hipolito and Callangan were
of DSWD, Region 2, Tuguegarao, Cagayan, learned indicted for violation of Section 3(e) of the Anti-Graft
about the opening of the bids, she sent a letter dated and Corrupt Practices Act before the Sandiganbayan.
July 21, 1989 to Regional Director Consolacion Arafiles Quoted below is the Amended Information dated June
about the deficiencies in the bidding. In her letter, 17, 1994:
Auditor Singson observed that the Auditor's Office was
not informed of the opening of the bids, in violation of That for the period July 25 to August 24, 1989
Section 3915 of the Government Accounting and or immediately prior and subsequent thereto,
Auditing Manual; that the Auditor was not furnished in Tuguegarao, Cagayan and within the
with copies of bid invitations at least two weeks ahead jurisdiction of this Honorable Court, the
of the opening date; that bidder's bonds were not accused, CONSOLACION ARAFILES, ROSALIA
imposed; and that the bidders were not required to DUGAYON, ROGELIO D. HIPOLITO and JESSEE
submit or present their License/Accreditation before CALLANGAN, Regional Director, Asst. Regional
the opening of the bid proposals. She recommended Director, Supply Officer III, all of
that the bidding be cancelled and another one be DECS8 and Supplier, respectively, the said
conducted. public officers in the discharge of their duties
as such, conspiring and confederating with one
In a letter dated July 25, 1989, Director Arafiles another and with JESSEE CALLANGAN as
responded that the opening of the bids was done in supplier, did then and there wilfully,
good faith. unlawfully, with evident bad faith, purchase,
pay and accept nineteen (19) second-hand
rebuilt and reconditioned typewriters from
Auditor Singson6 sent another letter dated July 28,
Jessee Callangan of San Sebastian Marketing,
1989 advising Director Arafiles to require the winning
contrary to the intention to purchase brand
bidder to post a performance bond instead, to ensure
new units of typewriters only, for a total cost
the delivery of the equipment since it was already late
of P239,490.00, when in truth and in fact, the
to impose a bidder's bond.
total and actual cost of the said nineteen (19)
units of second-hand, rebuilt and reconditioned
typewriters at the time of purchase was
only P141,800.00 or a difference of P97,690.00 (1) THE HONORABLE SANDIGANBAYAN (FIFTH
to the damage and prejudice of the DIVISION) GRAVELY ERRED IN HOLDING AND
government. DECLARING ON THE EXISTENCE OF A
CONSPIRACY AMONG PETITIONER-APPELLANT
CONTRARY TO LAW.9 ROSALIA M. DUGAYON, ACCUSED (AT-LARGE)
ROGELIO D. HIPOLITO, AND JESSEE
CALLANGAN.
On July 6, 1994, the Sandiganbayan ordered the
immediate arrest of the accused. Except for Hipolito,
who remains at-large, all of the accused were arrested (2) THE HONORABLE SANDIGANBAYAN (FIFTH
and later released on bail. DIVISION) IN CONVICTING PETITIONER-
APPELLANT ROSALIA M. DUGAYON, FOR THE
OFFENSE CHARGED FAILED TO APPRECIATE
After the trial, the Sandiganbayan rendered its
THE FACT THAT THE EVIDENCE ADDUCED BY
assailed Decision on November 24, 2000, convicting
THE PROSECUTION ARE NOT SUFFICIENT AND
petitioner and Callangan, acquitting Arafiles and
ADEQUATE TO ESTABLISH HER GUILT BEYOND
ordering the archiving of the case against Hipolito. The
REASONABLE DOUBT.12
decretal portion of said decision reads:

In our view, the following issues must be resolved: (1)


WHEREFORE, under the premises, this Court
Was there a conspiracy to defraud the government?
finds accused ROSALIA M. DUGAYON and
and (2) Is the evidence sufficient to prove the crime
JESSEE G. CALLANGAN "GUILTY" beyond
beyond reasonable doubt?chanroblesvirtualawlibrary
reasonable doubt of Violation of Section 3,
paragraph (e) of R.A. No. 3019, as amended,
and are hereby sentenced to suffer each an On the first issue, petitioner avers that conspiracy is
indeterminate prison term of Six (6) years and not presumed and that the elements of conspiracy, like
One (1) day, as minimum, to Nine (9) years the physical acts constituting the crime itself, must be
and One (1) day, as maximum; to indemnify proven beyond reasonable doubt. She notes that the
the government jointly and severally, in the Sandiganbayan could only point to her having signed
amount of Ninety-Seven Thousand Six the certification portion of the disbursement vouchers
Hundred and Ninety Pesos (P97,690.00), with that states,
costs; and accused Dugayon to further suffer
perpetual disqualification from public office. 3. CERTIFIED: Expenses necessary, lawful and
incurred under my direct supervision.
On the other hand, in view of the above Additional in case of contracts, or purchases of
findings, accused CONSOLACION D. ARAFILES, goods or services prices reasonable and not in
is hereby ACQUITTED of the charge. excess of the current rates in the locality.
Accordingly, the Clerk of Court of the Fifth
Division of this Court is ordered to release
(Sgd.) ROSALIA M. DUGAYON
Original Receipt No. 4193001 dated July 18,
ARD FOR Admin.13
1994, in the amount of P15,000.00 covering
her cash bond, upon proper receipt therefor,
subject to the usual auditing and accounting While she admits being the Chairman of the
procedures. Procurement Board, she denies being a member of the
Inspection and Acceptance Committee. She argues
As far as accused ROGELIO D. HIPOLITO is that, as Assistant Regional Director of the DSWD, she
concerned, who is still at-large up to this time, relies entirely on the recommendations of her
the case against him is hereby ordered subordinates, on the recommendation of the
archived until the Court shall have obtained accountant with respect to the Purchase Order, and on
jurisdiction over his person. Correspondingly, the signatures and recommendations of four
let an alias warrant of arrest be issued against subordinates who process the documents with respect
him. to the disbursement vouchers. She likewise denies she
conspired with her co-accused. Petitioner submits that
SO ORDERED.10 the elements of conspiracy were not established
beyond reasonable doubt and she should be
acquitted.14
The Sandiganbayan denied the respective motions for
reconsideration of the petitioner and Callangan in
its Resolution 11 dated February 26, 2001. On the issue of conspiracy, petitioner relies on Magsuci
Callangan's Petition for Review on Certiorari was v. Sandiganbayan,15 which cited Arias v.
denied by the Supreme Court in a resolution dated Sandiganbayan,16 as precedent to prove the high
August 8, 2001 for his failure to file the same within improbability of her conspiring with her co-accused.
the reglementary period. She quotes,

Here, before us, petitioner Dugayon assigns to the " [the Court] would be setting a bad precedent
Sandiganbayan the following errors: if a head of office plagued by all too common
problems'dishonest or negligent subordinates, express terms to enter into and pursue a
overwork, multiple assignments or positions, common design. The existence of the assent of
or plain incompetence is suddenly swept into a minds which is involved in a conspiracy may
conspiracy conviction simply because he did be, and from the secrecy of the crime, usually
not personally examine every single detail, must be, inferred by the court from proof of
painstakingly trace every step from inception, facts and circumstances which, taken together,
and investigate the motives of every person apparently indicate that they are merely parts
involved in a transaction before affixing his of some complete whole. If it is proved that
signature as the final approving authority. two or more persons aimed by their acts
(Underscoring ours.) towards the accomplishment of the same
unlawful object, each doing a part so that their
... acts, though apparently independent, were in
fact connected and cooperative, indicating a
closeness of personal association and a
All heads of offices have to rely to a reasonable
concurrence of sentiments, then a conspiracy
extent on their subordinates and on the good
may be inferred though no actual meeting
faith of those who prepare bids, purchase
among them to concert means is proved. Thus,
supplies, or enter into negotiations."
the proof of conspiracy, which is essentially
hatched under cover and out of view of others
... than those directly concerned, is perhaps most
frequently made by evidence of a chain of
When, however, that infraction consists in the circumstances only.
reliance in good faith, albeit misplaced, by a
head of office on a subordinate upon whom the It is not correct for the petitioner to say that the
primary responsibility rests, absent a clear Sandiganbayan could only point to her having signed
case of conspiracy, the Arias doctrine must be and certified the disbursement vouchers for her
held to prevail. involvement in the conspiracy. Other circumstances
point to a finding of conspiracy. Among them, she was
Respondent, on the other hand, insists that petitioner the Chairman of the Procurement Board and
was evidently part of the conspiracy considering that member/signatory of the Inspection and Acceptance
she certified the disbursement vouchers when she very Committee. Moreover, despite patent and glaring
well knew that the typewriters were not brand new. defects in the typewriters which could be determined
Respondent offers as basis People v. by a reasonable inspection of the units, petitioner
Geronimo 17 which cited People v. Carbonel,18 and signed the Reports of Inspection that mentioned only
quotes, that the delivered typewriters met
the quantity ordered. The report was silent on the
when the defendants by their acts aimed at the quality of the typewriters. Yet, she hastily signed it,
same object, one performing one part and conveniently overlooking the deficiencies in the
transaction.
another performing another part so as to
complete it, with a view to the attainment of
the same object, and their acts, though Petitioner cannot seek refuge in the cases
apparently independent were in fact concerted of Magsuci and Arias when she relied on the
and cooperative, indicating closeness of recommendations of her subordinates. Petitioner is an
personal association, concerted action and Assistant Regional Director, not the head of office or
concurrence of sentiments, the court will be the final approving authority on whom
justified in concluding that said defendants the Arias doctrine is applicable. That is the reason why
were engaged in a conspiracy. . . . the Sandiganbayan acquitted Regional Director
Arafiles, who was the head of office.
Respondent notes that the Sandiganbayan pointed out
that petitioner certified the disbursement vouchers; Moreover, petitioner's denial of her membership in the
she chaired the Procurement Board, and she signed Inspection and Acceptance Committee is belied by the
the report of the Inspection and Acceptance records of this case. The records show she signed the
Committee. On the whole, she had an extensive and Reports of Inspection as a member/signatory of the
active participation in this transaction for which she Acceptance Committee. In her testimony, she also
cannot disclaim responsibility and liability. She could admitted inspecting the three deliveries20 and
not have been unaware that the 19 typewriters were supervising three subordinates.21
secondhand, rebuilt and reconditioned.
On the sufficiency of the evidence to prove petitioner
In the recent case of Alvizo v. Sandiganbayan,19 we was guilty beyond reasonable doubt of graft and
said, corruption, Section 3(e) of Rep. Act No. 3019 (Anti-
Graft and Corrupt Practices Act) is pertinent. It
provides,
Direct proof is not essential to show
conspiracy. It need not be shown that the
parties actually came together and agreed in
SEC. 3. Corrupt practices of public officers. - In Committee, she also clearly acted with evident bad
addition to acts or omissions of public officers faith. Bad faith does not simply connote bad judgment
already penalized by existing law, the following or negligence. It imputes a dishonest purpose or some
shall constitute corrupt practices of any public moral obliquity and conscious wrongdoing. It partakes
officer and are hereby declared to be unlawful: the nature of fraud. It contemplates a state of mind
affirmatively operating with furtive design or with
... some motive, self-interest or ill will, or for ulterior
purposes.25 Verily, petitioner must answer for her acts
and omissions.
(e) Causing any undue injury to any party,
including the Government, or giving any
private party any unwarranted benefits, WHEREFORE, the petition is DISMISSED. The
advantage or preference in the discharge of his assailed Decision dated November 24, 2000 of the
official, administrative or judicial functions Sandiganbayan is hereby AFFIRMED.
through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision SO ORDERED.
shall apply to officers and employees of offices
or government corporations charged with the Davide, Jr., C.J., (Chairman), Ynares-Santiago,
grant of licenses or permits or other Carpio, and Azcuna, JJ., concur.
concessions.

The essential elements of this crime are: (1) the [G.R. No. 148560. November 19, 2001.]
accused are public officers or private persons charged
in conspiracy with them; (2) said public officers JOSEPH EJERCITO ESTRADA, Petitioner, v.
commit the prohibited acts during the performance of SANDIGANBAYAN (Third Division) and PEOPLE
their official duties or in relation to their public OF THE PHILIPPINES, Respondents.
position; (3) they caused undue injury to any party,
whether the government or a private party; (4) such DECISION
injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and (5) the
public officers have acted with manifest partiality, BELLOSILLO, J.:
evident bad faith or gross inexcusable negligence.22

Recall that at the time of purchase of the typewriters, JOHN STUART MILL, in his essay On Liberty, unleashes
the petitioner was then the Assistant Regional Director the full fury of his pen in defense of the rights of the
of DSWD Region 2, Tuguegarao, Cagayan. She was individual from the vast powers of the State and the
Chairman of the Procurement Board and inroads of societal pressure. But even as he draws a
member/signatory of the Inspection and Acceptance sacrosanct line demarcating the limits on individuality
Committee. She accepted the secondhand typewriters, beyond which the State cannot tread asserting that
contrary to the requirement to buy brand new units, "individual spontaneity" must be allowed to flourish
and allowed payment for them at the price of brand with very little regard to social interference he
new units. She admitted that the specification for the veritably acknowledges that the exercise of rights and
typewriters should be brand new.23 The liberties is imbued with a civic obligation, which society
Sandiganbayan found the typewriters that were paid is justified in enforcing at all cost, against those who
for were secondhand, rebuilt and reconditioned. These would endeavor to withhold fulfillment. Thus he says
findings of fact are binding on us.24 We find no reason
to reject these findings as these were based on the The sole end for which mankind is warranted,
Inspection Report of the COA. individually or collectively, in interfering with the
liberty of action of any of their number, is self-
Without hesitation we find that this transaction protection. The only purpose for which power can be
defrauded and caused injury to the government. The rightfully exercised over any member of a civilized
Sandiganbayan reported that based on the Prices community, against his will, is to prevent harm to
Comparison of Agency Purchase Price Against Re- others.
canvassed Prices on Re-conditioned Items, the
government paid P239,490 for the deliveries Parallel to individual liberty is the natural and
or P97,690 more than the actual cost of P141,800 of illimitable right of the State to self-preservation. With
the rebuilt/reconditioned typewriters, giving the end of maintaining the integrity and cohesiveness
unwarranted benefits to San Sebastian Marketing and of the body politic, it behooves the State to formulate
Jessie Callangan. The amount of P97,690 represents a system of laws that would compel obeisance to its
the actual damage suffered by the government in this collective wisdom and inflict punishment for non-
anomalous transaction. observance.

The movement from Mills individual liberalism to


In our view, petitioner not only failed in her duty as unsystematic collectivism wrought changes in the
Chairman of the Procurement Board and social order, carrying with it a new formulation of
member/signatory of the Inspection and Acceptance
fundamental rights and duties more attuned to the future employment in any business enterprise or
imperatives of contemporary socio-political ideologies. undertaking;
In the process, the web of rights and State impositions
became tangled and obscured, enmeshed in threads of (5) By establishing agricultural, industrial or
multiple shades and colors, the skein irregular and commercial monopolies or other combinations and/or
broken. Antagonism, often outright collision, between implementation of decrees and orders intended to
the law as the expression of the will of the State, and benefit particular persons or special interests; or
the zealous attempts by its members to preserve their
individuality and dignity, inevitably followed. It is when (6) By taking advantage of official position, authority,
individual rights are pitted against State authority that relationship, connection or influence to unjustly enrich
judicial conscience is put to its severest test. himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the
Petitioner Joseph Ejercito Estrada, the highest-ranking Republic of the Philippines.
official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder), 1 as SECTION 2. Definition of the Crime of Plunder,
amended by RA 7659, 2 wishes to impress upon us Penalties. Any public officer who, by himself or in
that the assailed law is so defectively fashioned that it connivance with members of his family, relatives by
crosses that thin but distinct line which divides the affinity or consanguinity, business associates,
valid from the constitutionally infirm. He therefore subordinates or other persons, amasses, accumulates
makes a stringent call for this Court to subject the or acquires ill- gotten wealth through a combination or
Plunder Law to the crucible of constitutionality mainly series of overt or criminal acts as described in Section
because, according to him, (a) it suffers from the vice 1 (d) hereof, in the aggregate amount or total value of
of vagueness; (b) it dispenses with the "reasonable at least fifty million pesos (P50,000,000.00) shall be
doubt" standard in criminal prosecutions; and, (c) it guilty of the crime of plunder and shall be punished by
abolishes the element of mens rea in crimes already reclusion perpetua to death. Any person who
punishable under The Revised Penal Code, all of which participated with the said public official in the
are purportedly clear violations of the fundamental commission of an offense contributing to the crime of
rights of the accused to due process and to be plunder shall likewise be punished for such offense. In
informed of the nature and cause of the accusation the imposition of penalties, the degree of participation
against him. and the attendance of mitigating and extenuating
circumstances as provided by the Revised Penal Code
Specifically, the provisions of the Plunder Law claimed shall be considered by the court. The court shall
by petitioner to have transgressed constitutional declare any and all ill-gotten wealth and their interests
boundaries are Secs. 1, par. (d), 2 and 4 which are and other incomes and assets including the properties
reproduced hereunder:chanrob1es virtual 1aw library and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State
SECTION 1. . . . . (d) "Ill-gotten wealth" means any (Emphasis supplied).
asset, property, business, enterprise or material
possession of any person within the purview of Section SECTION 4. Rule of Evidence. For purposes of
Two (2) hereof, acquired by him directly or indirectly establishing the crime of plunder, it shall not be
through dummies, nominees, agents, subordinates necessary to prove each and every criminal act done
and/or business associates by any combination or by the accused in furtherance of the scheme or
series of the following means or similar conspiracy to amass, accumulate or acquire ill-gotten
schemes:chanrob1es virtual 1aw library wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts
(1) Through misappropriation, conversion, misuse, or indicative of the overall unlawful scheme or conspiracy
malversation of public funds or raids on the public (Emphasis supplied).
treasury;
On 4 April 2001 the Office of the Ombudsman filed
(2) By receiving, directly or indirectly, any commission, before the Sandiganbayan eight (8) separate
gift, share, percentage, kickbacks or any other form of Informations, docketed as: (a) Crim. Case No. 26558,
pecuniary benefit from any person and/or entity in for violation of RA 7080, as amended by RA 7659; (b)
connection with any government contract or project or Crim. Cases Nos. 26559 to 26562, inclusive, for
by reason of the office or position of the public office violation of Secs. 3, par (a), 3, par. (a), 3, par. (e) and
concerned; 3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563,
(3) By the illegal or fraudulent conveyance or for violation of Sec. 7, par. (d), of RA 6713 (The Code
disposition of assets belonging to the National of Conduct and Ethical Standards for Public Officials
Government or any of its subdivisions, agencies or and Employees); (d) Crim. Case No. 26564, for Perjury
instrumentalities, or government owned or controlled (Art. 183 of The Revised Penal Code); and, (e) Crim.
corporations and their subsidiaries; Case No. 26565, for Illegal Use of An Alias (CA No.
142, as amended by RA 6085).
(4) By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form On 11 April 2001 petitioner filed an Omnibus Motion
of interest or participation including the promise of for the remand of the case to the Ombudsman for
preliminary investigation with respect to specification purpose of promoting what is right and advancing the
"d" of the charges in the Information in Crim. Case No. welfare of the majority. Hence in determining whether
26558; and, for reconsideration/reinvestigation of the the acts of the legislature are in tune with the
offenses under specifications "a," "b," and "c" to give fundamental law, courts should proceed with judicial
the accused the opportunity to file counter-affidavits restraint and act with caution and forbearance. Every
and other documents necessary to prove lack of intendment of the law must be adjudged by the courts
probable cause. Noticeably, the grounds raised were in favor of its constitutionality, invalidity being a
only lack of preliminary investigation, measure of last resort. In construing therefore the
reconsideration/reinvestigation of offenses, and provisions of a statute, courts must first ascertain
opportunity to prove lack of probable cause. The whether an interpretation is fairly possible to sidestep
purported ambiguity of the charges and the vagueness the question of constitutionality.
of the law under which they are charged were never
raised in that Omnibus Motion thus indicating the In La Union Credit Cooperative, Inc. v. Yaranon 4 we
explicitness and comprehensibility of the Plunder Law. held that as long as there is some basis for the
decision of the court, the constitutionality of the
On 25 April 2001 the Sandiganbayan, Third Division, challenged law will not be touched and the case will be
issued a Resolution in Crim. Case No. 26558 finding decided on other available grounds. Yet the force of
that "a probable cause for the offense of PLUNDER the presumption is not sufficient to catapult a
exists to justify the issuance of warrants for the arrest fundamentally deficient law into the safe environs of
of the accused." On 25 June 2001 petitioners motion constitutionality. Of course, where the law clearly and
for reconsideration was denied by the Sandiganbayan. palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the
On 14 June 2001 petitioner moved to quash the positive commands of the fundamental law be unduly
Information in Crim. Case No. 26558 on the ground eroded.
that the facts alleged therein did not constitute an
indictable offense since the law on which it was based Verily, the onerous task of rebutting the presumption
was unconstitutional for vagueness, and that the weighs heavily on the party challenging the validity of
Amended Information for Plunder charged more than the statute. He must demonstrate beyond any tinge of
one (1) offense. On 21 June 2001 the Government doubt that there is indeed an infringement of the
filed its Opposition to the Motion to Quash, and five (5) constitution, for absent such a showing, there can be
days later or on 26 June 2001 petitioner submitted his no finding of unconstitutionality. A doubt, even if well-
Reply to the Opposition. On 9 July 2001 the founded, will hardly suffice. As tersely put by Justice
Sandiganbayan denied petitioners Motion to Quash. Malcolm, "To doubt is to sustain." 5 And petitioner has
miserably failed in the instant case to discharge his
As concisely delineated by this Court during the oral burden and overcome the presumption of
arguments on 18 September 2001, the issues for constitutionality of the Plunder Law.
resolution in the instant petition for certiorari are: (a)
The Plunder Law is unconstitutional for being vague; As it is written, the Plunder Law contains ascertainable
(b) The Plunder Law requires less evidence for proving standards and well-defined parameters which would
the predicate crimes of plunder and therefore violates enable the accused to determine the nature of his
the rights of the accused to due process; and, (c) violation. Section 2 is sufficiently explicit in its
Whether Plunder as defined in RA 7080 is a malum description of the acts, conduct and conditions
prohibitum, and if so, whether it is within the power of required or forbidden, and prescribes the elements of
Congress to so classify it. the crime with reasonable certainty and particularity.
Thus
Preliminarily, the whole gamut of legal concepts
pertaining to the validity of legislation is predicated on 1. That the offender is a public officer who acts by
the basic principle that a legislative measure is himself or in connivance with members of his family,
presumed to be in harmony with the Constitution. 3 relatives by affinity or consanguinity, business
Courts invariably train their sights on this fundamental associates, subordinates or other persons;
rule whenever a legislative act is under a constitutional
attack, for it is the postulate of constitutional 2. That he amassed, accumulated or acquired ill-gotten
adjudication. This strong predilection for wealth through a combination or series of the following
constitutionality takes its bearings on the idea that it is overt or criminal acts: (a) through misappropriation,
forbidden for one branch of the government to conversion, misuse, or malversation of public funds or
encroach upon the duties and powers of another. Thus raids on the public treasury; (b) by receiving, directly
it has been said that the presumption is based on the or indirectly, any commission, gift, share, percentage,
deference the judicial branch accords to its coordinate kickback or any other form of pecuniary benefits from
branch the legislature. any person and/or entity in connection with any
government contract or project or by reason of the
If there is any reasonable basis upon which the office or position of the public officer; (c) by the illegal
legislation may firmly rest, the courts must assume or fraudulent conveyance or disposition of assets
that the legislature is ever conscious of the borders belonging to the National Government or any of its
and edges of its plenary powers, and has passed the subdivisions, agencies or instrumentalities of
law with full knowledge of the facts and for the Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting and acquire BY HIMSELF DIRECTLY OR INDIRECTLY,
directly or indirectly any shares of stock, equity or any ill-gotten wealth in the aggregate amount or TOTAL
other form of interest or participation including the VALUE of FOUR BILLION NINETY SEVEN MILLION
promise of future employment in any business EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED
enterprise or undertaking; (e) by establishing SEVENTY THREE AND SEVENTEEN CENTAVOS
agricultural, industrial or commercial monopolies or (P4,097,804,173.17), more or less, THEREBY
other combinations and/or implementation of decrees UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT
and orders intended to benefit particular persons or THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO
special interests; or (f) by taking advantage of official PEOPLE AND THE REPUBLIC OF PHILIPPINES through
position, authority, relationship, connection or ANY OR A combination OR A series of overt OR
influence to unjustly enrich himself or themselves at criminal acts, OR SIMILAR SCHEMES OR MEANS
the expense and to the damage and prejudice of the described as follows:chanrob1es virtual 1aw library
Filipino people and the Republic of the Philippines; and,
(a) by receiving OR collecting, directly or indirectly, on
3. That the aggregate amount or total value of the ill- SEVERAL INSTANCES, MONEY IN THE AGGREGATE
gotten wealth amassed, accumulated or acquired is at AMOUNT OF FIVE HUNDRED FORTY FIVE MILLION
least P50,000,000.00. PESOS (P545,000.000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE,
As long as the law affords some comprehensible guide PERCENTAGE, KICKBACK OR ANY FORM OF
or rule that would inform those who are subject to it PECUNIARY BENEFIT, BY HIMSELF AND/OR in
what conduct would render them liable to its penalties, connection with co-accused CHARLIE ATONG ANG,
its validity will be sustained. It must sufficiently guide Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward
the judge in its application; the counsel, in defending Serapio, AND JOHN DOES AND JANE DOES in
one charged with its violation; and more importantly, consideration OF TOLERATION OR PROTECTION OF
the accused, in identifying the realm of the proscribed ILLEGAL GAMBLING;
conduct. Indeed, it can be understood with little
difficulty that what the assailed statute punishes is the (b) by DIVERTING, RECEIVING, misappropriating,
act of a public officer in amassing or accumulating ill- converting OR misusing DIRECTLY OR INDIRECTLY for
gotten wealth of at least P50,000,000.00 through a HIS OR THEIR PERSONAL gain and benefit, public
series or combination of acts enumerated in Sec. 1, funds in the amount of ONE HUNDRED THIRTY
par. (d), of the Plunder Law. MILLION PESOS (P130,000,000.00), more or less,
representing a portion of the TWO HUNDRED MILLION
In fact, the amended Information itself closely tracks PESOS (P200,000.000.00) tobacco excise tax share
the language of the law, indicating with reasonable allocated for the province of Ilocos Sur under R.A. No
certainty the various elements of the offense which 7171, by himself and or in connivance with co accused
petitioner is alleged to have Charlie Atong Ang, Alma Alfaro, JOHN DOE a k. a.
committed:jgc:chanrobles.com.ph Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES & JANE DOES
"The undersigned Ombudsman, Prosecutor and OIC- (Emphasis supplied).
Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF THE (c) by directing, ordering and compelling, FOR HIS
PHILIPPINES, Joseph Ejercito Estrada, a.k.a.ASIONG PERSONAL GAIN AND BENEFIT , the Government
SALONGA and a.k.a. JOSE VELARDE together with Service Insurance System (GSIS) TO PURCHASE
Jose Jinggoy Estrada, Charlie Atong Ang, Edward 351,878,000 SHARES OF STOCKS, MORE OR LESS,
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE and the Social Security System (SSS), 329,855,000
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, SHARES OF STOCK, MORE OR LESS, OF THE BELLE
Jane Doe a.k.a. Delia Rajas, and John DOES & Jane CORPORATION IN THE AMOUNT OF MORE OR LESS
Does, of the crime of Plunder, defined and penalized ONE BILLION ONE HUNDRED TWO MILLION NINE
under R.A. No. 7080, as amended by Sec. 12 of R.A. HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED
No. 7659, committed as follows:chanrob1es virtual SEVEN PESOS AND FIFTY CENTAVOS
1aw library (P1,102,965,607.50) AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED
That during the period from June, 1998 to January TWELVE THOUSAND AND FOUR HUNDRED FIFTY
2001, in the Philippines, and within the jurisdiction of PESOS (P744,612,450.00) RESPECTIVELY OR A TOTAL
this Honorable Court, Accused Joseph Ejercito Estrada, OF MORE OR LESS ONE BILLION EIGHT HUNDRED
THE PRESIDENT OF THE REPUBLIC OF THE FORTY SEVEN MILLION FIVE HUNDRED SEVENTY
PHILIPPINES, by himself AND/OR in EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY
CONNIVANCE/CONSPIRACY with his co-accused, WHO CENTAVOS (P1,847,578,057.50); AND BY COLLECTING
ARE MEMBERS OF HIS FAMILY, RELATIVES BY OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
AFFINITY OR CONSANGUINITY, BUSINESS HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES
ASSOCIATES, SUBORDINATES AND/OR OTHER JANE DOES, COMMISSIONS OR PERCENTAGES BY
PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS REASON OF SAID PURCHASES OF SHARES OF STOCK
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE
CONNECTION, OR INFLUENCE, did then and there MILLION SEVEN HUNDRED THOUSAND PESOS
willfully, unlawfully and criminally amass, accumulate (P189,700,000.00) MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT "combination" and "series:"
IN THE EQUITABLE BANK UNDER THE ACCOUNT NAME
JOSE VELARDE Combination the result or product of combining; the
act or process of combining. To combine is to bring
(d) by unjustly enriching himself FROM COMMISSIONS, into such close relationship as to obscure individual
GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY characters.
FORM OF PECUNIARY BENEFITS, IN CONNIVANCE
WITH JOHN DOES AND JANE DOES in the amount of Series a number of things or events of the same
MORE OR LESS THREE BILLION TWO HUNDRED class coming one after another in spatial and temporal
THIRTY THREE MILLION ONE HUNDRED FOUR succession.
THOUSAND ONE HUNDRED SEVENTY THREE PESOS
AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND That Congress intended the words "combination" and
DEPOSITING THE SAME UNDER HIS ACCOUNT JOSE "series" to be understood in their popular meanings is
VELARDE AT THE EQUITABLE-PCI BANK."cralaw pristinely evident from the legislative deliberations on
virtua1aw library the bill which eventually became RA 7080 or the
Plunder Law:chanrob1es virtual 1aw library
We discern nothing in the foregoing that is vague or
ambiguous as there is obviously none that will DELIBERATIONS OF THE BICAMERAL COMMITTEE ON
confuse petitioner in his defense. Although subject to JUSTICE, 7 May 1991
proof, these factual assertions clearly show that the
elements of the crime are easily understood and REP. ISIDRO: I am just intrigued again by our
provide adequate contrast between the innocent and definition of plunder. We say THROUGH A
the prohibited acts. Upon such unequivocal assertions, COMBINATION OR SERIES OF OVERT OR CRIMINAL
petitioner is completely informed of the accusations ACTS AS MENTIONED IN SECTION ONE HEREOF. Now
against him as to enable him to prepare for an when we say combination, we actually mean to say, if
intelligent defense.chanrob1es virtua1 1aw 1ibrary there are two or more means, we mean to say that
number one and two or number one and something
Petitioner, however, bewails the failure of the law to else are included, how about a series of the same act?
provide for the statutory definition of the terms For example, through misappropriation, conversion,
"combination" and "series" in the key phrase "a misuse, will these be included also?
combination or series of overt or criminal acts" found
in Sec. 1, par. (d), and Sec. 2, and the word "pattern" REP. GARCIA: Yeah, because we say a series.
in Sec. 4. These omissions, according to petitioner,
render the Plunder Law unconstitutional for being REP. ISIDRO: Series.
impermissibly vague and overbroad and deny him the
right to be informed of the nature and cause of the REP. GARCIA: Yeah, we include series.
accusation against him, hence, violative of his
fundamental right to due process. REP. ISIDRO: But we say we begin with a combination.

The rationalization seems to us to be pure sophistry. A REP. GARCIA: Yes.


statute is not rendered uncertain and void merely
because general terms are used therein, or because of REP. ISIDRO: When we say combination, it seems that
the employment of terms without defining them; 6
much less do we have to define every word we use.
Besides, there is no positive constitutional or statutory REP. GARCIA: Two.
command requiring the legislature to define each and
every word in an enactment. Congress is not restricted REP. ISIDRO: Not only two but we seem to mean that
in the form of expression of its will, and its inability to two of the enumerated means not twice of one
so define the words employed in a statute will not enumeration.
necessarily result in the vagueness or ambiguity of the
law so long as the legislative will is clear, or at least, REP. GARCIA: No, no, not twice.
can be gathered from the whole act, which is distinctly
expressed in the Plunder Law. REP. ISIDRO: Not twice?

Moreover, it is a well-settled principle of legal REP. GARCIA: Yes. Combination is not twice but
hermeneutics that words of a statute will be combination, two acts.
interpreted in their natural, plain and ordinary
acceptation and signification, 7 unless it is evident that REP. ISIDRO: So in other words, thats it. When we
the legislature intended a technical or special legal say combination, we mean, two different acts. It
meaning to those words 8 The intention of the cannot be a repetition of the same act.
lawmakers who are, ordinarily, untrained
philologists and lexicographers to use statutory REP. GARCIA: That be referred to series, yeah.
phraseology in such a manner is always presumed.
Thus, Websters New Collegiate Dictionary contains the REP. ISIDRO: No, no. Supposing one act is repeated,
following commonly accepted definition of the words so there are two.
THE PRESIDENT: If there is only one, then he has to
REP. GARCIA: A series. be prosecuted under the particular crime. But when we
say "acts of plunder" there should be, at least, two or
REP. ISIDRO: Thats not series. Its a combination. more.
Because when we say combination or series, we seem
to say that two or more, di ba? SENATOR ROMULO: In other words, that is already
covered by existing laws, Mr. President.
REP. GARCIA: Yes, this distinguishes it really from
ordinary crimes. That is why, I said, that is a very Thus when the Plunder Law speaks of "combination," it
good suggestion because if it is only one act, it may is referring to at least two (2) acts falling under
fall under ordinary crime but we have here a different categories of enumeration provided in Sec. 1,
combination or series of overt or criminal acts. So . . . par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of
REP. GARCIA: Series One after the other eh di . . . assets belonging to the National Government under
Sec. 1, par. (d), subpar. (3).
SEN. TAADA: So that would fall under the term
"series?" On the other hand, to constitute a "series" there must
be two (2) or more overt or criminal acts falling under
REP. GARCIA: Series, oo. the same category of enumeration found in Sec. 1,
par. (d), say, misappropriation, malversation and raids
REP. ISIDRO: Now, if it is a combination, ano, two on the public treasury, all of which fall under Sec 1,
misappropriations . . . par. (d), subpar. (1). Verily, had the legislature
intended a technical or distinctive meaning for
REP. GARCIA: Its not . . . Two misappropriations will "combination" and "series," it would have taken
not be combination. Series. greater pains in specifically providing for it in the law.

REP. ISIDRO: So, it is not a combination? As for "pattern," we agree with the observations of the
Sandiganbayan 9 that this term is sufficiently defined
REP. GARCIA: Yes. in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2

REP. ISIDRO: When you say combination, two . . . . under Sec. 1 (d) of the law, a pattern consists
different? of at least a combination or series of overt or criminal
acts enumerated in subsections (1) to (6) of Sec. 1
REP. GARCIA: Yes. (d). Secondly, pursuant to Sec. 2 of the law, the
pattern of overt or criminal acts is directed towards a
SEN. TAADA: Two different. common purpose or goal which is to enable the public
officer to amass, accumulate or acquire ill-gotten
REP. ISIDRO: Two different acts. wealth. And thirdly, there must either be an overall
unlawful scheme or conspiracy to achieve said
REP. GARCIA: For example, ha . . . common goal. As commonly understood, the term
overall unlawful scheme indicates a general plan of
REP. ISIDRO: Now a series, meaning, repetition . . . action or method which the principal accused and
public officer and others conniving with him, follow to
DELIBERATIONS ON SENATE BILL NO. 733, 6 June achieve the aforesaid common goal. In the alternative,
1989 if there is no such overall scheme or where the
schemes or methods used by multiple accused vary,
SENATOR MACEDA: In line with our interpellations that the overt or criminal acts must form part of a
sometimes "one" or maybe even "two" acts may conspiracy to attain a common goal.
already result in such a big amount, on line 25, would
the Sponsor consider deleting the words "a series of Hence, it cannot plausibly be contended that the law
overt or," to read, therefore: "or conspiracy does not give a fair warning and sufficient notice of
COMMITTED by criminal acts such as." Remove the what it seeks to penalize. Under the circumstances,
idea of necessitating "a series." Anyway, the criminal petitioners reliance on the "void-for-vagueness"
acts are in the plural. doctrine is manifestly misplaced. The doctrine has
been formulated in various ways, but is most
SENATOR TAADA: That would mean a combination of commonly stated to the effect that a statute
two or more of the acts mentioned in this. establishing a criminal offense must define the offense
with sufficient definiteness that persons of ordinary
THE PRESIDENT: Probably two or more would be . . . . intelligence can understand what conduct is prohibited
by the statute. It can only be invoked against that
SENATOR MACEDA: Yes, because "a series" implies specie of legislation that is utterly vague on its face,
several or many; two or more. i.e., that which cannot be clarified either by a saving
clause or by construction.chanrob1es virtua1 1aw
SENATOR TAADA: Accepted, Mr. President . . . . 1ibrary
A statute or act may be said to be vague when it lacks deemed to justify allowing attacks on overly broad
comprehensible standards that men of common statutes with no requirement that the person making
intelligence must necessarily guess at its meaning and the attack demonstrate that his own conduct could not
differ in its application. In such instance, the statute is be regulated by a statute drawn with narrow
repugnant to the Constitution in two (2) respects it specificity. 15 The possible harm to society in
violates due process for failure to accord persons, permitting some unprotected speech to go unpunished
especially the parties targeted by it, fair notice of what is outweighed by the possibility that the protected
conduct to avoid; and, it leaves law enforcers speech of others may be deterred and perceived
unbridled discretion in carrying out its provisions and grievances left to fester because of possible inhibitory
becomes an arbitrary flexing of the Government effects of overly broad statutes.
muscle. 10 But the doctrine does not apply as against
legislations that are merely couched in imprecise This rationale does not apply to penal statutes.
language but which nonetheless specify a standard Criminal statutes have general in terrorem effect
though defectively phrased; or to those that are resulting from their very existence, and, if facial
apparently ambiguous yet fairly applicable to certain challenge is allowed for this reason alone, the State
types of activities. The first may be "saved" by proper may well be prevented from enacting laws against
construction, while no challenge may be mounted as socially harmful conduct. In the area of criminal law,
against the second whenever directed against such the law cannot take chances as in the area of free
activities. 11 With more reason, the doctrine cannot be speech.
invoked where the assailed statute is clear and free
from ambiguity, as in this case. The overbreadth and vagueness doctrines then have
special application only to free speech cases. They are
The test in determining whether a criminal statute is inapt for testing the validity of penal statutes. As the
void for uncertainty is whether the language conveys a U.S. Supreme Court put it, in an opinion by Chief
sufficiently definite warning as to the proscribed Justice Rehnquist, "we have not recognized an
conduct when measured by common understanding overbreadth doctrine outside the limited context of
and practice. 12 It must be stressed, however, that the First Amendment." 16 In Broadrick v Oklahoma, 17
the "vagueness" doctrine merely requires a reasonable the Court ruled that "claims of facial overbreadth have
degree of certainty for the statute to be upheld not been entertained in cases involving statutes which, by
absolute precision or mathematical exactitude, as their terms, seek to regulate only spoken words" and,
petitioner seems to suggest. Flexibility, rather than again, that "overbreadth claims, if entertained at all,
meticulous specificity, is permissible as long as the have been curtailed when invoked against ordinary
metes and bounds of the statute are clearly delineated. criminal laws that are sought to be applied to
An act will not be held invalid merely because it might protected conduct." For this reason, it has been held
have been more explicit in its wordings or detailed in that "a facial challenge to a legislative act is the most
its provisions, especially where, because of the nature difficult challenge to mount successfully, since the
of the act, it would be impossible to provide all the challenger must establish that no set of circumstances
details in advance as in all other statutes.chanrob1es exists under which the Act would be valid." 18 As for
virtua1 1aw 1ibrary the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all
Moreover, we agree with, hence we adopt, the its possible applications. "A plaintiff who engages in
observations of Mr. Justice Vicente V. Mendoza during some conduct that is clearly proscribed cannot
the deliberations of the Court that the allegations that complain of the vagueness of the law as applied to the
the Plunder Law is vague and overbroad do not justify conduct of others. 19
a facial review of its validity
In sum, the doctrines of strict scrutiny, overbreadth,
The void-for-vagueness doctrine states that "a statute and vagueness are analytical tools developed for
which either forbids or requires the doing of an act in testing "on their faces" statutes in free speech cases
terms so vague that men of common intelligence must or, as they are called in American law, First
necessarily guess at its meaning and differ as to its Amendment cases. They cannot be made to do service
application, violates the first essential of due process when what is involved is a criminal statute. With
of law." 13 The overbreadth doctrine, on the other respect to such statute, the established rule is that
hand, decrees that "a governmental purpose may not "one to whom application of a statute is constitutional
be achieved by means which sweep unnecessarily will not be heard to attack the statute on the ground
broadly and thereby invade the area of protected that impliedly it might also be taken as applying to
freedoms. 14 other persons or other situations in which its
application might be unconstitutional." 20 As has been
A facial challenge is allowed to be made to a vague pointed out, "vagueness challenges in the First
statute and to one which is overbroad because of Amendment context, like overbreadth challenges
possible "chilling effect" upon protected speech. The typically produce facial invalidation, while statutes
theory is that" [w]hen statutes regulate or proscribe found vague as a matter of due process typically are
speech and no readily apparent construction suggests invalidated [only] as applied to a particular
itself as a vehicle for rehabilitating the statutes in a defendant. 21 Consequently, there is no basis for
single prosecution, the transcendent value to all petitioners claim that this Court review the Anti-
society of constitutionally protected expression is Plunder Law on its face and in its entirety.
judicial or administrative precedents; that, for its
Indeed, "on its face" invalidation of statutes results in vagueness, Sec. 3, par. (e), violates due process in
striking them down entirely on the ground that they that it does not give fair warning or sufficient notice of
might be applied to parties not before the Court whose what it seeks to penalize. Petitioners further argued
activities are constitutionally protected. 22 It that the Information charged them with three (3)
constitutes a departure from the case and controversy distinct offenses, to wit: (a) giving of "unwarranted"
requirement of the Constitution and permits decisions benefits through manifest partiality; (b) giving of
to be made without concrete factual settings and in unwarranted" benefits through evident bad faith; and,
sterile abstract contexts. 23 But, as the U.S. Supreme (c) giving of "unwarranted" benefits through gross
Court pointed out in Younger v. Harris 24 inexcusable negligence while in the discharge of their
official function and that their right to be informed of
[T]he task of analyzing a proposed statute, pinpointing the nature and cause of the accusation against them
its deficiencies, and requiring correction of these was violated because they were left to guess which of
deficiencies before the statute is put into effect, is the three (3) offenses, if not all, they were being
rarely if ever an appropriate task for the judiciary. The charged and prosecuted.
combination of the relative remoteness of the
controversy, the impact on the legislative process of In dismissing the petition, this Court held that Sec. 3,
the relief sought, and above all the speculative and par. (e), of The Anti-Graft and Corrupt Practices Act
amorphous nature of the required line-by-line analysis does not suffer from the constitutional defect of
of detailed statutes, . . . ordinarily results in a kind of vagueness. The phrases "manifest partiality," "evident
case that is wholly unsatisfactory for deciding bad faith," and "gross and inexcusable negligence"
constitutional questions, whichever way they might be merely describe the different modes by which the
decided. offense penalized in Sec. 3, par. (e), of the statute
may be committed, and the use of all these phrases in
For these reasons, "on its face" invalidation of statutes the same Information does not mean that the
has been described as "manifestly strong medicine," to indictment charges three (3) distinct offenses.
be employed "sparingly and only as a last resort," 25
and is generally disfavored. 26 In determining the The word unwarranted is not uncertain. It seems
constitutionality of a statute, therefore, its provisions lacking adequate or official support; unjustified;
which are alleged to have been violated in a case must unauthorized (Webster, Third International Dictionary,
be examined in the light of the conduct with which the p. 2514); or without justification or adequate reason
defendant is charged. 27 (Philadelphia Newspapers, Inc. v. US Dept. of Justice,
C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
In light of the foregoing disquisition, it is evident that Phrases, Permanent Edition, Vol. 43-A 1978,
the purported ambiguity of the Plunder Law, so Cumulative Annual Pocket Part, p. 19).
tenaciously claimed and argued at length by petitioner,
is more imagined than real. Ambiguity, where none The assailed provisions of the Anti-Graft and Corrupt
exists, cannot be created by dissecting parts and Practices Act consider a corrupt practice and make
words in the statute to furnish support to critics who unlawful the act of the public officer in:chanrob1es
cavil at the want of scientific precision in the law. virtual 1aw library
Every provision of the law should be construed in
relation and with reference to every other part. To be . . . or giving any private party any unwarranted
sure, it will take more than nitpicking to overturn the benefits, advantage or preference in the discharge of
well-entrenched presumption of constitutionality and his official, administrative or judicial functions through
validity of the Plunder Law. A fortiori, petitioner cannot manifest partiality, evident bad faith or gross
feign ignorance of what the Plunder Law is all about. inexcusable negligence, . . . (Section 3 [e], Rep. Act
Being one of the Senators who voted for its passage, 3019, as amended).
petitioner must be aware that the law was extensively
deliberated upon by the Senate and its appropriate It is not at all difficult to comprehend that what the
committees by reason of which he even registered his aforequoted penal provisions penalize is the act of a
affirmative vote with full knowledge of its legal public officer, in the discharge of his official,
implications and sound constitutional anchorage. administrative or judicial functions, in giving any
private party benefits, advantage or preference which
The parallel case of Gallego v. Sandiganbayan 28 must is unjustified, unauthorized or without justification or
be mentioned if only to illustrate and emphasize the adequate reason, through manifest partiality, evident
point that courts are loathed to declare a statute void bad faith or gross inexcusable negligence.
for uncertainty unless the law itself is so imperfect and
deficient in its details, and is susceptible of no In other words, this Court found that there was
reasonable construction that will support and give it nothing vague or ambiguous in the use of the term
effect. In that case, petitioners Gallego and Agoncillo "unwarranted" in Sec. 3, par. (e), of The Anti-Graft
challenged the constitutionality of Sec. 3, par. (e), of and Corrupt Practices Act, which was understood in its
The Anti-Graft and Corrupt Practices Act for being primary and general acceptation. Consequently, in that
vague. Petitioners posited, among others, that the case, petitioners objection thereto was held
term "unwarranted" is highly imprecise and elastic with inadequate to declare the section unconstitutional.
no common law meaning or settled definition by prior
On the second issue, petitioner advances the highly reasonable doubt is every element of the crime
stretched theory that Sec. 4 of the Plunder Law charged. For example, Mr. Speaker, there is an
circumvents the immutable obligation of the enumeration of the things taken by the robber in the
prosecution to prove beyond reasonable doubt the information three pairs of pants, pieces of jewelry.
predicate acts constituting the crime of plunder when it These need not be proved beyond reasonable doubt,
requires only proof of a pattern of overt or criminal but these will not prevent the conviction of a crime for
acts showing unlawful scheme or conspiracy which he was charged just because, say, instead of 3
pairs of diamond earrings the prosecution proved two.
SEC. 4. Rule of Evidence. For purposes of Now, what is required to be proved beyond reasonable
establishing the crime of plunder, it shall not be doubt is the element of the offense.
necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or MR. ALBANO: I am aware of that, Mr. Speaker, but
conspiracy to amass, accumulate or acquire ill-gotten considering that in the crime of plunder the totality of
wealth, it being sufficient to establish beyond the amount is very important, I feel that such a series
reasonable doubt a pattern of overt or criminal acts of overt criminal acts has to be taken singly. For
indicative of the overall unlawful scheme or instance, in the act of bribery, he was able to
conspiracy.cralaw : red accumulate only P50,000 and in the crime of extortion,
he was only able to accumulate P1 million. Now, when
The running fault in this reasoning is obvious even to we add the totality of the other acts as required under
the simplistic mind. In a criminal prosecution for this bill through the interpretation on the rule of
plunder, as in all other crimes, the accused always has evidence, it is just one single act, so how can we now
in his favor the presumption of innocence which is convict him?
guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond reasonable MR. GARCIA: With due respect, Mr. Speaker, for
doubt that culpability lies, the accused is entitled to an purposes of proving an essential element of the crime,
acquittal. 29 The use of the "reasonable doubt" there is a need to prove that element beyond
standard is indispensable to command the respect and reasonable doubt. For example, one essential element
confidence of the community in the application of of the crime is that the amount involved is P100
criminal law. It is critical that the moral force of million. Now, in a series of defalcations and other acts
criminal law be not diluted by a standard of proof that of corruption in the enumeration the total amount
leaves people in doubt whether innocent men are would be P110 or P120 million, but there are certain
being condemned. It is also important in our free acts that could not be proved, so, we will sum up the
society that every individual going about his ordinary amounts involved in those transactions which were
affairs has confidence that his government cannot proved. Now, if the amount involved in these
adjudge him guilty of a criminal offense without transactions, proved beyond reasonable doubt, is P100
convincing a proper factfinder of his guilt with utmost million, then there is a crime of plunder (Emphasis
certainty. This "reasonable doubt" standard has supplied).
acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process It is thus plain from the foregoing that the legislature
Clause which protects the accused against conviction did not in any manner refashion the standard quantum
except upon proof beyond reasonable doubt of every of proof in the crime of plunder. The burden still
fact necessary to constitute the crime with which he is remains with the prosecution to prove beyond any iota
charged. 30 The following exchanges between Rep. of doubt every fact or element necessary to constitute
Rodolfo Albano and Rep. Pablo Garcia on this score the crime.
during the deliberations in the floor of the House of
Representatives are elucidating The thesis that Sec. 4 does away with proof of each
and every component of the crime suffers from a
DELIBERATIONS OF THE HOUSE OF dismal misconception of the import of that provision.
REPRESENTATIVES ON RA 7080, 9 October 1990 What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to
MR. ALBANO: Now, Mr. Speaker, it is also elementary form a combination or series which would constitute a
in our criminal law that what is alleged in the pattern and involving an amount of at least
information must be proven beyond reasonable doubt. P50,000,000.00. There is no need to prove each and
If we will prove only one act and find him guilty of the every other act alleged in the Information to have
other acts enumerated in the information, does that been committed by the accused in furtherance of the
not work against the right of the accused especially so overall unlawful scheme or conspiracy to amass,
if the amount committed, say, by falsification is less accumulate or acquire ill- gotten wealth. To illustrate,
than P100 million, but the totality of the crime supposing that the accused is charged in an
committed is P100 million since there is malversation, Information for plunder with having committed fifty
bribery, falsification of public document, coercion, (50) raids on the public treasury. The prosecution need
theft? not prove all these fifty (50) raids, it being sufficient to
prove by pattern at least two (2) of the raids beyond
MR. GARCIA: Mr. Speaker, not everything alleged in reasonable doubt provided only that they amounted to
the information needs to be proved beyond reasonable at least P50,000,000.00. 31
doubt. What is required to be proved beyond
A reading of Sec. 2 in conjunction with Sec. 4, brings reasonable doubt insofar as the predicate crimes
us to the logical conclusion that "pattern of overt or charged are concerned that you do not have to go that
criminal acts indicative of the overall unlawful scheme far by applying Section 4?
or conspiracy" inheres in the very acts of
accumulating, acquiring or amassing hidden wealth. ATTY. AGABIN: Your Honor, our thinking is that
Stated otherwise, such pattern arises where the Section 4 contains a very important element of the
prosecution is able to prove beyond reasonable doubt crime of plunder and that cannot be avoided by the
the predicate acts as defined in Sec. 1, par. (d). prosecution. 32
Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with We do not subscribe to petitioners stand. Primarily, all
reason and common sense. There would be no other the essential elements of plunder can be culled and
explanation for a combination or series of overt or understood from its definition in Sec. 2, in relation to
criminal acts to stash P50,000,000.00 or more, than "a Sec. 1, par. (d), and "pattern" is not one of them.
scheme or conspiracy to amass, accumulate or acquire Moreover, the epigraph and opening clause of Sec. 4 is
ill gotten wealth. The prosecution is therefore not clear and unequivocal:chanrob1es virtual 1aw library
required to make a deliberate and conscious effort to
prove pattern as it necessarily follows with the SEC. 4. Rule of Evidence For purposes of
establishment of a series or combination of the establishing the crime of plunder . . . .
predicate acts.chanrob1es virtua1 1aw 1ibrary
It purports to do no more than prescribe a rule of
Relative to petitioners contentions on the purported procedure for the prosecution of a criminal case for
defect of Sec. 4 is his submission that "pattern" is "a plunder. Being a purely procedural measure, Sec. 4
very important element of the crime of plunder;" and does not define or establish any substantive right in
that Sec. 4 is "two pronged, (as) it contains a rule of favor of the accused but only operates in furtherance
evidence and a substantive element of the crime, such of a remedy. It is only a means to an end, an aid to
that without it the accused cannot be convicted of substantive law. Indubitably, even without invoking
plunder Sec. 4, a conviction for plunder may be had, for what
is crucial for the prosecution is to present sufficient
JUSTICE BELLOSILLO: In other words, cannot an evidence to engender that moral certitude exacted by
accused be convicted under the plunder law without the fundamental law to prove the guilt of the accused
applying Section 4 on the Rule of Evidence if there is beyond reasonable doubt. Thus, even granting for the
proof beyond reasonable doubt of the commission of sake of argument that Sec. 4 is flawed and vitiated for
the acts complained of? the reasons advanced by petitioner, it may simply be
severed from the rest of the provisions without
ATTY. AGABIN: In that case he can be convicted of necessarily resulting in the demise of the law; after all,
individual crimes enumerated in the Revised Penal the existing rules on evidence can supplant Sec. 4
Code, but not plunder. more than enough. Besides, Sec. 7 of RA 7080
provides for a separability clause
JUSTICE BELLOSILLO: In other words, if all the
elements of the crime are proved beyond reasonable Sec. 7. Separability of Provisions. If any provisions
doubt without applying Section 4, can you not have a of this Act or the application thereof to any person or
conviction under the Plunder Law? circumstance is held invalid, the remaining provisions
of this Act and the application of such provisions to
ATTY. AGABIN: Not a conviction for plunder, your other persons or circumstances shall not be affected
Honor. thereby.

JUSTICE BELLOSILLO: Can you not disregard the Implicit in the foregoing section is that to avoid the
application of Sec. 4 in convicting an accused charged whole act from being declared invalid as a result of the
for violation of the Plunder Law? nullity of some of its provisions, assuming that to be
the case although it is not really so, all the provisions
ATTY. AGABIN: Well, your Honor, in the first place thereof should accordingly be treated independently of
Section 4 lays down a substantive element of the law . each other, especially if by doing so, the objectives of
. . . the statute can best be achieved.chanrob1es virtua1
1aw 1ibrary
JUSTICE BELLOSILLO: What I said is do we have to
avail of Section 4 when there is proof beyond As regards the third issue, again we agree with Justice
reasonable doubt on the acts charged constituting Mendoza that plunder is a malum in se which requires
plunder? proof of criminal intent. Thus, he says, in his
Concurring Opinion
ATTY. AGABIN: Yes, your Honor, because Section 4 is
two pronged, it contains a rule of evidence and it . . . Precisely because the constitutive crimes are mala
contains a substantive element of the crime of plunder. in se the element of mens rea must be proven in a
So, there is no way by which we can avoid Section 4. prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder
JUSTICE BELLOSILLO: But there is proof beyond was committed "willfully, unlawfully and criminally." It
thus alleges guilty knowledge on the part of petitioner. is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress
In support of his contention that the statute eliminates in 1993 to include it among the heinous crimes
the requirement of mens rea and that is the reason he punishable by reclusion perpetua to death. Other
claims the statute is void, petitioner cites the following heinous crimes are punished with death as a straight
remarks of Senator Taada made during the penalty in R.A. No. 7659. Referring to these groups of
deliberation on S.B. No. 733:chanrob1es virtual 1aw heinous crimes, this Court held in People v. Echegaray.
library 36

SENATOR TAADA . . . And the evidence that will be The evil of a crime may take various forms. There are
required to convict him would not be evidence for each crimes that are, by their very nature, despicable,
and every individual criminal act but only evidence either because life was callously taken or the victim is
sufficient to establish the conspiracy or scheme to treated like an animal and utterly dehumanized as to
commit this crime of plunder. 33 completely disrupt the normal course of his or her
growth as a human being . . . . Seen in this light, the
However, Senator Taada was discussing 4 as shown capital crimes of kidnapping and serious illegal
by the succeeding portion of the transcript quoted by detention for ransom resulting in the death of the
petitioner:chanrob1es virtual 1aw library victim or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in
SENATOR ROMULO: And, Mr. President, the Gentleman death; and drug offenses involving minors or resulting
feels that it is contained in Section 4, Rule of Evidence, in the death of the victim in the case of other crimes;
which, in the Gentlemans view, would provide for a as well as murder, rape, parricide, infanticide,
speedier and faster process of attending to this kind of kidnapping and serious illegal detention, where the
cases? victim is detained for more than three days or serious
physical injuries were inflicted on the victim or threats
SENATOR TAADA: Yes, Mr. President . . . 34 Senator to kill him were made or the victim is a minor, robbery
Taada was only saying that where the charge is with homicide, rape or intentional mutilation,
conspiracy to commit plunder, the prosecution need destructive arson, and carnapping where the owner,
not prove each and every criminal act done to further driver or occupant of the carnapped vehicle is killed or
the scheme or conspiracy, it being enough if it proves raped, which are penalized by reclusion perpetua to
beyond reasonable doubt a pattern of overt or criminal death, are clearly heinous by their very nature.
acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern There are crimes, however, in, which the abomination
are concerned, however, the elements of the crime lies in the significance and implications of the subject
must be proved and the requisite mens rea must be criminal acts in the scheme of the larger socio-political
shown.chanrob1es virtua1 1aw 1ibrary and economic context in which the state finds itself to
be struggling to develop and provide for its poor and
Indeed, 2 provides that underprivileged masses. Reeling from decades of
corrupt tyrannical rule that bankrupted the
Any person who participated with the said public officer government and impoverished the population, the
in the commission of an offense contributing to the Philippine Government must muster the political will to
crime of plunder shall likewise be punished for such dismantle the culture of corruption, dishonesty, greed
offense. In the imposition of penalties, the degree of and syndicated criminality that so deeply entrenched
participation and the attendance of mitigating and itself in the structures of society and the psyche of the
extenuating circumstances, as provided by the Revised populace. [With the government] terribly lacking the
Penal Code, shall be considered by the court. money to provide even the most basic services to its
people, any form of misappropriation or misapplication
The application of mitigating and extenuating of government funds translates to an actual threat to
circumstances in the Revised Penal Code to the very existence of government, and in turn, the
prosecutions under the Anti-Plunder Law indicates very survival of the people it governs over. Viewed in
quite clearly that mens rea is an element of plunder this context, no less heinous are the effect and
since the degree of responsibility of the offender is repercussions of crimes like qualified bribery,
determined by his criminal intent. It is true that 2 destructive arson resulting in death, and drug offenses
refers to "any person who participates with the said involving government official, employees or officers,
public officer in the commission of an offense that their perpetrators must not be allowed to cause
contributing to the crime of plunder." There is no further destruction and damage to society.
reason to believe, however, that it does not apply as
well to the public officer as principal in the crime. As The legislative declaration in R.A. No. 7659 that
Justice Holmes said: "We agree to all the generalities plunder is a heinous offense implies that it is a malum
about not supplying criminal laws with what they omit, in se. For when the acts punished are inherently
but there is no canon against using common sense in immoral or inherently wrong, they are mala in se 37
construing laws as saying what they obviously mean." and it does not matter that such acts are punished in a
35 special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it
Finally, any doubt as to whether the crime of plunder would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an ordinance
against jaywalking, without regard to the inherent KAPUNAN, J, dissenting:chanrob1es virtual 1aw library
wrongness of the acts.
The primary duty of the Court is to render justice. The
To clinch, petitioner likewise assails the validity of RA resolution of the issues brought before it must be
7659, the amendatory law of RA 7080, on grounded on law, justice and the basic tenets of due
constitutional grounds. Suffice it to say however that it process, unswayed by the passions of the day or the
is now too late in the day for him to resurrect this long clamor of the multitudes, guided only by its members
dead issue, the same having been eternally consigned honest conscience, clean hearts and their unsullied
by People v. Echegaray 38 to the archives of conviction to do what is right under the law.
jurisprudential history. The declaration of this Court
therein that RA 7659 is constitutionally valid stands as The issues posed by the instant petition are quite
a declaration of the State, and becomes, by necessary difficult. The task of the Court to resolve the same is
effect, assimilated in the Constitution now as an made more daunting because the case involves a
integral part of it. former President of the Republic who, in the eyes of
certain sectors of society, deserves to be punished. But
Our nation has been racked by scandals of corruption the mandate of the Court is to decide these issues
and obscene profligacy of officials in high places which solely on the basis of law and due process, and
have shaken its very foundation. The anatomy of graft regardless of the personalities involved. For indeed,
and corruption has become more elaborate in the the rule of law and the right to due process are
corridors of time as unscrupulous people relentless]y immutable principles that should apply to all, even to
contrive more and more ingenious ways to bilk the those we hate. As Fr. Joaquin G. Bernas, S.J., a noted
coffers of the government. Drastic and radical constitutionalist, aptly puts it
measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and . . . the greater disaster would be if the Supreme Court
economically catastrophic looting of the national should heed the clamor for conviction and convict
treasury. Such is the Plunder Law, especially designed Estrada even under an unconstitutional law but of the
to disentangle those ghastly tissues of grand-scale belief that Estrada deserves to be punished. That
corruption which, if left unchecked, will spread like a would be tantamount to a rule of men and not of law.
malignant tumor and ultimately consume the moral 1
and institutional fiber of our nation. The Plunder Law,
indeed, is a living testament to the will of the The Basic Facts
legislature to ultimately eradicate this scourge and
thus secure society against the avarice and other The petition before us questions the constitutionality of
venalities in public office.chanrob1es virtua1 1aw Republic Act No. 7080 (R.A. No. 7080 or Plunder Law),
1ibrary as amended by Republic Act No. 7659, 2 entitled "An
Act Defining and Penalizing the Crime of Plunder." 3
These are times that try mens souls. In the checkered This original petition for certiorari and prohibition
history of this nation, few issues of national against Respondent Third Division of the
importance can equal the amount of interest and Sandiganbayan filed by petitioner Joseph Ejercito
passion generated by petitioners ignominious fall from Estrada assails Respondent courts Resolution, dated
the highest office, and his eventual prosecution and July 9, 2001, denying his Motion to Quash the
trial under a virginal statute. This continuing saga has information against him in Criminal Case No. 26558 for
driven a wedge of dissension among our people that Plunder. Petitioner likewise prays that the
may linger for a long time. Only by responding to the Sandiganbayan be prohibited and enjoined from
clarion call for patriotism, to rise above factionalism proceeding with his arraignment and trial in Criminal
and prejudices, shall we emerge triumphant in the Case No. 26558 due to the unconstitutionality of R. A.
midst of ferment. No. 7080.

PREMISES CONSIDERED, this Court holds that RA On the heels of the finality of the joint decision of this
7080 otherwise known as the Plunder Law, as Court in G.R. No. 146710 (Estrada v. Desierto, Et. Al.)
amended by RA 7659, is CONSTITUTIONAL. and in G.R. No. 146738 (Estrada v. Macapagal-
Consequently, the petition to declare the law Arroyo), promulgated on April 3, 2001, upholding the
unconstitutional is DISMISSED for lack of merit. constitutionality of President Gloria Macapagal-Arroyos
assumption of office as President of the Republic of the
SO ORDERED. Philippines and declaring that the former President
Joseph Ejercito Estrada no longer enjoyed immunity
Buena, and De Leon, Jr., JJ., concur. from suit, the Ombudsman filed eight (8) Informations
against Estrada. These cases were Criminal Case No.
Carpio, J., no part. I was one of complainants before 26558 (for Plunder); Criminal Case No. 26559 (for
Ombudsman. Violation of Sec. 3[a] of Republic Act No. 3019);
Criminal Case No. 26560 (for Violation of Sec. 3[a] of
Separate Opinions R.A. No. 3019); Criminal Case No. 26561 (for Violation
of Sec. 3[e] of R.A. 3019); Criminal Case No. 26562
(for Violation of Sec. 3[e] of R.A. No. 3019); Criminal THREE BILLION TWO HUNDRED THIRTY THREE
Case No. 26563 (for Violation of Sec. 7[d] of R.A. No. MILLION ONE HUNDRED FOUR THOUSAND ONE
6713); Criminal Case No. 26564 (for Perjury); and HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
Criminal Case No. 26565 (for Illegal Use of Alias). CENTAVOS (P3,233,104,173.17) comprising his
unexplained wealth acquired, accumulated and
The aforementioned informations were raffled to the amassed by him under his account name "Jose
five divisions of the Sandiganbayan. Criminal Case No. Velarde" with Equitable PCI Bank:chanrob1es virtual
26558 was raffled to the Third Division of said court. 1aw library
The amended information against petitioner charging
violations of Section 2, in relation to Section (d) (1) to the damage and prejudice of the Filipino people and
(2) of the statute reads:chanrob1es virtual 1aw library the Republic of the Philippines.

That during the period from June, 1998 to January, CONTRARY TO LAW. 4
2001, in the Philippines, and within the jurisdiction of
this Honorable Court, Accused Joseph Ejercito Estrada, On April 16 and 17, 2001, the Ombudsman filed an Ex-
by himself and in conspiracy with his co-accused, Parte Manifestation to Withdraw Information in
business associates and persons heretofore named, by Criminal Case Nos. 26559, 26560, 26561, 26562 and
taking advantage of his official position, authority, 26563. Petitioner registered his objection to the
connection or influence as President of the Republic of Ombudsmans motion to withdraw. The divisions of the
the Philippines, did then and there wilfully, unlawfully Sandiganbayan to which said cases were assigned
and criminally amass, accumulate and acquire ill- granted the withdrawal of the informations, save for
gotten wealth, and unjustly enrich himself in the that in Criminal Case No. 26561. At present, the Order
aggregate amount of P4,097,804,173.17, more or less, of the First Division of the Sandiganbayan denying the
through a combination and series of overt and criminal Ombudsmans motion to withdraw in Criminal Case No.
acts, described as follows:chanrob1es virtual 1aw 26561 is still under reconsideration.
library
In Criminal Case No. 26558, petitioner filed on April
(a) by receiving, collecting, directly or indirectly, on 11, 2001 an Omnibus Motion for the remand of the
many instances, so-called "jueteng money" from case to the Office of the Ombudsman for: (1) the
gambling operators in connivance with co-accused Jose conduct of a preliminary investigation as regards
Jinggoy Estrada, Yolanda T. Ricaforte and Edward specification "d" of the accusations in the information
Serapio, as witnessed by Gov. Luis Chavit Singson, in said case; and (2) reconsideration/reinvestigation of
among other witnesses, in the aggregate amount of the offenses in specifications "a," "b" and "c" to enable
FIVE HUNDRED FORTY FIVE MILLION PESOS petitioner to file his counter-affidavits as well as other
(P545,000.000.00), more or less, in consideration of necessary documents.
their protection from arrest or interference by law
enforcers in their illegal "jueteng" activities; and On April 25, 2001, the Third Division of the
Sandiganbayan issued a Resolution finding
(b) by misappropriating, converting and misusing for that:chanrob1es virtual 1aw library
his gain and benefit public fund in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), (p)robable cause for the offense of PLUNDER exists to
more or less, representing a portion of One Hundred justify issuance of warrants of arrest of accused former
Seventy Million Pesos (P170,000,000.00) tobacco President Joseph Ejercito Estrada, Mayor Jose
excise tax share allocated for the Province of Ilocos "Jinggoy" Estrada, Charlie "Atong" Ang, Edward
Sur under R.A. No. 7171, in conspiracy with co- Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe
accused Charlie Atong Ang, Alma Alfaro, Eleuterio Tan a.k.a Eleuterio Tan or Eleuterio Ramon Tan or Mr. Uy
a.k.a. Eleuterio Ramos Tan or Mr. Uy, and Jane Doe and Jane Doe a.k.a. Delia Rajas.
a.k.a. Delia Rajas, as witnessed by Gov. Luis Chavit
Singson, among other witnesses; and Subsequently, on May 31, 2001, the Third Division of
the Sandiganbayan issued a Resolution denying
(c) by directing, ordering and compelling the petitioners Omnibus Motion.
Government Service Insurance System (GSIS) and the
Social Security System (SSS) to purchase and buy a On June 15, 2001, petitioner filed a Motion for
combined total of 681,733,000 shares of stock of the Reconsideration of said Resolution but the same was
Belle Corporation in the aggregate gross value of One denied in a Resolution of June 25, 2001.
Billion Eight Hundred Forty-Seven Million Five Hundred
Seventy Eight Thousand Pesos and Fifty Centavos Meanwhile, on June 14, 2001, petitioner filed a Motion
(P1,847,578,057.50), for the purpose of collecting for to Quash the information in Criminal Case No. 26558,
his personal gain and benefit, as in fact he did collect invoking the following grounds: (1) the facts charged
and receive the sum of ONE HUNDRED EIGHTY NINE do not constitute an indictable offense as R.A. No.
MILLION SEVEN HUNDRED THOUSAND FIFTY SEVEN 7080, the statute on which it is based, is
PESOS (P189,700,000.00) as commission for said unconstitutional; and (2) the information charges more
stock purchase; and than one offense.

(d) by unjustly enriching himself in the amount of The People of the Philippines filed an Opposition
thereto on June 21, 2001. Petitioner filed his Reply to Section 1 (d) of the same law defines "ill-gotten
the Opposition on June 28, 2001. wealth" as "any asset, property, business enterprise or
material possession of any person within the purview
On July 9, 2001, the Third Division of the of Section Two (2)" hereof, acquired by him directly or
Sandiganbayan issued its Resolution denying indirectly through dummies, nominees, agents,
petitioners motion to quash. subordinates, and/or business associates by any
combination or series of the following means or similar
Petitioner thus filed the instant petition schemes:chanrob1es virtual 1aw library
for certiorari and prohibition, claiming that the
Sandiganbayan committed grave abuse of discretion in 1. Through misappropriation, conversion, misuse or
denying his motion to quash the information in malversation of public funds or raids on the public
Criminal Case No. 26558. Petitioner argues that R.A. treasury;
No. 7080 is unconstitutional on the following
grounds:chanrob1es virtual 1aw library 2. By receiving, directly or indirectly, any commission,
gift, share, percentage, kickbacks or any other form of
I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS pecuniary benefit from any person and/or entity in
VAGUENESS connection with any government contract or project or
by reason of the office or position of the public officer
II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE concerned;
ACCUSED TO KNOW THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM 3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE Government or any of its subdivisions, agencies or
CONSTITUTIONAL PRESUMPTION OF INNOCENCE BY instrumentalities or government-owned or controlled
LOWERING THE QUANTUM OF EVIDENCE NECESSARY corporations and their subsidiaries;
FOR PROVING THE COMPONENT ELEMENTS OF
PLUNDER 4. By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form
IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF of interest or participation including the promise of
THE LEGISLATURE TO DELIMIT THE REASONABLE future employment in any business enterprise or
DOUBT STANDARD AND TO ABOLISH THE ELEMENT OF undertaking;
MENS REA IN MALA IN SE CRIMES BY CONVERTING
THESE TO MALA PROHIBITA, IN VIOLATION OF THE 5. By establishing agricultural, industrial or commercial
DUE PROCESS CONCEPT OF CRIMINAL monopolies or other combination and/or
RESPONSIBILITY. 5 implementation of decrees and orders intended to
benefit particular persons or special interests; or
The provisions of law involved
6. By taking undue advantage of official position,
Section 2 of R.A. No. 7080 provides:chanrob1es virtual authority, relationship, connection or influence to
1aw library unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people
Definition of the Crime of Plunder; Penalties. Any and the Republic of the Philippines. 6
public officer who, by himself or in connivance with
members of his family, relatives by affinity or On the other hand, Section 4 states:chanrob1es virtual
consanguinity, business associates, subordinates or 1aw library
other persons, amasses, accumulates or acquires ill-
gotten wealth through a combination or series of overt Rule of Evidence For purposes of establishing the
or criminal acts as described in Section 1 (d) hereof in crime of plunder, it shall not be necessary to prove
the aggregate amount or total value of at least Fifty each and every criminal act done by the accused in
million pesos (P50,000,000.00) shall be guilty of the furtherance of the scheme or conspiracy to amass,
crime of plunder and shall be punished by reclusion accumulate or acquire ill-gotten wealth, it being
perpetua to death. Any person who participated with sufficient to establish beyond reasonable doubt a
the said public officer in the commission of an offense pattern of overt or criminal acts indicative of the
contributing to the crime of plunder shall likewise be overall unlawful scheme or conspiracy.
punished for such offense. In the imposition of
penalties, the degree of participation and the Petitioners theory
attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, Petitioner asserts that R.A. No. 7080 is vague and
shall be considered by the court. The court shall overbroad on its face, and suffers from structural
declare any and all ill-gotten wealth and their interests deficiency and ambiguity. 7 In sum, he maintains that
and other incomes and assets including the properties the law does not afford an ordinary person reasonable
and shares of stocks derived from the deposit or notice that his actuation will constitute a criminal
investment thereof forfeited in favor of the State. (As offense. More particularly, petitioner argues that the
amended by Sec. 12, RA No. 7659) terms "combination" and "series" are not clearly
defined, citing that in a number of cases, the United
States (U.S.) federal courts in deciding cases under the proved," it being sufficient to established beyond
Racketeer Influenced and Corrupt Organizations Act reasonable doubt a pattern of overt or criminal acts
(RICO law), after which the Plunder Law was indicative of the overall unlawful scheme or
patterned, have given different interpretations to conspiracy." 13
"series of acts or transactions." 8 In addition, the
terms "raid on the public treasury," "receiving or Finally, petitioner alleges that it is beyond the power of
accepting a gift," "commission," "kickbacks," "illegal or Congress to delimit the reasonable doubt standard and
fraudulent conveyance or disposition of assets," to abolish the element of mens rea in mala in se
"monopolies or other combinations," "special crimes by converting these to mala prohibita, thereby
interests," "taking undue advantage of official making it easier for the prosecution to prove
position," "unjustly enrich" all suffer from overbreadth malversation, bribery, estafa and other crimes
which is a form of vagueness. 9 committed by public officers since criminal intent need
not be established. 14
In arguing that the law on plunder is vague and
impermissibly broad, petitioner points out that the Considering the infringement to the constitutionally-
terms "combination" and series" used in the phrase guaranteed right to due process of an accused,
"any combination or series of the following means or petitioner contends that R.A. No. 7080 cannot be
similar schemes" are not defined under the statute. accorded any presumption of constitutional validity.
The use of these terms in the law allegedly raises
several questions as to their meaning and import. Respondents theory

Petitioner posits the following queries: "Does it On the other hand, Respondents argue that the
(referring to the term "series") mean two, three, four, "particular elements constituting the crime of plunder"
of the overt or criminal acts listed in Section 1 (d)? are stated with "definiteness and certainty," as
Would it mean two or more related enterprises falling follows:chanrob1es virtual 1aw library
under at least two of the means or similar schemes
listed in the law, or just a joint criminal enterprise? (1) There is a public officer who acts by himself or in
Would it require substantial identity of facts and connivance with members of his family, relatives by
participants, or merely a common pattern of action? affinity or consanguinity, business associates,
Would it imply close connection between acts, or a subordinates or other persons;
direct relationship between the charges? Does the
term mean a factual relationship between acts or (2) There is an amassing, accumulating or acquiring of
merely a common plan among conspirators?" 10 ill-gotten wealth;

The term "combination" is allegedly equally equivocal. (3) The total amount of ill-gotten wealth so amassed,
According to petitioner, it is not clear from the law if accumulated or acquired is at least Fifty Million Pesos
said term covers time, place, manner of commission, (P50,000,000.00); and
or the principal characters. Thus petitioner asks: "Does
it (referring to the term "combination") include any (4) The ill-gotten wealth, which is defined as any
two or more acts, whether legal or illegal, or does the asset, property, business enterprise or material
law require that the combination must include at least possession of any person within the purview of Section
two of the means or similar schemes laid down in R.A. Two (2) of R.A. No. 7080, was acquired by him directly
7080? Does it cover transactions that have occurred in or indirectly through dummies, nominees, agents,
the same place or area, or in different places, no subordinates, and or business associates by any
matter how far apart? Does combination include any combination or series of the means or similar schemes
two or more overt acts, no matter how far apart in enumerated in Section 1(d). 15
time, or does it contemplate acts committed within a
short period of time? Does the combination cover the Moreover, Respondents maintain that assuming that
modus operandi of the crimes, or merely the evidence there is some vagueness in the law, it need not be
to be used at the trial?" 11 declared unconstitutional but may be clarified by
judicial construction. 16 Respondents further add that
It is also argued that the phrase "pattern of overt or the ordinary import of the terms "combination" and
criminal acts indicative of the overall scheme or "series" should prevail, as can be gleaned from the
conspiracy" adds to the vagueness of the law because deliberations of the Congress in the course of its
"pattern" is not defined therein and is not included in passage of the law. According to respondents, "series
the definition of the crime of plunder even though it is of overt criminal acts" simply mean a repetition of at
an essential element of said crime. 12 least two of any of those enumerated acts found in
Section 1 (d) of R A. 7080. And "combination" means a
Petitioner also maintains that the Plunder Law violates product of combining of at least one of any of those
the due process clause and the constitutional enumerated acts described in Section 1 (d) with at
presumption of innocence by lowering the quantum of least one of any of the other acts so enumerated.
evidence necessary for proving the component Respondents score petitioner for arguing on the basis
elements of plunder because Section 4 does not of federal courts decisions on the RICO law, citing that
require that each and every criminal act done by the the U.S. courts have consistently rejected the
accused in furtherance of the scheme or conspiracy be contention that said law is void for being vague. 17
Respondents deny that the Plunder Law dispenses with 3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080
the requirement of proof beyond reasonable doubt. IS A MALUM PROHIBITUM AND IF SO, WHETHER IT IS
While there may be no necessity to prove each and WITHIN THE POWER OF CONGRESS TO SO CLASSIFY
every other act done by the accused in furtherance of THE SAME. 23
the scheme to acquire ill-gotten wealth, it is still
necessary for the prosecution to prove beyond Thereafter, both parties filed their respective
reasonable doubt the pattern of overt or criminal acts memoranda in which they discussed the points which
indicative of the overall scheme or conspiracy, as well they raised in their earlier pleadings and during the
as all the other elements of the offense of plunder. 18 hearing.
Respondents also point out that conspiracy itself is not
punishable under the Plunder Law, which deals with I believe that there is merit in the petition.
conspiracy as a means of incurring criminal liability.
19 A penal statute which violates constitutional

Respondents likewise contend that it is within the guarantees of individual rights is void.
inherent powers and wisdom of the legislature to
determine which acts are mala prohibita in the same Every law enacted by Congress enjoys a presumption
way that it can declare punishable an act which is of constitutionality, 24 and the presumption prevails in
inherently not criminal in nature. 20 the absence of contrary evidence. 25 A criminal statute
is generally valid if it does not violate constitutional
In conclusion, Respondents assert that petitioner has guarantees of individual rights. 26 Conversely, when a
failed to overcome the presumption of constitutionality constitutionally protected right of an individual is in
of R.A. No. 7080. danger of being trampled upon by a criminal statute,
such law must be struck down for being void. 27
Petitioners Reply
One of the fundamental requirements imposed by the
Petitioner, in his Reply to Comment, draws attention to Constitution upon criminal statutes is that pertaining to
Section 4, arguing that the provision states the "most clarity and definiteness. Statutes, particularly penal
important element, which is the common thread that laws, that fall short of this requirement have been
ties the component acts together: "a pattern of overt declared unconstitutional for being vague. This "void-
or criminal acts indicative of the overall unlawful for-vagueness" doctrine is rooted in the basic concept
scheme or conspiracy 21 and raises the following of fairness as well as the due process clause of the
questions:chanrob1es virtual 1aw library Constitution.

(a) Reference is made to a "pattern of overt or criminal The Constitution guarantees both substantive and
acts." The disjunctive "or" is used. Will a pattern of procedural due process 28 as well as the right of the
acts, which are overt but not criminal in themselves, accused to be informed of the nature and cause of the
be indicative of an overall unlawful scheme or accusation against him. 29 A criminal statute should
conspiracy? not be so vague and uncertain that "men of common
intelligence must necessarily guess as to its meaning
(b) Under what specific facts or circumstances will a and differ as to its application. 30
"pattern" be "indicative" of the overall unlawful scheme
or conspiracy? There are three distinct considerations for the
vagueness doctrine. First, the doctrine is designed to
(c) Under what specific facts or circumstances will the ensure that individuals are properly warned ex ante of
required "pattern" or "scheme" even be said to be the criminal consequences of their conduct. This "fair
present or to exist? notice" rationale was articulated in United States v.
Harriss: 31
(d) When is there an "unlawful scheme or conspiracy?"
22 The constitutional requirement of definiteness is
violated by a criminal statute that fails to give a person
Issues raised in the oral arguments of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. The
Oral arguments were heard on September 18, 2001. At underlying principle is that no man shall be held
said hearing, the Court defined the issues for criminally responsible for conduct which he could not
resolution as follows:chanrob1es virtual 1aw library reasonably understand to be proscribed. 32

1) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL Second, and viewed as more important, the doctrine is
FOR BEING VAGUE; intended to prevent arbitrary and discriminatory law
enforcement. 33 Vague laws are invariably
2) WHETHER R.A. NO. 7080 REQUIRES LESS "standardless" and as such, they afford too great an
EVIDENCE FOR PROVING THE PREDICATE CRIMES OF opportunity for criminal enforcement to be left to the
PLUNDER AND THEREFORE VIOLATES THE RIGHT OF unfettered discretion of police officers and prosecutors.
THE ACCUSED TO DUE PROCESS; and 34 Third, vague laws fail to provide sufficient guidance
to judges who are charged with interpreting statutes.
Where a statute is too vague to provide sufficient It has been incorrectly suggested 46 that petitioner
guidance, the judiciary is arguably placed in the cannot mount a "facial challenge" to the Plunder Law,
position of usurping the proper function of the and that "facial" or "on its face" challenges seek the
legislature by "making the law" rather than total invalidation of a statute. 47 Citing Broadrick v.
interpreting it. 35 Oklahoma, 48 it is also opined that "claims of facial
overbreadth have been entertained in cases involving
While the dictum that laws be clear and definite does statutes which, by their terms, seek to regulate only
not require Congress to spell out with mathematical spoken words" and that "overbreadth claims, if
certainty the standards to which an individual must entertained at all, have been curtailed when invoked
conform his conduct, 36 it is necessary that statutes against ordinary criminal laws that are sought to be
provide reasonable standards to guide prospective applied to protected conduct." For this reason, it is
conduct. 37 And where a statute imposes criminal argued further that "on its face invalidation of statutes
sanctions, the standard of certainty is higher. 38 The has been described as manifestly strong medicine, to
penalty imposable on the person found guilty of be employed sparingly and only as a last resort." A
violating R.A. No. 7080 is reclusion perpetua to death. reading of Broadrick, however, shows that the doctrine
39 Given such penalty, the standard of clarity and involved therein was the doctrine of overbreadth. Its
definiteness required of R.A. No. 7080 is unarguably application to the present case is thus doubtful
higher than that of other laws. 40 considering that the thrust at hand is to determine
whether the Plunder Law can survive the vagueness
Void-for-vagueness doctrine challenge mounted by petitioner. A noted authority on
constitutional law, Professor Lockhart, explained that
applies to criminal laws. "the Court will resolve them (vagueness challenges) in
ways different from the approaches it has fashioned in
A view has been proffered that "vagueness and the law of overbreadth." 49 Thus, in at least two cases,
overbreadth doctrines are not applicable to penal 50 the U.S. courts allowed the facial challenges to
laws." 41 These two concepts, while related, are vague criminal statutes even if these did not implicate
distinct from each other. 42 On one hand, the doctrine free speech.
of overbreadth applies generally to statutes that
infringe upon freedom of speech. 43 On the other In Kolender v. Lawson, 51 petitioners assailed the
hand, the "void-for-vagueness" doctrine applies to constitutionality of a California criminal statute which
criminal laws, not merely those that regulate speech or required persons who loiter or wander on the streets to
other fundamental constitutional rights. 44 The fact provide a credible and reasonable identification and to
that a particular criminal statute does not infringe account for their presence when requested by a peace
upon free speech does not mean that a facial challenge officer under circumstances that would justify a valid
to the statute on vagueness grounds cannot succeed. stop. The U.S. Supreme Court held that said statute
45 was unconstitutionally vague on its face within the
meaning of the due process clause of the Fourteenth
As earlier intimated, the "vagueness doctrine" is Amendment because it encourages arbitrary
anchored on the constitutionally-enshrined right to due enforcement by failing to clarify what is contemplated
process of law. Thus, as in this case that the "life, by the requirement that a suspect provide a "credible
liberty and property" of petitioner is involved, the and reasonable identification." Springfield v. Oklahoma
Court should not hesitate to look into whether a 52 on the other hand involved a challenge to a
criminal statute has sufficiently complied with the Columbus city ordinance banning certain assault
elementary requirements of definiteness and clarity. It weapons. The court therein stated that a criminal
is an erroneous argument that the Court cannot apply statute may be facially invalid even if it has some
the vagueness doctrine to penal laws. Such stance is conceivable application. It went on to rule that the
tantamount to saying that no criminal law can be assailed ordinances definition of "assault weapon" was
challenged however repugnant it is to the unconstitutionally vague, because it was
constitutional right to due process. "fundamentally irrational and impossible to apply
consistently by the buying public, the sportsman, the
While admittedly, penal statutes are worded in law enforcement officer, the prosecutor or the judge."
reasonably general terms to accomplish the 53
legislatures objective of protecting the public from
socially harmful conduct, this should not prevent a It is incorrect to state that petitioner has made "little
vagueness challenge in cases where a penal statute is effort to show the alleged invalidity of the statute as
so indeterminate as to cause the average person to applied to him, as he allegedly "attacks on their face
guess at its meaning and application. For if a statute not only 1 (d)(1) and (2) of R.A. 7080 under which
infringing upon freedom of speech may be challenged he is charged, but also its other provisions which deal
for being vague because such right is considered as with plunder committed by illegal or fraudulent
fundamental, with more reason should a vagueness disposition of government assets (1(d)(3)),
challenge with respect to a penal statute be allowed acquisition of interest in business (1(d)(4)), and
since the latter involve deprivation of liberty, and even establishment of monopolies and combinations or
of life which, inarguably, are rights as important as, if implementation of decrees intended to benefit
not more than, free speech. particular persons or special interests (1(d)(5))." 54
Notably, much of petitioners arguments dealt with the c. Must the "combination or series" of "overt or
vagueness of the key phrases "combination or series" criminal acts" involving the aggregate amount of at
and "pattern of overt or criminal acts indicative of the least P50 million be conceived as such a scheme or a
overall unlawful scheme or conspiracy" which go into "pattern of overt or criminal acts" from inception by
the very nature of the crime for which he is charged. the accused?

Taking into consideration that the Plunder Law is a d. What would constitute a "pattern" ? What linkage
penal statute that imposes the supreme penalty of must there be between and among the acts to
death, and that petitioner in this case clearly has constitute a "pattern" ? Need there be a linkage as to
standing to question its validity inasmuch as he has the persons who conspire with one another, and a
been charged thereunder and that he has been for linkage as to all the acts between and among them?
sometime now painfully deprived of his liberty, it
behooves this Court to address the challenge on the e. When Section 4 speaks of "indicative of the overall
validity of R.A. No. 7080. unlawful scheme or conspiracy," would this mean that
the "scheme" or "conspiracy" should have been
Men steeped in law find conceived or decided upon in its entirety, and by all of
the participants?
difficulty in understanding plunder.
f. When committed in connivance "with members of his
The basic question that arises, therefore, is whether family, relatives by affinity or consanguinity, business
the clauses in Section 2 combination or series of associates, subordinates or other persons" or through
overt or criminal acts as described in Section 1 (d) "dummies, nominees, agents, subordinates and/or
hereof business associates", would such fact be part of the
"pattern of overt or criminal acts" and of the "overall
and Section 1 (d), which provides unlawful scheme or conspiracy" such that all of those
who are alleged to have participated in the crime of
. . . by any combination or series of the following plunder must have participated in each and every act
means or similar schemes:chanrob1es virtual 1aw allegedly constituting the crime of plunder? And as in
library conspiracy, conspired together from inception to
commit the offense?
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public g. Within what time frame must the acts be committed
treasury; so as to constitute a "combination or series" ?

x x x I respectfully disagree with the majority that


"ascertainable standards and well-defined parameters"
are provided in the law 55 to resolve these basic
6) By taking undue advantage of official position, questions.
authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense Even men steeped in the knowledge of the law are in a
and to the damage and prejudice of the Filipino people quandary as to what constitutes plunder. The Presiding
and the Republic of the Philippines. Justice of the Sandiganbayan, Justice Francis
Garchitorena, admitted that the justices of said court
as qualified by Section 4 which also speaks of the "have been quarreling with each other in finding ways
"scheme or conspiracy to amass, accumulate or to determine what [they] understand by plunder." 56
acquire ill-gotten wealth" and of "a pattern of overt or Senator Neptali Gonzales also noted during the
criminal acts indicative of the overall unlawful scheme deliberations of Senate Bill No. 733 that the definition
or conspiracy," are clear enough that a person "of of plunder under the law is vague. He bluntly declared:
common intelligence" need not guess at their meaning "I am afraid that it might be faulted for being violative
and differ as to their application. of the due process clause and the right to be informed
of the nature and cause of the accusation of an
The above raise several difficult questions of meaning accused. 57 Fr. Bernas, for his part, pointed to several
which go to the very essence of the offense, such problematical portions of the law that were left
as:chanrob1es virtual 1aw library unclarified. He posed the question: "How can you have
a series of criminal acts if the elements that are
a. How many acts would constitute a "combination or supposed to constitute the series are not proved to be
series?" criminal?" 58

b. Must the acts alleged to constitute the "combination The meanings of "combination" and "series"
or series" be similar in nature? Note that Section 1 (d)
speaks of "similar schemes" while Section 4 speaks of as used in R.A. No. 7080 are not clear.
"the scheme" and of "a pattern of overt or criminal
acts indicative of the overall unlawful scheme or Although the law has no statutory definition of
conspiracy."cralaw virtua1aw library "combination" or "series", the majority is of the view
that resort can be had to the ordinary meaning of
these terms. Thus, Websters Third New International
Dictionary gives the meaning of "combination" : "the THE CHAIRMAN (REP. GARCIA): That be referred to
result or product or product of combining: a union or series. Yeah.
aggregate made of combining one thing with another."
59 REP. ISIDRO: No, no. Supposing one act is repeated,
so there are two.
In the context of R.A. No. 7080, "combination" as
suggested by the Solicitor General means that at least THE CHAIRMAN (REP. GARCIA): A series.
two of the enumerated acts found in Section 1(d), i.e.,
one of any of the enumerated acts, combined with REP. ISIDRO: Thats not [a] series. Its a combination.
another act falling under any other of the enumerated Because when we say combination or series, we seem
means may constitute the crime of plunder. With to say that two or more, di ba?
respect to the term "series," the majority states that it
has been understood as pertaining to "two or more THE CHAIRMAN: (REP. GARCIA): Yes, This
overt or criminal acts falling under the same category" distinguishes it, really, from the ordinary crimes. That
60 as gleaned from the deliberations on the law in the is why, I said, that is a very good suggestion because
House of Representatives and the Senate. if it is only one act, it may fall under ordinary crime but
we have here a combination or series of overt or
Further, the import of "combination" or "series" can be criminal acts. So. . .
ascertained, the majority insists, 61 from the following
deliberations in the Bicameral Conference Committee HON. ISIDRO: I know what you are talking about. For
on May 7, 1991:chanrob1es virtual 1aw library example, through misappropriation, conversion,
misuse or malversation of public funds who raids the
REP. ISIDRO: I am just intrigued again by our public treasury, now, for example, misappropriation, if
definition of plunder. We say, THROUGH A there are a series of misappropriations?
COMBINATION OR SERIES OF OVERT OR CRIMINAL
ACTS AS MENTIONED IN SECTION ONE HEREOF. Now x x x
when we say combination, we actually mean to say, if
there are two or more means, we mean to say that
number one and two or number one and something THE CHAIRMAN (REP. GARCIA): Series. One after the
else are included, how about a series of the same act? other eh di. . .
For example, through misappropriation, conversion,
misuse, will these be included also? THE CHAIRMAN (SEN. TAADA): So that would fall
under term "series" ?
THE CHAIRMAN (REP. GARCIA): Yeah, because we say
series. THE CHAIRMAN (REP. GARCIA): Series, oo.

REP. ISIDRO: Series. REP. ISIDRO: Now, if it is combination, ano, two


misappropriations . . .
THE CHAIRMAN (REP. GARCIA): Yeah, we include
series. THE CHAIRMAN (REP. GARCIA): Its not . . . two
misappropriations will not be combination. Series.
REP. ISIDRO: But we say we begin with a combination.
REP. ISIDRO: So, it is not a combination?
THE CHAIRMAN: (REP. GARCIA): Yes.
THE CHAIRMAN (REP. GARCIA): Yes.
REP. ISIDRO: When we say combination, it seems that
REP. ISIDRO: When you say "combination", two
different?
THE CHAIRMAN (REP. GARCIA): Two.
THE CHAIRMAN (REP. GARCIA): Yes.
REP. ISIDRO: Not only two but we seem to mean that
two of the enumerated means not twice of one THE CHAIRMAN (SEN. TAADA): Two different.
enumeration.
REP. ISIDRO: Two different acts.
THE CHAIRMAN: (REP. GARCIA): No, no, not twice.
THE CHAIRMAN (REP. GARCIA): For example, ha. . .
REP. ISIDRO: Not twice?
REP. ISIDRO: Now a series, meaning, repetition. . . 62
THE CHAIRMAN (REP. GARCIA): Yes. Combination is
not twice but combination, two acts. The following deliberations in the Senate are pointed to
by the majority 63 to show that the words
REP. ISIDRO: So in other words, thats it. When we "combination" and "series" are given their ordinary
say combination, we mean two different acts. It can meaning:chanrob1es virtual 1aw library
not be a repetition of the same act.
Senator Maceda. In line of our interpellations that of "series" so that two, for example, would that be
sometimes "one" or maybe even "two" acts may already a series? Or, three, what would be the basis
already result in such a big amount, on line 25, would for such determination? 65 (Emphasis supplied.)
the Sponsor consider deleting the words "a series of
overt or." To read, therefore: "or conspiracy The point raised by Senator Gonzales is crucial and
COMMITTED by criminal acts such as." Remove the well-taken. I share petitioners observation that when
idea of necessitating "a series." Anyway, the criminal penal laws enacted by Congress make reference to a
acts are in the plural. term or concept requiring a quantitative definition,
these laws are so crafted as to specifically state the
Senator Taada. That would mean a combination of exact number or percentage necessary to constitute
two or more of the acts mentioned in this. the elements of a crime. To cite a
few:jgc:chanrobles.com.ph
The President. Probably, two or more would be . . . .
"Band" "Whenever more than three armed
Senator Maceda Yes, because a series implies several malefactors shall have acted together in the
or many two or more. commission of an offense, it shall be deemed to have
been committed by a band." (Article 14[6], Revised
Senator Taada. Accepted, Mr. President. Penal Code) 66

x x x "Conspiracy" "A conspiracy exists when two or more


persons come to an agreement concerning the
commission of a felony and decide to commit it."
The President. If there is only one, then he has to be (Article 8, Revised Penal Code) 67
prosecuted under the particular crime. But when we
say acts of plunder there should be, at least, two or "Illegal Recruitment by a Syndicate" "Illegal
more. recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons
Senator Romulo. In other words, that is already conspiring and/or confederating with one another in
covered by existing laws, Mr. President. 64 carrying out any unlawful or illegal transaction,
enterprise or scheme . . ." (Section 38, Labor Code)
To my mind, resort to the dictionary meaning of the
terms "combination" and "series" as well as recourse "Large-scale Illegal Recruitment" "Illegal
to the deliberations of the lawmakers only serve to recruitment is deemed committed in large scale if
prove that R.A. No. 7080 failed to satisfy the strict committed against three (3) or more persons
requirements of the Constitution on clarity and individually or as a group." (Section 38, Labor Code)
definiteness. Note that the key element to the crime of
plunder is that the public officer, by himself or in "Organized/Syndicated Crime Group" " [M]eans a
conspiracy with others, amasses, accumulates, or group of two or more persons collaborating,
acquires "ill-gotten wealth" through a "combination or confederating or mutually helping one another for
series of overt or criminal acts" as described in Section purposes of gain in the commission of any crime."
1 (d) of the law. Senator Gonzales, during the (Article 62 (1)(1a), Revised Penal Code) 68
deliberations in the Senate, already raised serious
concern over the lack of a statutory definition of what "Swindling by a Syndicate" ." . . if the swindling
constitutes "combination" or "series", consequently, (estafa) is committed by a syndicate consisting of five
expressing his fears that Section 2 of R.A. No. 7080 or more persons formed with the intention of carrying
might be violative of due process:chanrob1es virtual out the unlawful or illegal act, transaction, enterprise
1aw library or scheme . . . ." (Section 1, P.D. No. 1689) 69

Senator Gonzales. To commit the offense of plunder, The deliberations of the Bicameral Conference
as defined in this Act and while constituting a single Committee and of the Senate cited by the majority,
offense, it must consist of a series of overt or criminal consisting mostly of unfinished sentences, offer very
acts, such as bribery, extortion, malversation of public little help in clarifying the nebulous concept of plunder.
funds, swindling, illegal exaction, and graft or corrupt All that they indicate is that Congress seemingly
practices act and like offenses. Now, Mr. President, I intended to hold liable for plunder a person who: (1)
think, this provision, by itself will be vague. I am afraid commits at least two counts of any one of the acts
that it might be faulted for being violative of the due mentioned in Section 1(d) of R.A. No. 7080, in which
process clause and the right to be informed of the case, such person commits plunder by a series of overt
nature and cause of accusation of an accused. criminal acts; or (2) commits at least one count of at
Because, what is meant by "series of overt or criminal least two of the acts mentioned in Section 1 (d), in
acts" ? I mean, would 2, 3, 4 or 5 constitute a series? which case, such person commits plunder by a
During the period of amendments, can we establish a combination of overt criminal acts. Said discussions
minimum of overt acts like, for example, robbery in hardly provide a window as to the exact nature of this
band? The law defines what is robbery in band by the crime.
number of participants therein. In this particular case
probably, we can statutorily provide for the definition A closer look at the exchange between Representatives
Garcia and Isidro and Senator Taada would imply that
initially, combination was intended to mean "two or THE CHAIRMAN (REP. GARCIA P.) For example, ha . .
more means," 70 i.e., "number one and two or number .
one and something else . . .," 71 "two of the
enumerated means not twice of one enumeration," 72 REP. ISIDRO. Now a series, meaning, repetition . . .
"two different acts." 73 Series would refer to "a
repetition of the same act." 74 However, the THE CHAIRMAN (SEN. TAADA). Yes.
distinction was again lost as can be gleaned from the
following:chanrob1es virtual 1aw library REP. ISIDRO. With that . . .

THE CHAIRMAN (REP. GARCIA) Yes. Combination is not THE CHAIRMAN (REP. GARCIA P.) Thank you.
twice but combination, two acts.
THE CHAIRMAN (SEN. TAADA). So, it could be a
REP. ISIDRO. So in other words, thats it. When we say series of any of the acts mentioned in paragraphs 1, 3,
combination, we mean, two different acts. It can not 4, 5 of Section 2 (d), or . . . 1 (d) rather, or a
be a repetition of the same act. combination of any of the acts mentioned in paragraph
1 alone, or paragraph 2 alone or paragraph 3 or
THE CHAIRMAN (REP. GARCIA). That be referred to paragraph 4.
series. Yeah.
THE CHAIRMAN (REP. GARCIA P.) I think combination
REP. ISIDRO. No, no. Supposing one act is repeated, maybe . . .which one? Series?
so there are two.
THE CHAIRMAN (SEN. TAADA) Series or combination.
THE CHAIRMAN (REP. GARCIA). A series.
REP. ISIDRO. Which one, combination or series or
REP. ISIDRO. Thats not series. Its a combination. series or combination?
Because when we say combination or series, we seem
to say that two or more, di ba? THE CHAIRMAN (SEN. TAADA) Okay. Ngayon doon sa
definition, ano, Section 2, definition, doon sa portion
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes ng . . . Saan iyon? As mentioned, as described . . .
it really the ordinary Thats why I said, thats a very
good suggestion, because if its only one act, it may THE CHAIRMAN (REP. GARCIA P.) Described. I think
fall under ordinary crime. But we have here a that is . . .
combination or series, of overt or criminal acts"
(Emphasis supplied). 75 THE CHAIRMAN (SEN. TAADA) . . . better than
"mentioned." Yes.
x x x
THE CHAIRMAN (REP. GARCIA P.) Okay?

THE CHAIRMAN (REP. GARCIA P.) Series. One after the REP. ISIDRO. Very good.
other eh di . . .
THE CHAIRMAN. (SEN. TAADA) Oo, marami pong
THE CHAIRMAN (SEN. TAADA) So, that would fall salamat.
under the term "series" ?
THE CHAIRMAN (REP. GARCIA P.) Maraming salamat
THE CHAIRMAN (REP. GARCIA P.) Series, oo. po.

REP. ISIDRO. Now, if it is combination, ano, two The meeting was adjourned at 1:33 p.m." 76
misappropriations. . . (Emphasis supplied.)

THE CHAIRMAN (REP. GARCIA) Its not . . . two The aforequoted deliberations, especially the latter
misappropriations will not be combination. Series. part thereof, would show a dearth of focus to render
precise the definition of the terms. Phrases were
REP. ISIDRO. So, it is not a combination? uttered but were left unfinished. The examples cited
were not very definite. Unfortunately, the deliberations
THE CHAIRMAN. (REP. GARCIA P.) Yes. were apparently adjourned without the Committee
members themselves being clear on the concept of
REP. ISIDRO. When we say "combination", two series and combination.
different?
Moreover, if "combination" as used in the law simply
THE CHAIRMAN (REP. GARCIA P.) Yes. refers to the amassing, accumulation and acquisition of
ill-gotten wealth amounting to at least P50 Million
THE CHAIRMAN (SEN. TAADA) Two different. through at least two of the means enumerated in
Section 1 (d), and "series," to at least two counts of
REP. ISIDRO. Two different acts. one of the modes under said section, the accused
could be meted out the death penalty for acts which, if with homicide, does not justify the imposition of the
taken separately, i.e., not considered as part of the penalty of reclusion perpetua to death in case plunder
combination or series, would ordinarily result in the is committed. Taken singly, rape is punishable by
imposition of correctional penalties only. If such reclusion perpetua; 79 and homicide, by reclusion
interpretation would be adopted, the Plunder law would temporal. 80 Hence, the increase in the penalty
be so oppressive and arbitrary as to violate due imposed when these two are considered together as a
process and the constitutional guarantees against cruel special complex crime is not too far from the penalties
or inhuman punishment. 77 The penalty would be imposed for each of the single offenses. In contrast, as
blatantly disproportionate to the offense. Petitioners shown by the examples above, there are instances
examples illustrate this absurdity:chanrob1es virtual where the component crimes of plunder, if taken
1aw library separately, would result in the imposition of
correctional penalties only; but when considered as
a. One act of indirect bribery (penalized under Art. 211 forming part of a series or combination of acts
of the Revised Penal Code with prision correccional in constituting plunder, could be punishable by reclusion
its medium and maximum periods), perpetua to death. The disproportionate increase in the
penalty is certainly violative of substantive due process
combined with and constitute a cruel and inhuman punishment.

one act of fraud against the public treasury (penalized It may also be pointed out that the definition of "ill-
under Art. 213 of the Revised Penal Code with prision gotten wealth" in Section 1(d) has reference to the
correccional in its medium period to prision mayor in acquisition of property (by the accused himself or in
its minimum period). connivance with others) "by any combination or series"
of the "means" or "similar schemes" enumerated
equals therein, which include the following:chanrob1es virtual
1aw library
Plunder (punished by reclusion perpetua to death plus
forfeiture of assets under R. A. 7080) x x x

b. One act of prohibited transaction (penalized under


Art. 215 of the Revised Penal Code with prision 4. By obtaining, receiving or accepting directly or
correccional in its minimum period or a fine ranging indirectly any shares of stock, equity or any other
from P200 to P 1,000 or both). forms of interest or participation including the promise
of future employment or any business enterprise or
combined with undertakings;

one act of establishing a commercial monopoly 5. By establishing agricultural, industrial or commercial


(penalized under Art. 186 of Revised Penal Code with monopolies or other combination and/or
prision correccional in its minimum or a fine ranging implementation of decrees and orders intended to
from P200 to P6,000, or both. benefit particular persons or special interests;

equals x x x

Plunder (punished by reclusion perpetua to death, and


forfeiture of assets under R.A. 7080). The above-mentioned acts are not, by any stretch of
the imagination, criminal or illegal acts. They involve
c. One act of possession of prohibited interest by a the exercise of the right to liberty and property
public officer (penalized with prision correccional in its guaranteed by Article III, Section 1 of the Constitution
minimum period or a fine of P200 to P1,000, or both which provides that "No person shall be deprived of
under Art. 216 of the Revised Penal Code). life, liberty or property without due process of law, nor
shall any person be denied the equal protection of the
combined with laws." Receiving or accepting any shares of stock is not
per se objectionable. It is in pursuance of civil liberty,
one act of combination or conspiracy in restraint of which includes "the right of the citizen to be free to use
trade (penalized under Art. 186 of the Revised Penal his faculties in all lawful ways; . . . to earn his
Code with prision correccional in its minimum period, livelihood by any lawful calling; to pursue any
or a fine of P200 to P1,000, or both), avocation, and/or that purpose, to enter into all
contracts which may be proper, necessary and
equals essential to his carrying out these purposes to a
successful conclusion. 81 Nor is there any impropriety,
plunder (punished by reclusion perpetua to death, and immorality or illegality in establishing agricultural,
forfeiture of assets). 78 industrial or commercial monopolies or other
combination and/or implementation of decrees and
The argument that higher penalties may be imposed orders even if they are intended to benefit particular
where two or more distinct criminal acts are combined persons or special interests. The phrases "particular
and are regarded as special complex crimes, i.e., rape persons" and "special interests" may well refer to the
poor, 82 the indigenous cultural communities, 83 pattern of overt or criminal acts indicative of the
labor, 84 farmers, 85 fisherfolk, 86 women, 87 or overall scheme or conspiracy."cralaw virtua1aw library
those connected with education, science and
technology, arts, culture and sports. 88 That pattern is an essential element of the crime of
plunder is evident from a reading of the assailed law in
In contrast, the monopolies and combinations its entirety. It is that which would distinguish plunder
described in Article 186 of the Revised Penal Code are from isolated criminal acts punishable under the
punishable because, as specifically defined therein, Revised Penal Code and other laws, for without the
they are "on restraint of trade or commerce or to existence a "pattern of overt or criminal acts indicative
prevent by artificial means of free competition in the of the overall scheme or conspiracy" to acquire ill-
market, or the object is "to alter the price" of any gotten wealth, a person committing several or even all
merchandise "by spreading false rumors," or to of the acts enumerated in Section 1(d) cannot be
manipulate market prices in restraint of trade. There convicted for plunder, but may be convicted only for
are no similar elements of monopolies or combinations the specific crimes committed under the pertinent
as described in the Plunder Law to make the acts provisions of the Revised Penal Code or other laws.
wrongful.
For this reason, I do not agree that Section 4 is merely
If, as interpreted by the Solicitor General, "series" a rule of evidence or a rule of procedure. It does not
means a "repetition" or pertains to "two or more" acts, become such simply because its caption states that it
and "combination as defined in the Websters Third is, although its wording indicates otherwise. On the
New International Dictionary is "the result or product contrary, it is of substantive character because it spells
of combining one thing with another," 89 then, the out a distinctive element of the crime which has to be
commission of two or more acts falling under established, i.e., an overall unlawful "scheme or
paragraphs (4) and (5) of Section 1(d) would make conspiracy" indicated by a "pattern of overt or criminal
innocent acts protected by the Constitution as criminal, acts" or means or similar schemes "to amass,
and punishable by reclusion perpetua to death. accumulate or acquire ill-gotten wealth."cralaw
virtua1aw library
RA. No. 7080 does not define "pattern,"
The meaning of the phrase "pattern of overt or
an essential element of the crime of plunder. criminal acts indicative of the overall unlawful scheme
or conspiracy," however, escapes me. As in
Granting arguendo that, as asserted by the majority, "combination" and "series," R.A. No. 7080 does not
"combination" and "series" simplistically mean the provide a definition of "pattern" as well as "overall
commission of two or more of the acts enumerated in unlawful scheme." Reference to the legislative history
Section 1(d), 90 still, this interpretation does not cure of R.A. No. 7080 for guidance as to the meanings of
the vagueness of R.A. No. 7080. In construing the these concepts would be unavailing, since the records
definition of "plunder," Section 2 of R.A. No. 7080 of the deliberations in Congress are silent as to what
must not be read in isolation but rather, must be the lawmakers mean by these terms.
interpreted in relation to the other provisions of said
law. It is a basic rule of statutory construction that to Resort to the dictionary meanings of "pattern" and
ascertain the meaning of a law, the same must be read "scheme" is, in this case, wholly inadequate. These
in its entirety. 91 Section 1 taken in relation to Section words are defined as:chanrob1es virtual 1aw library
4 suggests that there is something to plunder beyond
simply the number of acts involved and that a grand pattern: an arrangement or order of things or activity.
scheme to amass, accumulate or acquire ill-gotten 92
wealth is contemplated by R.A. No. 7080. Sections 1
and 2 pertain only to the nature and quantitative scheme: design; project; plot. 93
means or acts by which a public officer, by himself or
in connivance with other persons, "amasses, At most, what the use of these terms signifies is that
accumulates or acquires ill-gotten wealth." Section 4, while multiplicity of the acts (at least two or more) is
on the other hand, requires the presence of elements necessary, this is not sufficient to constitute plunder.
other than those enumerated in Section 2 to establish As stated earlier, without the element of "pattern"
that the crime of plunder has been committed because indicative of an "overall unlawful scheme," the acts
it speaks of the necessity to establish beyond merely constitute isolated or disconnected criminal
reasonable doubt a "pattern of overt or criminal acts offenses punishable by the Revised Penal Code or
indicative of the overall unlawful scheme or other special laws.
conspiracy."cralaw virtua1aw library
The commission of two or more of the acts falling
Clearly, it will not suffice that the "illegal wealth" under Section 1(d) is no guarantee that they fall into a
amassed is at least Fifty Million Pesos and that this was "pattern" or "any arrangement or order." It is not the
acquired by any two or more of the acts described in number of acts but the relationship that they bear to
Section 1(d); it is necessary that these acts constitute each other or to some external organizing principle
a "combination or series" of acts done in furtherance of that renders them "ordered" or "arranged"
"the scheme or conspiracy to amass, accumulate or :chanrob1es virtual 1aw library
acquire ill-gotten wealth", and which constitute "a
A pattern is an arrangement or order of things, or Supreme Court, through Justice William J. Brennan,
activity, and the mere fact that there are a number of Jr., undertook the task of developing a meaningful
predicates is no guarantee that they fall into an concept of "pattern" within the existing statutory
arrangement or order. It is not the number of framework. 103 Relying heavily on legislative history,
predicates but the relationship that they bear to each the US Supreme Court in that case construed "pattern"
other or to some external organizing principle that as requiring "continuity plus relationship." 104 The US
renders them ordered or arranged. 94 Supreme Court formulated the "relationship
requirement" in this wise: "Criminal conduct forms a
In any event, it is hardly possible that two predicate pattern if it embraces criminal acts that have the same
acts can form a pattern:chanrob1es virtual 1aw library or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated
The implication is that while two acts are necessary, by distinguishing characteristics and are not isolated
they may not be sufficient. Indeed, in common events." 105 Continuity is clarified as "both a closed
parlance, two of anything will not generally form a and open-ended concept, referring either to a closed
pattern. 95 period of repeated conduct, or to past conduct that by
its nature projects into the future with a threat of
In H. J. Inc. v. Northwestern Bell Telephone Co. Et. Al. repetition." 106
96 (hereinafter referred to as Northwestern), the U.S.
Court reiterated the foregoing doctrine:chanrob1es In his separate concurring opinion, Justice Scalia
virtual 1aw library rejected the majoritys formulation. The "talismanic
phrase" of "continuity plus relationship" is, as put by
. . . Nor can we agree with those courts that have Justice Scalia, about as helpful as advising the courts
suggested that a pattern is established merely by that "life is a fountain." He writes:chanrob1es virtual
proving two predicate acts. 97 1aw library

Respondents metaphorical illustration of "pattern" as a . . . Thus, when 1961(5) says that a pattern "requires
wheel with spokes (the overt or criminal acts of the at least two acts of racketeering activity" it is
accused) meeting at a common center (the acquisition describing what is needful but not sufficient. (If that
of ill-gotten wealth) and with a rim (the overall were not the case, the concept of "pattern" would have
unlawful scheme or conspiracy) of the wheel enclosing been unnecessary, and the statute could simply have
the spokes, is off tangent. Their position that two attached liability to "multiple acts of racketeering
spokes suffice to make a wheel, even without regard to activity"). But what that something more is, is beyond
the relationship the spokes bear to each other clearly me. As I have suggested, it is also beyond the Court.
demonstrates the absurdity of their view, for how can Todays opinion has added nothing to improve our
a wheel with only two spokes which are disjointed prior guidance, which has created a kaleidoscope of
function properly? Circuit positions, except to clarify that RICO may in
addition be violated when there is a "threat of
That "pattern" is an amorphous concept even in U.S. continuity." It seems to me this increases rather than
jurisprudence where the term is reasonably defined is removes the vagueness. There is no reason to believe
precisely the point of the incisive concurring opinion of that the Court of Appeals will be any more unified in
Justice Antonin Scalia in Northwestern where he the future, than they have in the past, regarding the
invited a constitutional challenge to the RICO law on content of this law.
"void-for-vagueness" ground. 98 The RICO law is a
federal statute in the United States that provides for That situation is bad enough with respect to any
both civil and criminal penalties for violation therefor. statute, but it is intolerable with respect to RICO. For it
It incorporates by reference twenty-four separate is not only true, as Justice Marshall commented in
federal crimes and eight types of state felonies. 99 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 . . ., that
One of the key elements of a RICO violation is that the our interpretation of RICO has "quite simply
offender is engaged in a "pattern of racketeering revolutionize[d] private litigation" and "validate[d] the
activity." 100 The RICO law defines the phrase federalization of broad areas of state common law of
"pattern of racketeering activity" as requiring "at least frauds,." . . so that clarity and predictability in RICOs
two acts of racketeering activity, one of which occurred civil applications are particularly important; but it is
after the effective date of 18 USCS 1961, and within also true that RICO, since it has criminal applications
ten years (excluding any period of imprisonment) after as well, must, even in its civil applications, possess the
the commission of a prior act of racketeering activity." degree of certainty required for criminal laws . . . No
101 Incidentally, the Solicitor General claims that R.A. constitutional challenge to this law has been raised in
No. 7080 is an entirely different law from the RICO the present case, and so that issue is not before us.
law. The deliberations in Congress reveal otherwise. As That the highest court in the land has been unable to
observed by Rep. Pablo Garcia, Chairman of the House derive from this statute anything more than todays
of Representatives Committee on Justice, R.A. No. meager guidance bodes ill for the day when that
7080 was patterned after the RICO law. 102 challenge is presented. 107

In Northwestern, conceding that" [the U.S. Congress] It bears noting that in Northwestern the
has done nothing . . . further to illuminate RICOs key constitutionality of the RICO law was not challenged.
requirement of a pattern of racketeering," the U.S. 108 After Northwestern, the U.S. Supreme Court has
so far declined the opportunity to hear cases in which
the void-for-vagueness challenge to the pattern Where a public official, by himself or in conspiracy with
requirement was raised. 109 others, amasses or acquires money or property by
committing two or more acts in violation of Section 3
Admittedly, at the district courts level, the state of the Anti-Graft and Corrupt Practices Act (R.A.
statutes (referred to as Little RICOS) 110 have so far 3019), or Articles 210, 211, 212, 213, 214, 215, 216
successfully survived constitutional challenge on void- and 217 of the Revised Penal Code, he shall be guilty
for-vagueness ground. However, it must be of the crime of plunder and shall be punished by
underscored that, unlike R.A. No. 7080, these state reclusion perpetua to death.
anti-racketeering laws have invariably provided for a
reasonably clear, comprehensive and understandable The above would be a straightforward and objective
definition of "pattern." 111 For instance, in one State, definition of the crime of plunder. However, this would
the pattern requirement specifies that the related render meaningless the core phrases "a combination or
predicate acts must have, among others, the same or series of" "overt or criminal acts indicative of the
similar purpose, result, principal, victims or methods of overall unlawful scheme or conspiracy," or the phrase
commission and must be connected with "organized "any combination or series of the following means or
crime. 112 In four others, their pattern requirement similar schemes" or "a pattern of overt or criminal acts
provides that two or more predicate acts should be indicative of the overall unlawful scheme or
related to the affairs of the enterprise, are not isolated, conspiracy."cralaw virtua1aw library
are not closely related to each other and connected in
point of time and place, and if they are too closely But that obviously is not the definition of the crime of
related, they will be treated as a single act. 113 In two plunder under R.A. 7080. There is something more. A
other states, pattern requirements provide that if the careful reading of the law would unavoidably compel a
acts are not related to a common scheme, plan or conclusion that there should be a connecting link
purpose, a pattern may still exist if the participants among the "means or schemes" comprising a "series
have the mental capacity required for the predicate or combination" for the purpose of acquiring or
acts and are associated with the criminal enterprise. amassing "ill-gotten wealth." The bond or link is an
114 "overall unlawful scheme or conspiracy mentioned in
Section 4. The law contemplates a combination or
All the foregoing state statutes require that the series of criminal acts in plunder done by the accused
predicate acts be related and that the acts occur within "in furtherance of the scheme or conspiracy to amass,
a specified time frame. accumulate or acquire ill-gotten wealth." It does not
postulate acts committed randomly, separately or
Clearly, "pattern" has been statutorily defined and independently or sporadically. Otherwise stated, if the
interpreted in countless ways by circuit courts in the legislature intended to define plunder as the
United States. Their divergent conclusions have acquisition of ill-gotten wealth in the manner espoused
functioned effectively to create variant criminal by the majority, the use in R.A. 7080 of such words
offenses. 115 This confusion has come about and phrases as "combination" and "series of overt or
notwithstanding that almost all these state laws have criminal acts." . . "in furtherance of the scheme or
respectively statutorily defined "pattern." In sharp conspiracy" is absolutely pointless and meaningless.
contrast, RA. No. 7080, as earlier pointed out, lacks
such crucial definition. As to what constitutes pattern R.A. No. 7080 makes it possible for a person
within the meaning of R.A. No. 7080 is left to the ad
hoc interpretation of prosecutors and judges. Neither conspiring with the accused in committing
the text of R.A. No. 7080 nor legislative history afford
any guidance as to what factors may be considered in one of the acts constituting the charge
order to prove beyond reasonable doubt "pattern of
overt or criminal acts indicative of the overall unlawful of plunder to be convicted for the same crime.
scheme or conspiracy."cralaw virtua1aw library
Section 2 of R.A. No. 7080 states that" [a]ny person
Be that as it may, it is glaringly fallacious to argue that who participated with the said public officer in the
"series" simply means a "repetition" or "pertaining to commission of an offense contributing to the crime of
two or more" and "combination" is the "result or plunder shall likewise be punished for such offense. In
product or product of combining." Whether two or the imposition of penalties, the degree of participation
more or at least three acts are involved, the majority and the attendance of mitigating and extenuating
would interpret the phrase "combinations or "series" circumstances, as provided by the Revised Penal Code,
only in terms of number of acts committed. They shall be considered by the court." Both parties share
entirely overlook or ignore Section 4 which requires "a the view that the law as it is worded makes it possible
pattern of overt of criminal acts indicative of the for a person who participates in the commission of only
overall unlawful scheme or conspiracy" to convict. one of the component crimes constituting plunder to
be liable as co-conspirator for plunder, not merely the
If the elements of the offense are as what the majority component crime in which he participated. 116 While
has suggested, the crime of plunder could have been petitioner concedes that it is easy to ascertain the
defined in the following manner:chanrob1es virtual penalty for an accomplice or accessory under R.A. No.
1aw library 7080, such is not the case with respect to a co-
principal of the accused. 117 In other words, a person in furtherance of the scheme or conspiracy to amass,
who conspires with the accused in the commission of accumulate or acquire ill-gotten wealth, it being
only one of the component crimes may be prosecuted sufficient to establish beyond reasonable a pattern of
as co-principal for the component crime, or as co- overt or criminal acts indicative of the overall unlawful
principal for the crime of plunder, depending on the scheme or conspiracy."cralaw virtua1aw library
interpretation of the prosecutor. The unfettered
discretion effectively bestowed on law enforcers by the The majority would interpret this section to mean that
aforequoted clause in determining the liability of the the prosecution has the burden of "showing a
participants in the commission of one or more of the combination or series resulting in the crime of
component crimes of a charge for plunder undeniably plunder." And, once the minimum requirements for a
poses the danger of arbitrary enforcement of the law. combination or a series of acts are met, there is no
118 necessity for the prosecution to prove each and every
other act done by the accused in furtherance of the
R.A. No. 7080 does not clearly state scheme or conspiracy to amass, accumulate, or
acquire ill-gotten wealth. 123
the prescriptive period of the crime of plunder.
By its language, Section 4 eliminates proof of each and
Section 6 of R.A. No. 7080 provides that the crime every component criminal act of plunder by the
punishable under said Act shall prescribe in twenty accused and limits itself to establishing just the pattern
(20) years. Considering that the law was designed to of overt or criminal acts indicative of unlawful scheme
cover a "combination or series of overt or criminal or conspiracy. The law, in effect, penalizes the accused
acts," or "a pattern of overt or criminal acts," from on the basis of a proven scheme or conspiracy to
what time shall the period of prescription be reckoned? commit plunder without the necessity of establishing
From the first, second, third or last act of the series or beyond reasonable doubt each and every criminal act
pattern? What shall be the time gap between two done by the accused in the crime of plunder. To quote
succeeding acts? If the last act of a series or Fr. Bernas again: "How can you have a series of
combination was committed twenty or more years criminal acts if the elements that are supposed to
after the next preceding one, would not the crime have constitute the series are not proved to be criminal?"
prescribed, thereby resulting in the total extinction of 124
criminal liability under Article 89(b) of the Revised
Penal Code? In antithesis, the RICO law affords more Moreover, by doing away with proof beyond reasonable
clarity and definiteness in describing "pattern of doubt of each and every criminal act done by the
racketeering activity" as "at least two acts of accused in the furtherance of the scheme or conspiracy
racketeering activity, one of which occurred within ten to acquire ill-gotten wealth, it being sufficient just to
years (excluding any period of imprisonment) after the prove a pattern of overt or criminal acts indicative of
commission of a prior act of racketeering activity." 119 the overall unlawful scheme or conspiracy, the Plunder
The U.S. state statutes similarly provide specific time Law effectively eliminated the mens rea or criminal
frames within which racketeering acts are committed. intent as an element of the crime. Because of this, it is
easier to convict for plunder and sentence the accused
The Solicitor General enjoins the Court to rectify the to death than to convict him for each of the component
deficiencies in the law by judicial construction. crimes otherwise punishable under the Revised Penal
However, it certainly would not be feasible for the Code and other laws which are bailable offenses. The
Court to interpret each and every ambiguous provision resultant absurdity strikes at the very heart if the
without falling into the trap of judicial legislation. A constitutional guarantees of due process and equal
statute should be construed to avoid constitutional protection.
question only when an alternative interpretation is
possible from its language. 120 Borrowing from the Plunder is a malum in se.
opinion of the court 121 in Northwestern, 122 the law
"may be a poorly drafted statute; but rewriting it is a The acts enumerated in Section 1(d) are mostly
job for Congress, if it so inclined, and not for this defined and penalized by the Revised Penal Code, e.g.
Court" But where the law as the one in question is void malversation, estafa, bribery and other crimes
on its face for its patent ambiguity in that it lacks committed by public officers. As such, they are by
comprehensible standards that men of common nature mala in se crimes. Since intent is an essential
intelligence must necessarily guess at its meaning and element of these crimes, then with more reason that
differ as to its application, the Court cannot breathe criminal intent be established in plunder which, under
life to it through the guise of construction. R.A. No. 7659, is one of the heinous crimes 125 as
pronounced in one of its whereas clauses. 126
RA. No. 7080 effectively eliminates mens rea
The fact that the acts enumerated in Section 1(d) of
or criminal intent as an element of the crime of R.A. 7080 were made criminal by special law does not
plunder. necessarily make the same mala prohibita where
criminal intent is not essential, although the term
Section 4 provides that for the purpose of establishing refers generally to acts made criminal by special laws.
the crime of plunder, "it shall not be necessary to For there is a marked difference between the two.
prove each and every criminal act done by the accused According to a well-known author on criminal
law:chanrob1es virtual 1aw library Mens rea is a substantive due process requirement
under the Constitution, and this is a limitation on
There is a distinction between crimes which are mala police power. Additionally, lack of mens rea or a
in se, or wrongful from their nature, such as theft, clarifying scienter requirement aggravates the
rape, homicide, etc., and those that are mala vagueness of a statute.
prohibita, or wrong merely because prohibited by
statute, such as illegal possession of firearms. In Morisette v. U.S. 132 the U.S. Supreme Court
underscored the stultifying effect of eliminating mens
Crimes mala in se are those so serious in their effects rea, thus:chanrob1es virtual 1aw library
on society as to call for almost unanimous
condemnation of its members; while crimes mala The Government asks us by a feat of construction
prohibita are violations of mere rules of convenience radically to change the weights and balances in the
designed to secure a more orderly regulation of the scales of justice. The purpose and obvious effect of
affairs of society. (Bouviers Law Dictionary, Rawles doing away with the requirement of a guilty intent is to
3rd Revision) ease the prosecutions party to conviction, to strip the
defendant of such benefit as he derived at common
(1) In acts mala in se, the intent governs; but in those law from innocence of evil purpose, and to
mala prohibita the only inquiry is, has the law been circumscribe the freedom heretofore allowed juries.
violated? (People v. Kibler, 106 N.Y., 321, cited in the Such a manifest impairment of the immunities of the
case of U.S. v. Go Chico, 14 Phil. 132) individual should not be extended to common law
crimes on judicial initiative.
Criminal intent is not necessary where the acts are
prohibited for reasons of public policy, as in illegal In the same breath, Justice Florenz Regalado
possession of firearms. (People v. Conosa, C.A., 45 expresses serious doubts as to the authority of the
O.G. 3953) legislature to complex mala in se crimes with mala
prohibita, saying:chanrob1es virtual 1aw library
(2) The term mala in se refers generally to felonies
defined and penalized by the Revised Penal Code. . . . although there has been a tendency to penalize
When the acts are inherently immoral, they are mala crimes under special laws with penalties "borrowed"
in se, even if punished by special laws. On the other from the Code, there is still the question of legislative
hand, there are crimes in the Revised Penal Code authority to consolidate crimes punished under
which were originally defined and penalized by special different statutes. Worse, where one is punished under
laws. Among them are possession and use of opium, the Code and the other by the special law, both of
malversation, brigandage, and libel. 127 these contingencies had not been contemplated when
the concept of a delito complejo was engrafted into the
The component acts constituting plunder, a heinous Code. 133
crime, being inherently wrongful and immoral, are
patently mala in se, even if punished by a special law Petitioner is not estopped from questioning
and accordingly, criminal intent must clearly be
established together with the other elements of the the constitutionality of R.A. No. 7080.
crime; otherwise, no crime is committed. By
eliminating mens rea, R.A. 7080 does not require the The case at bar has been subject to controversy
prosecution to prove beyond reasonable doubt the principally due to the personalities involved herein. The
component acts constituting plunder and imposes a fact that one of petitioners counsels 134 was a co-
lesser burden of proof on the prosecution, thus paying sponsor of the Plunder Law 135 and petitioner himself
the way for the imposition of the penalty of reclusion voted for its passage when he was still a Senator
perpetua to death on the accused, in plain violation of would not in any put him in estoppel to question its
the due process and equal protection clauses of the constitutionality. The rule on estoppel applies to
Constitution. Evidently, the authority of the legislature questions of fact, not of law. 136 Moreover, estoppel
to omit the element of scienter in the proof of a crime should be resorted to only as a means of preventing
refers to regulatory measures in the exercise of police injustice. 137 To hold that petitioner is estopped from
power, where the emphasis of the law is to secure a questioning the validity of R.A. No. 7080 because he
more orderly regulations of the offense of society, had earlier voted for its passage would result in
rather than the punishment of the crimes. So that in injustice not only to him, but to all others who may be
mala prohibita prosecutions, the element of criminal held liable under this statute. In People v. Vera 138
intent is a requirement for conviction and must be citing the U.S. case of Attorney General v. Perkins, the
provided in the special law penalizing what are Court held:chanrob1es virtual 1aw library
traditionally mala in se crimes. As correctly pointed out
by petitioner, 128 citing U.S. Supreme Court decisions, . . . The idea seems to be that the people are estopped
the Smith Act was ruled to require "intent" to advocate from questioning the validity of a law enacted by their
129 and held to require knowledge of illegal advocacy. representatives; that to an accusation by the people of
130 And in another case, 131 and ordinance making Michigan of usurpation upon their government, a
illegal the possession of obscene books was declared statute enacted by the people of Michigan is an
unconstitutional for lack of scienter requirement. adequate statute relied on in justification is
unconstitutional, it is a statute only in form, and lacks
the force of law, and is of no more saving effect to 7080, otherwise called the Anti-Plunder Law, is
justify action under it, it had never been enacted. The unconstitutional and that the information charges more
constitution is the supreme law, and to its behests the than one offense.
courts, the legislature, and the people must bow. . . .
139 In its resolution dated July 9, 2001, the
Sandiganbayan denied petitioners motion, along with
The Court should not sanction the use of an equitable those filed by his co-accused, Edward Serapio, and his
remedy to defeat the ends of justice by permitting a son, Jose Jinggoy" Estrada. Petitioner brought this
person to be deprived of his life and liberty under an petition for certiorari and prohibition under Rule 65 to
invalid law. set aside the Sandiganbayans resolution principally on
the ground that the Anti-Plunder Law is void for being
Undoubtedly, the reason behind the enactment of R.A. vague and overbroad. We gave due course to the
7080 is commendable. It was a response to the felt petition and required respondents to file comments
need at the time that existing laws were inadequate to and later heard the parties in oral arguments on
penalize the nature and magnitude of corruption that September 18, 2001 and on their memoranda filed On
characterized a "previous regime." 140 However, September 28, 2001 to consider the constitutional
where the law, such as R.A. 7080, is so indefinite that claims of petitioner.
the line between innocent and condemned conduct
becomes a matter of guesswork, the indefiniteness I. THE ANTI-PLUNDER LAW
runs afoul of due process concepts which require that
persons be given full notice of what to avoid, and that The Anti-Plunder Law (R.A. No. 7080) was enacted by
the discretion of law enforcement officials, with the Congress on July 12, 1991 pursuant to the
attendant dangers of arbitrary and discriminatory constitutional mandate that "the State shall maintain
enforcement, be limited by explicit legislative honesty and integrity in the public service and take
standards. 141 It obfuscates the mind to ponder that positive and effective measures against graft and
such an ambiguous law as R.A. No. 7080 would put on corruption." 2 .Section 2 of the statute
the balance the life and liberty of the accused against provides:chanrob1es virtual 1aw library
whom all the resources of the State are arrayed. It
could be used as a tool against political enemies and a Definition of the Crime of Plunder; Penalties. Any
weapon of hate and revenge by whoever wields the public officer who, by himself or in connivance with
levers of power. members of his family, relatives by affinity or
consanguinity, business associates, subordinates or
I submit that the charge against petitioner in the other persons, amasses, accumulates or acquires ill-
Amended Information in Criminal Case No. 26558 does gotten wealth through a combination or series of overt
not constitute "plunder" under R.A. No. 7080, as or criminal acts as described in Section 1(d) hereof in
amended by R.A. No. 7659. If at all, the acts charged the aggregate amount or total value of at least Fifty
may constitute offenses punishable under the Anti- million pesos (P50,000,000.00) shall be guilty of the
Graft and Corrupt Practices Act (R.A. No. 3019) or the crime of plunder and shall be punished by reclusion
Revised Penal Code. Hence, the information charging perpetua to death. Any person who participated with
petitioner with plunder must be quashed. Such the said public officer in the commission of an offense
quashal, however, should be without prejudice to the contributing to the crime of plunder shall likewise be
filing of new information for acts under R.A. No. 3019, punished for such offense. In the imposition of
of the Revised Penal Code and other laws. Double penalties, the degree of participation and the
jeopardy would not bar the filing of the same because attendance of mitigating and extenuating
the dismissal of the case is made with the express circumstances, as provided by the Revised Penal Code,
consent of the petitioner-accused. 142 shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests
In view of the foregoing, I vote to GRANT the petition. and other incomes and assets including the properties
and shares of stocks derived from the deposit or
MENDOZA, J. concurring:chanrob1es virtual 1aw investment thereof forfeited in favor of the State. (As
library amended by Sec. 12, RA. No. 7659).

Before I explain my vote, I think it is necessary to The term "ill-gotten wealth" is defined in 1(d) as
restate the basic facts. follows:jgc:chanrobles.com.ph

Petitioner Joseph Ejercito Estrada was President of the "Ill-gotten wealth," means any asset, property,
Philippines until January 20, 2001 when he was forced business enterprise or material possession of any
to vacate the presidency by people power and then person within the purview of Section Two (2) hereof,
Vice President Gloria Macapagal-Arroyo succeeded him acquired by him directly or indirectly through
in office. 1 He was charged, in eight cases filed with dummies, nominees, agents, subordinates and/or
the Sandiganbayan, with various offenses committed business associates by any combination or series of
while in office, among them plunder, for allegedly the following means or similar schemes:chanrob1es
having amassed ill-gotten wealth in the amount of P virtual 1aw library
4.1 billion, more or less. He moved to quash the
information for plunder on the ground that R.A. No. 1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public No. 7659, committed as follows:chanrob1es virtual
treasury. 1aw library

2) By receiving, directly or indirectly, any commission, That during the period from June, 1998 to January,
gift, share, percentage, kickbacks or any other form of 2001, in the Philippines, and within the jurisdiction of
pecuniary benefit from at person and/or entity in this Honorable Court, Accused Joseph Ejercito Estrada,
connection with any government contract or project or then a public officer, being then the President of the
by reason of the office or position of the public officer Republic of the Philippines, by himself and/or in
concerned; connivance/conspiracy with his co-accused, who are
members of his family, relatives by affinity or
3) By the illegal or fraudulent conveyance or consanguinity, business associates, subordinates
disposition of assets belonging to the National and/or other persons, by taking undue advantage of
Government or any of its subdivisions, agencies or his official, position authority, relationship, connection,
instrumentalities or government-owned or controlled or influence, did then and there willfully, unlawfully
corporations and their subsidiaries. and criminally amass, accumulate and acquire by
himself, directly or indirectly, ill-gotten wealth in the
4) By obtaining, receiving or accepting directly or aggregate amount or total value of four billion ninety
indirectly any shares of stock, equity or any other form seven million eight hundred four thousand one
of interest or participation including the promise of hundred seventy three pesos and seventeen centavos
future employment in any business enterprise or [P4,097,804,173.17], more or less, thereby unjustly
undertaking; enriching himself or themselves at the expense and to
damage of the Filipino people and the Republic of the
5). By establishing agricultural, industrial or Philippines, through any or a combination or a series,
commercial monopolies or other combinations and/or of overt or criminal acts, or similar schemes or means,
implementation of decrees and orders intended to described as follows:chanrob1es virtual 1aw library
benefit particular persons or special interests; or
(a) by receiving or collecting, directly or indirectly, on
6) By taking undue advantage of official position, several instances, money in the aggregate amount of
authority, relationship, connection or influence to five hundred forty-five million pesos
unjustly enrich himself or themselves at the expense (P545,000,000,00), more or less, from illegal gambling
and to the damage and prejudice of the Filipino people in the form of gift, share, percentage, kickback or any
and the Republic of the Philippines. form of pecuniary benefit, by himself and/or in
connivance with co-accused Charlie "Atong" Ang, Jose
Section 4 of the said law states:chanrob1es virtual 1aw "Jinggoy" Estrada, Yolanda Ricaforte, Edward Serapio,
library and John Does and Jane Does, in consideration of
toleration or protection of illegal gambling;
Rule of Evidence For purposes of establishing the
crime of plunder, it shall not be necessary to prove (b) by diverting, receiving, misappropriating,
each and every criminal act done by the accused in converting or misusing directly or indirectly, for his or
furtherance of the scheme or conspiracy to amass, their personal gain and benefit, public funds in the
accumulate or acquire ill-gotten wealth, it being amount of ONE HUNDRED THIRTY MILLION PESOS
sufficient to establish beyond reasonable doubt a [P130,000,000.00], more or less, representing a
pattern of overt or criminal acts indicative of the portion of the two hundred million pesos
overall unlawful scheme or conspiracy. [P200,000,000.00] tobacco excise tax share allocated
for the Province of Ilocos Sur under R.A. No. 7171, by
II. ANTI-PLUNDER LAW NOT TO BE JUDGED ON ITS himself and/or in connivance with co-accused Charlie
FACE "Atong" Ang, Alma Alfaro, John Doe a.k.a. Eleuterio
Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe
The amended information against petitioner charges a.k.a. Delia Rajas, and other John Does and Jane
violations of 2, in relation to 1(d)(1)(2), of the Does;
statute. It reads:chanrob1es virtual 1aw library
(c) by directing, ordering and compelling, for his
AMENDED INFORMATION personal gain and benefit, the Government Service
Insurance System (GSIS) to purchase 351,878,000
The undersigned Ombudsman Prosecutor and OIC- shares of stocks, more or less, and the Social Security
Director, EPIB, Office of the Ombudsman, hereby System (SSS), 329,855,000 shares of stocks, more or
accuses former President of the Republic of the less, of the Belle Corporation in the amount of more or
Philippines, Joseph Ejercito Estrada a.k.a "Asiong less one billion one hundred two million nine hundred
Salonga" and a.k.a "Jose Velarde," together With Jose sixty five thousand six hundred seven pesos and fifty
"Jinggoy" Estrada, Charlie "Atong" Ang, Edward centavos [P1,102,965,607.50] and more or less seven
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe hundred forty four million six hundred twelve thousand
a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and four hundred fifty pesos [744,612,450.00],
Jane Doe a.k.a. Delia Rajas, and John Does & Jane respectively, or a total of more or less one billion eight
Does, of the crime of plunder, defined and penalized hundred forty seven million five hundred seventy eight
under R.A. No. 7080, as amended by Sec. 12 of R.A. thousand fifty seven pesos and fifty centavos
[P1,847,578,057.50]; and by collecting or receiving, provisions are void for being vague and overbroad, the
directly or indirectly, by himself and/or in connivance entire statute, including the part under which
with John does and Jane does, commissions or petitioner is being prosecuted, is also void. And if the
percentages by reason of said purchases of shares of entire statute is void, there is no law under which he
stock in the amount of one hundred eighty nine million can be prosecuted for plunder. Nullum crimen sine
seven hundred thousand pesos [P189,700,000.00], lege, nullum poena sine lege.
more or less, from, from the Belle corporations which
became part of the deposit in the Equitable-PCI Bank Two justifications are advanced for this facial challenge
under the account name "Jose Velarde" ; to the validity of the entire statute. The first is that the
statute comes within the specific prohibitions of the
(d) by unjustly enriching himself from commissions, Constitution and, for this reason, it must be given
gifts, shares, percentages, kickbacks, or any form of strict scrutiny and the normal presumption of
pecuniary benefits, in connivance with John Does and constitutionality should not be applied to it nor the
Jane Does, in the amount of more or less three billion usual judicial deference given to the judgment of
two hundred thirty three million one hundred four Congress. 4 The second justification given for the facial
thousand one hundred seventy three pesos and attack on the Anti- Plunder Law is that it is vague and
seventeen centavos [P3,233,104,173.17] and overbroad. 5
depositing the same under his account name "Jose
Velarde" at the Equitable Bank. We find no basis for such claims either in the rulings of
this Court or of those of the U.S. Supreme Court, from
CONTRARY TO LAW. which petitioners counsel purports to draw for his
conclusions. We consider first the claim that the
Manila for Quezon City, Philippines, 18 April 2001 statute must be subjected to strict scrutiny.

But, although this is a prosecution under 2, in relation A. Test of Strict Scrutiny Not Applicable to Penal
to 1(d)(1)(2), what we are seeing here is a wholesale Statutes
attack on the validity of the entire statute. Petitioner
makes little effort to show the alleged invalidity of the Petitioner cites the dictum in Ople v. Torres 6 that
statute as applied to him. His focus is instead on the "when the integrity of a fundamental right is at stake,
statute as a whole as he attacks "on their face" not this Court will give the challenged law administrative
only 1(d)(1)(2) of the statute but also its other order, rule or regulation stricter scrutiny" and that "It
provisions which deal with plunder committed by illegal will not do for authorities to invoke the presumption of
or fraudulent disposition of government assets (1 regularity in the performance of official duties." As will
(d)(3)), acquisition of interest in business and presently be shown, "strict scrutiny," as used in that
establishment of monopolies and combinations or decision, is not the same thing as the "strict scrutiny"
implementation of decrees intended to benefit urged by petitioner. Much less did this Court rule that
particular persons or special interests (1(d)(5)). because of the need to give "stricter scrutiny" to laws
abridging fundamental freedoms, it will not give such
These other provisions of the statute are irrelevant to laws the presumption of validity.
this case. What relevance do questions regarding the
establishment of monopolies and combinations, or the Petitioner likewise cites "the most celebrated footnote
ownership of stocks in a business enterprise, or the in [American] constitutional law," i.e., footnote 4 of the
illegal or fraudulent dispositions of government opinion in United States v. Carolene Products Co., 7 in
property have to the criminal prosecution of petitioner which it was stated:chanrob1es virtual 1aw library
when they are not even mentioned in the amended
information filed against him? Why should it be There may be narrower scope for operation of the
important to inquire whether the phrase "overt act" in presumption of constitutionality when legislation
1(d) and 2 means the thing as the phrase "criminal appears on its face to be within a specific prohibition of
act" as used in the same provisions when the acts the Constitution, such as those of the first ten
imputed to petitioner in the amended information are amendments, which are deemed equally specific when
criminal acts? Had the provisions of the Revised Penal held to be embraced within the Fourteenth.
Code been subjected to this kind of line-by-line
scrutiny whenever a portion thereof was involved in a It is unnecessary to consider now whether legislation
case, it is doubtful if we would have the jurisprudence which restricts those political processes which can
on penal law that we have today. The prosecution of ordinarily be expected to bring about repeal of
crimes would certainly have been hampered, if not undesirable legislation, is to be subjected to more
stultified. We should not even attempt to assume the exacting judicial scrutiny under the general
power we are asked to exercise. "The delicate power of prohibitions of the Fourteenth Amendment than are
pronouncing an Act of Congress unconstitutional is not most other types of legislation.
to be exercised with reference to hypothetical cases . .
. In determining the sufficiency of the notice a statute Nor need we inquire whether similar considerations
must of necessity be examined in the light of the enter into the review of statutes directed at particular
conduct with which a defendant is charged." 3 religious, or national, or racial minorities whether
prejudice against discrete and insular minorities may
Nonetheless, it is contended that because these be a special condition, which tends seriously to curtail
the operation of those political processes ordinarily to governmental interest and on the absence of less
be relied upon to protect minorities, and which may restrictive means for achieving that interest. 10
call for a correspondingly more searching judicial
inquiry. Considering these degrees of strictness in the review of
statutes, how many criminal laws can survive the test
Again, it should be noted that what the U.S. Supreme of strict scrutiny to which petitioner proposes to
Court said is that "there may be narrower scope for subject them? How many can pass muster if, as
the operation of the presumption of constitutionality" petitioner would have it, such statutes are not to be
for legislation which comes within the first ten presumed constitutional? Above all, what will happen
amendments to the American Federal Constitution to the States ability to deal with the problem of
compared to legislation covered by the Fourteenth crimes, and, in particular, with the problem of graft
Amendment Due Process Clause. The American Court and corruption in government, if criminal laws are to
did not say that such legislation is not to be presumed be upheld only if it is shown that there is a compelling
constitutional, much less that it is presumptively governmental interest for making certain conduct
invalid, but only that a "narrower scope will be given criminal and if there is no other means less restrictive
for the presumption of constitutionality in respect of than that contained in the law for achieving such
such statutes. There is, therefore, no warrant for governmental interest?
petitioners contention that the "presumption of
constitutionality of a legislative act is applicable only B. Vagueness and Overbreadth Doctrines, as Grounds
where the Supreme Court deals with facts regarding for Facial Challenge, Not Applicable to Penal Laws
ordinary economic affairs, not where the interpretation
of the text of the Constitution is involved." 8 Nor do allegations that the Anti-Plunder Law is vague
and overbroad justify a facial review of its validity The
What footnote 4 of the Carolene Products case posits is void-for-vagueness doctrine states that "a statute
a double standard of judicial review: strict scrutiny for which either forbids or requires the doing of an act in
laws dealing with freedom of the mind or restricting terms so vague that men of common intelligence must
the political process, and deferential or rational basis necessarily guess at its meaning and differ as to its
standard of review for economic legislation. As Justice application, violates the first essential of due process
(later Chief Justice) Fernando explained in Malate Hotel of law" 11 The overbreadth doctrine, on the other
and Motel Operators Assn v. The City Mayor, 9 this hand, decrees that "a governmental purpose may not
simply means that "if the liberty involved were be achieved by means which sweep unnecessarily
freedom of the mind or the person, the standard for broadly and thereby invade the area of protected
the validity of government acts is much more rigorous freedoms." 12
and exacting, but where the liberty curtailed affects
what are at the most rights of property, the A facial challenge is allowed to be made to a vague
permissible scope of regulatory measures is statute and to one which is overbroad because of
wider."cralaw virtua1aw library possible "chilling effect" upon protected speech. The
theory is that" [w]hen statutes regulate or prescribe
Hence, strict scrutiny is used today to test the validity speech and no readily apparent construction suggests
of laws dealing with the regulation of speech, gender, itself as a vehicle for rehabilitating the statutes in a
or race and facial challenges are allowed for this single prosecution, the transcendent value to all
purpose. But criminal statutes, like the Anti-Plunder society of constitutionally protected expression is
Law, while subject to strict construction, are not deemed to justify allowing attacks on overly broad
subject to strict scrutiny. The two (i.e., strict statutes with no requirement that the person making
construction and strict scrutiny) are not the same. The the attack demonstrate that his own conduct could not
rule of strict construction is a rule of legal be regulated by a stature drawn with narrow
hermeneutics which deals with the parsing of statutes specificity" 13 The possible harm to society in
to determine the intent of the legislature. On the other permitting some unprotected speech to go unpunished
hand, strict scrutiny is a standard of judicial review for is outweighed by the possibility that the protected
determining the quality and the amount of speech of others may be deterred and perceived
governmental interest brought to justify the regulation grievances left to fester because of possible inhibitory
of fundamental freedoms. It is set opposite such terms effects of overly broad statutes.
as "deferential review" and "intermediate
review."cralaw virtua1aw library This rationale does not apply to penal statutes.
Criminal statutes have general in terrorem effect
Thus, under deferential review, laws are upheld if they resulting from their very existence, and, if facial
rationally further a legitimate governmental interest, challenge is allowed for this reason alone, the State
without courts seriously inquiring into the may well be prevented from enacting laws against
substantiality of such interest and examining the socially harmful conduct. In the area of criminal law,
alternative means by which the objectives could be the law cannot take chances as in the area of free
achieved. Under intermediate review, the substantiality speech.
of the governmental interest is seriously looked into
and the availability of less restrictive alternatives are The overbreadth and vagueness doctrines then have
considered. Under strict scrutiny, the focus is on the special application only to free speech cases. They are
presence of compelling, rather than substantial, inapt for testing the validity of penal statutes. As the
U.S. Supreme Court put it, in an opinion by Chief constitutional questions, whichever way they might be
Justice Rehnquist, "we have not recognized an decided.
overbreadth doctrine outside the limited context of
the First Amendment." 14 In Broadrick v. Oklahama 15 This is the reason "on its face" invalidation of statutes
the Court ruled that "claims of facial overbreadth have has been described as "manifestly strong medicine," to
been entertained in cases involving statutes which, by be employed "sparingly and only as a last resort," 23
their terms, seeks to regulate only spoken words" and, and is generally disfavored. 24 In determining the
again, that "overbreadth claims, if entertained at all constitutionality of statute, therefore, its provisions
have been curtailed when invoked against ordinary which are alleged to have been violated in a case must
criminal laws that are sought to be applied to be examined in the light of the conduct with which the
protected conduct." For this reason, it has been held defendant is charged.25cralaw:red
that "a facial challenge to a legislative Act is . . . the
most difficult challenge to mount successfully, since This brings me to the question whether, as applied, 2,
the challenger must establish that no set of in relation to 1(d)(1)(2), of the Anti-Plunder Law is
circumstances exists under which the Act would be void on the ground of vagueness and overbreadth.
valid." 16 As for the vagueness doctrine, it is said that
a litigant may challenge a statute on its face only if it III. ANTI-PLUNDER LAW NEITHER VAGUE NOR
is vague in all its possible applications. "A plaintiff who OVERBROAD
engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied As earlier noted, the case against petitioner Joseph
to the conduct of others. 17 Ejercito Estrada in the Sandiganbayan is for violation
of 2, in relation to 1(d)(1)(2), of the Anti-Plunder
In sum, the doctrines of strict scrutiny, overbreadth, Law, which, so far as pertinent, provide:chanrob1es
and vagueness are analytical tools developed for virtual 1aw library
testing "on their faces" statutes in free speech cases
or, as they are called in American law, First SEC. 2. Definition of the Crime of Plunder; Penalties.
Amendment cases. They cannot be made to do service Any public officer who, by himself or in connivance
when what is involved is a criminal statute. With with members of his family, relatives by affinity or
respect to such statute, the establish rule is that "one consanguinity, business associates, subordinates or
to whom application of a statute is constitutional will other persons, amasses, accumulates or acquires ill-
not be heard to attack the statute on the ground that gotten wealth through a combination or series of overt
impliedly it might also be taken as applying to other or criminal acts describe in Section 1(d) hereof in the
persons or other situations in which its application aggregate amount or total value of at least Fifty million
might be unconstitutional." 18 As has been pointed pesos (P50,000,000.00) shall be guilty the crime of
out, "vagueness challenges in the First Amendment plunder and shall be punished by reclusion perpetua to
context, like overbreadth challenges typically produce death . . . .
facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] SEC. 1. Definition of Terms. . . .
as applied to a particular defendant." 19
Consequently, there is no basis for petitioners claim (d) "Ill-gotten wealth," means any asset, property,
that this Court review the Anti-Plunder Law on its face business enterprise or material possession of any
and in its entirety. person within the purview of Section Two (2) hereof,
acquired by him directly or indirectly through
C. Anti-Plunder Law Should be Construed "As Applied" dummies, nominees, agents, subordinates and/or
business associates by any combination or series of
Indeed, "on its face" invalidation of statutes results in the following means or similar schemes:chanrob1es
striking them down entirely on the ground that they virtual 1aw library
might be applied to parties not before the Court whose
activities are constitutionally protected. 20 It 1) Through misappropriation, conversion, misuse, or
constitutes a departure from the case and controversy malversation of public funds or raids on the public
requirement of the Constitution and permits decisions treasury.
to be made without concrete factual settings and in
sterile abstract contexts. 21 But, as the U.S. Supreme 2) By receiving, directly or indirectly, any commission,
Court pointed out in Younger v. Harris. 22 gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in
[T]he task of analyzing a proposed statute, pinpointing connection with any government contract or project or
its deficiencies, and requiring correction of these by reason of the office or position of the public officer
deficiencies before the statute is put into effect, is concerned;
rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the The charge is that in violation of these provisions
controversy, the impact on the legislative process of during the period June 1998 to January
the relief sought, and above all the speculative and 2001, Petitioner, then the President of the Philippines
amorphous nature of the required line-by-line analysis willfully, unlawfully, and criminally amassed wealth in
of detailed statutes, . . . ordinarily results in a kind of the total amount of P4,097,804,173.17, more or less,
case that is wholly unsatisfactory for deciding through "a combination or series of overt or criminal
acts," to wit: (1) by receiving or collecting the total raids on the National Treasury or the treasury of
amount of 545,000,000.00, more or less, from illegal province or municipality;
gambling himself and/or in connivance with his co-
accused named therein, in exchange for protection of 7. Whether the receipt or acceptance of a gift,
illegal gambling; (2) by misappropriating, converting, commission, kickback, or pecuniary benefits in
misusing, by himself or in connivance with his co- connection with a government contract or by reason of
accused named therein, public funds amounting to his office, as used in 1(d)(2), is the same as bribery
P130,000,000.00, more or less, representing portion of in the Revised Penal Code or those which are
the share of the Province of Ilocos Sur in the tobacco considered corrupt practices of public officers;
excise tax; (3) by ordering the GSIS and the SSS to
buy shares of stocks of the Belle Corp., worth 8. Whether "illegal or fraudulent conveyance or
P1,102,965,607.50 and P744,612,450.00 respectively, disposition of assets belonging to the National
or the total amount of P1,847,578,057.50, for which Government," as used in 1(d)(3), refers to technical
he received as commission the amount of malversation or illegal use of public funds or property
P189,700,000.00 more or less, from Belle Corp.; (4) in the Revised Penal Code;
by unjustly enriching himself from commissions, gifts,
shares, percentages, and kickbacks in the amount of 9. Whether mere ownership of stocks in a private
P3,233,104,173.17 which he deposited in the corporation, such as a family firm engaged in fishing,
Equitable-PCI Bank under the name of "Jose is prohibited under 1(d)(4);
Velarde."cralaw virtua1aw library
10. Whether the phrase "monopolies or other
Anyone reading the law in relation to this charged combinations in restraint of trade" in 1(d)(5) means
cannot possibly be mistaken as to what petitioner is the same thing as "monopolies and combinations in
accused of in Criminal Case No. 26558 of the restraint of trade" in the Revised Penal Code because
Sandiganbayan. But, repeatedly, petitioner complains the latter contemplates monopolies and combinations
that the law is vague and deprives him of due process. established by any person, not necessarily a public
He invokes the ruling in Connally v. General Constr. officer; and
Co. 26 that "a statute which either forbids or requires
the doing of an act in terms so vague that men of 11. Whether under 1(d)(5) it is the public officer who
common intelligence must necessarily guess at its intends to confer benefit on a particular person by
meaning and differ as to its application, violates the implementing a decree or it is the decree that is
first essential of due process of law." He does this by intended to benefit the particular person and the public
questioning not only 2, in relation to 1(d)(1)(2), as officer simply implements it.
applied to him, but also other provisions of the Anti-
Plunder Law not involved in this case. In 55 out of 84 Many more questions of this tenor are asked in the
pages of discussion in his Memorandum, petitioner memorandum of petitioner 27 as well as in the dissent
tries to show why on their face these provisions are of MR. JUSTICE KAPUNAN. Not only are they irrelevant
vague and overbroad by asking questions regarding to this case, as already pointed out. It is also evident
the meaning of some words and phrases in the statute, from their examination that what they present are
to wit:chanrob1es virtual 1aw library simply questions of statutory construction to be
resolved on a case-to-case basis. Consider, for
1. Whether "series" means two, three or four overt or example, the following words and phrases in 1 (d)
criminal acts listed in 1(d) in view of the alleged and; 2:chanrob1es virtual 1aw library
divergence of interpretation given to this word by the
Ombudsman, the Solicitor General, and the A. "Combination or series of overt or criminal acts"
Sandiganbayan, and whether the acts in a series
should be directly related to each other; Petitioner contends that the phrase combination or
series of overt, or criminal acts" in 1(d) and 2
2. Whether "combination" includes two or more acts or should state how many acts are needed in order to
at least two of the "means or similar schemes" have a "combination" or a "series." It is not really
mentioned in 1(d); required that this be specified. Petitioner, as well as
MR. JUSTICE KAPUNAN cites the following remarks of
3. Whether "pattern" as used in 1(d) must be related Senators Gonzales and Taada during the discussion of
to the word "pattern" in 4 which requires that it be S. No. 733 in the Senate:chanrob1es virtual 1aw
"indicative of an overall unlawful scheme or library
conspiracy" ;
SENATOR GONZALES: To commit the offense of
4. Whether "overt" means the same thing as "criminal" plunder, as defined in this Act while constituting a
; single offense, it must consist of a series of overt or
criminal acts, such as bribery, extortion, malversation
5. Whether "misuse of public funds" is the same as of public funds, swindling, falsification of public
"illegal use of public property or technical documents, coercion, theft, fraud, and illegal exaction,
malversation" ; and graft or corrupt practices act and like offenses.
Now, Mr. President, I think, this provision, by itself,
6. Whether "raids on the public treasury" refers to will be vague. I am afraid that it might be faulted for
being violative of the due process clause and the right more things or events standing or succeeding in order
to be informed of the nature and cause of accusation and having a like relationship to each other," or "a
of an accused. Because, what is meant by "series of spatial or temporal succession of persons or things" or
overt or criminal acts" ? I mean, would 2, 3, 4 or 5 "a group that has or admits an order of arrangement
constitute a series? During the period of amendments exhibiting progression." 30
can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is In the Bicameral Conference Committee on Justice
robbery in band by the number of participants therein. meeting held on May 7, 1991 the same meanings were
given to the words "combination" and "series."
In this particular case, probably, we can statutorily Representative Garcia explained that a combination is
provide for the definition of "series" so that two, for composed of two or more of the overt or criminal acts
example, would that be already a series? Or, three, enumerated in 1(d), while a series is a repetition of
what would be the basis for such a determination? any of the same overt or criminal acts.
Thus:chanrob1es virtual 1aw library
SENATOR TAADA. I think Mr. President, that would
be called for, this being a penal legislation, we should REP. ISIDRO: I am just intrigued again by our
be very clear as to what it encompasses; otherwise, definition of plunder. We say, THROUGH A
we may contravene the constitutional provision on the COMBINATION OR SERIES OF OVERT OR CRIMINAL
right of the accused to due process. 28 ACTS AS MENTIONED IN SECTION ONE HEREOF. Now
when we say combination, we actually mean to say, if
But, as the later discussion in the Senate shows, the there are two or more means, we mean to say that
senators in the end reached a consensus as to the number one and two or number one and something
meaning of the phrase so that an enumeration of the else are included, how about a series of the same act?
number of acts needed was no longer proposed. Thus, For example, through misappropriation, conversion,
the record shows:chanrob1es virtual 1aw library misuse, will these be included also? . . .

SENATOR MACEDA. In line with our interpellations that REP. ISIDRO: Because when we say combination it
sometimes "one" or maybe even "two" acts may seems that
already result in such a big amount, on line 25, would
the Sponsor consider deleting the words "a series of THE CHAIRMAN (REP. GARCIA): Two.
overt or." To read, therefore "or conspiracy
COMMITTED by criminal acts such." Remove the idea REP. ISIDRO: Not only two but we seem to mean that
of necessitating "a series." Anyway, the criminal acts two of the enumerated means not twice of one
are in the plural. enumeration.

SENATOR TAADA. That would mean a combination of THE CHAIRMAN (REP. GARCIA): No, no, not twice
two or more of the acts mentioned in this.
REP. ISIDRO: Not twice?
THE PRESIDENT. Probably, two or more would be . . .
THE CHAIRMAN (REP. GARCIA): Yes, combination is
SENATOR MACEDA. Yes, because "a series" implies not twice but combination, two acts.
several or many; two or more.
REP. ISIDRO: So in other words, thats it. When we
SENATOR TAADA: Accepted, Mr. President. say combination, we mean, two different acts. It can
not be a repetition of the same act.
. . . .
THE CHAIRMAN (REP. GARCIA): That be referred to
THE PRESIDENT: If there is only one then he has to be series. Yeah.
prosecuted under the particular crime. But when we
say "acts of plunder" there should be, at least, two or REP. ISIDRO: No, no. Supposing one act is repeated,
more. so there are two.

SENATOR ROMULO: In other words, that is already THE CHAIRMAN (REP. GARCIA): A series.
covered by existing laws, Mr. President. 29
REP. ISIDRO: Thats not [a] series. Its a combination.
Indeed, the record shows that no amendment to S. No. Because when we say combination or series, we seem
733 was proposed to this effect. To the contrary, to say that two or more, di ba?
Senators Gonzales and Taada voted in favor of the
bill on its third and final reading on July 25, 1989. The THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes
ordinary meaning of the term "combination" as the it really, from ordinary crimes. That is why, I said, that
"union of two things or acts" was adopted, although in is a very good suggestion because if it is only one act,
the case of "series," the senators agreed that a it may fall under ordinary crime but we have here a
repetition of two or more times of the same thing or combination or series of overt or criminal acts. So . . .
act would suffice, thus departing from the ordinary
meaning of the word as "a group of usually three or REP. ISIDRO: When you say "combination", two
different? question of law or fact common to all such plaintiffs or
to all such defendants may arise in the action, but the
THE CHAIRMAN (REP. GARCIA): Yes. court may make such orders as may be just to prevent
any plaintiff or defendant from being embarrassed or
THE CHAIRMAN (SEN. TAADA): Two different . . . put to expense in connection with any proceedings in
which he may have no interest. (Emphasis added)
REP. ISIDRO: Two different acts.
This provision has been in our Rules of Court since
THE CHAIRMAN (REP. GARCIA): For example, ha . . . 1940 but it has never been thought of as vague. It will
not do, therefore, to cite the conflict of opinions in the
REP. ISIDRO: Now a series, meaning, repetition . . . United States as evidence of the vagueness of the
31 phrase when we do not have any conflict in this
country.
Thus, resort to the deliberations in Congress will
readily reveal that the word "combination" includes at B. "Patterns of overt or criminal acts"
least two different overt criminal acts listed in R.A. No.
7080 such as misappropriation (1(d)(1)) and taking Petitioner contends that it is enough that there be at
undue advantage of official position (1(d)(6)). On the least two act to constitute either a combination or
other hand, "series" is when the offender commits the series because it also mentions "a pattern of overt or
same overt or criminal act more than once. There is no criminal acts indicative of the overall scheme or
plunder if only one act is proven, even if the ill-gotten conspiracy," and "pattern" means "an arrangement or
wealth acquired thereby amounts to or exceeds the order of things or activity."cralaw virtua1aw library
figure fixed by the law for the offense (now
P50,000,000.00) The overt or criminal acts need not A "pattern of overt or criminal acts" is required in 4 to
be joined (or separated in space or time, since the law prove "an unlawful scheme or conspiracy." In such a
does not make such a qualification. It is enough that case, it is not necessary to prove each and every
the prosecution proves that a public officer, by himself criminal act done in furtherance of the scheme or
or in connivance with others, amasses wealth conspiracy so long as those proven show a pattern
amounting to at least P50 million by committing two or indicating the scheme or conspiracy. In other words,
more overt or criminal acts. when conspiracy is charged, there must be more than
a combination or series of two or more acts. There
Petitioner also contends that the phrase "series of acts must be several acts showing a pattern which is
or transactions" is the subject of conflicting decisions "indicative of the overall scheme or conspiracy." As
of various Circuit Courts of Appeals in the United Senate President Salonga explained, if there are 150
Sates. It turns out that the decisions concerned a constitutive crimes charged, it is not necessary to
phrase in Rule 8(b) of the Federal Rules of Criminal prove beyond reasonable doubt all of them. If a
Procedure which provides:chanrob1es virtua1 1aw pattern can be shown by providing, for example, 10
1ibrary criminal acts, then that would be sufficient to secure
conviction. 32
(b) Joinder of Defendants. Two or more defendant may
be charged in the same indictment or information they The State is thereby enabled by this device to deal
are alleged to have participated in the same act or with several acts constituting separate crimes as just
transaction or in the same series of acts or one crime of plunder by allowing their prosecution by
transactions constituting an offense or offenses. Such means of a single information because there is a
defendants may be charged in one or more counts common purpose for committing them, namely, that of
together or separately and all of the defendants need "amassing, accumulating or acquiring wealth through
not to be charged on each count. (Emphasis added) such overt or criminal acts. The pattern is the
organizing principle that defines what otherwise would
The fact that there is a conflict in the ruling of the be discreet criminal acts into the single crime of
various courts does not mean that Rule 8(b) is void for plunder.
being vague but only that the U.S. Supreme Court
should step in, for one of its essential functions is to As thus applied to petitioner, the Anti-Plunder Law
assure the uniform interpretation of federal laws. presents only problems of statutory construction, not
vagueness or overbreadth. In Primicias v. Fugoso, 33
We have a similar provision in Rule 3, 6 of the 1997 an ordinance of the City of Manila, prohibiting the
Code of Civil Procedure. It reads:chanrob1es virtual holding of parades and assemblies in streets and public
1aw library places unless a permit was first secured from the city
mayor and penalizing its violation was construed to
SEC. 6. Permissive joinder of parties. All persons in mean that it gave the city mayor only the power to
whom or against whom any right to relief in respect to specify the streets and public places which can be used
or arising out of the same transaction or series of for the purpose but not the power to ban absolutely
transactions is alleged to exist, whether jointly, the use of such places. A constitutional doubt was thus
severally, or in the alternative, may, except as resolved through a limiting construction given to the
otherwise provided in these Rules, join as plaintiffs or ordinance.chanrob1es virtua1 1aw 1ibrary
be joined as defendants in one complaint, where any
Nor is the alleged difference of opinion among the A. Plunder A Malum In Se Requiring Proof of Mens Rea
Ombudsman, the Solicitor General, and the
Sandiganbayan as to the number of acts or crimes Plunder is a malum in se, requiring proof of criminal
needed to constitute plunder proof of the vagueness of intent. Precisely because the constitutive crimes are
the statute and, therefore, a ground for its mala in se the element of mens rea must be proven in
invalidation. For sometime, it was thought that under a prosecution for plunder. It is noteworthy that the
Art. 134 of the Revised Penal Code convictions can be amended information alleges that the crime of plunder
had for the complex crime of rebellion with murder, was committed "willfully, unlawfully and criminally." It
arson and other common crimes. The question was thus alleges guilty knowledge on the part of petitioner.
finally resolved in 1956 when this Court held that there
is no such complex crime because the common crimes In support of his contention that the statute eliminates
were absorbed in rebellion. 34 The point is that Art. the requirement of mens rea and that is the reason he
134 gave rise to a difference of opinion that nearly claims the statute is void, petitioner cites the following
split the legal profession at the time, but no one remarks of Senator Taada made during the
thought Art. 134 to be vague and, therefore, deliberation on S. No. 733:chanrob1es virtual 1aw
void.cralaw : red library

Where, therefore, the ambiguity is not latent and the SENATOR TAADA . . . And the evidence that will be
legislative intention is discoverable with the aid of the required to convict him would not be evidence for each
canons of construction, the void for vagueness doctrine and every individual criminal act but only evidence
has no application. sufficient to establish the conspiracy or scheme to
commit this crime of plunder. 39
In Connally v. General Constr. Co. 35 the test of
vagueness was formulated as follows:chanrob1es However, Senator Taada was discussing 4 as shown
virtual 1aw library by the succeeding portion of the transcript quoted by
petitioner:chanrob1es virtua1 1aw 1ibrary
[A] statute which either forbids or requires the doing of
an act in terms so vague that men of common SENATOR ROMULO: And, Mr. President, the Gentleman
intelligence must necessarily guess at its meaning and feels that it is contained in Section 4, Rule of Evidence
differ as to its application, violates the first essential of which, in the Gentlemans view, would provide for a
due process of law. speedier and faster process of attending to this kind of
cases?
Holmess test was that of the viewpoint of the bad
man. In The Path of the Law Holmes said:chanrob1es SENATOR TAADA: Yes, Mr. President . . . 40
virtual 1aw library
Senator Taada was only saying that where the charge
If you want to know the law and nothing else, you is conspiracy to commit plunder, the prosecution need
must look at it as a bad man, who cares only for the not prove each and every criminal act done to further
material consequences which such knowledge enables the scheme or conspiracy, it being enough if it proves
him to predict, not as a good one who finds his beyond reasonable doubt a pattern of overt or criminal
reasons for conduct, whether inside the law or outside acts in indicative of the overall unlawful scheme or
of it, in the vaguer sanctions of conscience. 36 conspiracy. As far as the acts constituting the pattern
are concerned, however, the elements of the crime
Whether from the point of view of a man of common must be proved and the requisite mens rea must be
intelligence or from that of a bad man, there can be no shown.
mistaking the meaning of the Anti-Plunder Law as
applied to petitioner. Indeed, 2 provides that

IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF Any person who participated with the said public officer
OF MENS REA in the commission of an offense contributing to the
crime or plunder shall likewise be punished for such
Petitioner argues that, in enacting the statute in offense. In the imposition of penalties, the degree of
question, Congress eliminated the element of mens participation and the attendance of mitigating and
rea, or the scienter, thus reducing the burden of extenuating circumstances, as provided by the Revised
evidence required for proving the crimes which are Penal Code, shall be considered by the court.
mala in se. 37
The application of mitigating and extenuating
There are two points raised in this contention. First is circumstances in the Revised Penal Code to
the question whether the crime of plunder is a malum prosecutions under the Anti-Plunder Law indicates
in se or a malum prohibitum. For if it is a malum quite clearly that mens rea is an element of plunder
prohibitum, as the Ombudsman and the Solicitor since the degree of responsibility of the offender is
General say it is, 38 then there is really a determined by his criminal intent. It is true that 2
constitutional problem because the predicate crimes refers to "any person who participates with the said
are mainly mala in se. public officers in the commission of an offense
contributing to the crime of plunder." There is no
reason to believe, however, that it does not apply as
well to the public officer as principal in the crime. As The legislative declaration in R.A. No. 7659 that
Justice Holmes said: "We agree to all the generalities plunder is a heinous offense implies that it is a malum
about not supplying criminal laws with what they omit, in se. For when the acts punished are inherently
but there is no canon against using common sense in immoral or inherently wrong, they are mala in se 43
construing laws as saying what they obviously mean. and it does not matter that such acts are punished in a
41 special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it
Finally, any doubt as to whether the crime of plunder would be absurd to treat prosecutions for plunder as
is a malum in se must be deemed to have been though they are mere prosecutions for violations of the
resolved in the affirmative by the decision of Congress Bouncing Check Law (B.P. Blg. 22) or of an ordinance
in 1993 to include it among the heinous crimes against jaywalking, without regard to the inherent
punishable by reclusion perpetua to death. Other wrongness of the acts.
heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of B. The Penalty for Plunder
heinous crimes, this Court held in People v. Echegaray
42 The second question is whether under the statute the
prosecution is relieved of the duty of proving beyond
The evil of a crime may take various forms. There are reasonable doubt the guilt of the defendant. It is
crimes that are, by their very nature, despicable, contended that, in enacting the Anti-Plunder Law,
either because life was callously taken or the victim is Congress simply combined several existing crimes into
treated like an animal and utterly dehumanized as to a single one but the penalty which it provided for the
completely disrupt the normal course of his or her commission of the crime is grossly disproportionate to
growth as a human being . . . . Seen in this light, the the crimes combined while the quantum of proof
capital crimes of kidnapping and serious illegal required to prove each predicate crime is greatly
detention for ransom resulting in the death of the reduced.
victim or the victim is raped, tortured, or subjected to
dehumanized acts; destructive arson resulting in We have already explained why, contrary to
death; and drug offenses involving minors or resulting petitioners contention, the quantum of proof required
in the death of the victim in the case of other crimes. to prove the predicate crimes in plunder is the same as
as well as murder, rape, parricide, infanticide, that required were they separately prosecuted. We
kidnapping and serious illegal detention, where the therefore, limit this discussion to petitioners claim that
victim is detained for more than three days or serious the penalties provided in the Anti-Plunder Law is
physical injuries were inflicted on the victim or threats grossly disproportionate to the penalties imposed for
to kill him were made or the victim is a minor, robbers the predicate crimes. Petitioner cites the following
with homicide, rape or intentional mutilation, examples:chanrob1es virtual 1aw library
destructive arson, and carnapping where the owner,
driver or occupant of the carnapped vehicle is killed or For example, please consider the following
raped which are penalized by reclusion perpetua to combination or series of overt or criminal acts
death, are clearly heinous by their very nature. (assuming the P50 M minimum has been acquired) in
light of the penalties laid down in the Penal
There are crimes, however, in which the abomination Code:chanrob1es virtual 1aw library
lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political a. One act of indirect bribery penalized under .Art. 211
and economic context in which the state finds itself to of the Revised Penal Code with prision correccional in
be struggling to develop and provide for its poor and its medium and maximum periods)
underprivileged masses. Reeling from decades of
corrupt tyrannical rule that bankrupted the combined with
government and impoverished the population, the
Philippine Government must muster the political will to one act of fraud against the public treasury (penalized
dismantle the culture of corruption, dishonesty, greed under Art. 213 of the Revised Penal Code with prision
and syndicated criminality that so deeply entrenched correccional in its medium period to prision mayor in
itself in the structures of society and the psyche of the its minimum period,
populace. [With the government] terribly lacking in the
money to provide even the most basic services to its equals
people any form of misappropriation or misapplication
of government funds translates to an actual threat to plunder (punished by reclusion perpetua to death plus
the very existence of government, and in turn, the forfeiture of assets under R.A. 7080)
very survival of the people it governs over. Viewed in
this context, no less heinous are the effects and b. One act of prohibited transaction (penalized under
repercussions of crimes like qualified bribery, Art. 215 of the Revised Penal Code with prision
destructive arson resulting in death, and drug offenses correccional in its minimum period or a fine ranging
involving government officials, employees or officers, from P200 to P1,000 or both),
that their perpetrators must not be allowed to cause
further destruction and damage to society. combined with
and graft but constitute the plunder of an entire nation
one act of establishing a commercial monopoly resulting in material damage to the national economy.
(penalized under Art. 186 of Revised Penal Code with The above-described crime does not yet exist in
prision correccional in its minimum period or a fine Philippine statute books. Thus, the need to come up
ranging from P200 to P6,000, or both), with a legislation as a safeguard against the possible
recurrence of the depravities of the previous regime
equals and as a deterrent to those with similar inclination to
succumb to the corrupting influences of power.
plunder (punished by reclusion perpetua to death, and
forfeiture of assets under R.A. 7080 Many other examples drawn from the Revised Penal
Code and from special laws may be cited to show that
c. One act of possession of prohibited interest by a when complex crimes are created out of existing
public officer (penalized with prision correccional in its crimes, the penalty for the new crime is heavier.
minimum period or a fine of P200 to P1,000, or both
under Art. 216 of the Revised Penal Code). _________________

combined with To recapitulate, had R.A. No. 7080 been a law


regulating speech, I would have no hesitation
one act of combination or conspiracy in restraint of examining it on its face on the chance that some of its
trade (penalized under Art. 186 of the Revised Penal provisions even though not here before us are
Code with prision correccional in its minimum period, void. For then the risk that some state interest might
or a fine of P200 to P1,000, or both, be jeopardized, i.e. the interest in the free flow of
information or the prevention of "chill on the freedom
equals of expression, would trump any marginal interest in
security.
plunder, punished by reclusion perpetua to death, and
forfeiture of assets) 44 But the Anti-Plunder Law is not a regulation of speech.
It is a criminal statute designed to combat graft and
But this is also the case whenever other special corruption, especially those committed by highly-
complex crimes are created out of two or more existing placed public officials. As conduct and not speech is its
crimes. For example, robbery with violence against or object, the Court cannot take chances by examining
intimidation of persons under Art. 294, par. 5 of the other provisions not before it without risking vital
Revised Penal Code is punished with prision interests of society. Accordingly, such statute must be
correccional in its maximum period (4 years, 2 examined only "as applied" to the defendant and, if
months, and 1 day) to prision mayor in its medium found valid as to him, the statute as a whole should
period (6 years and 1 day to 8 years). Homicide under not be declared unconstitutional for overbreadth or
Art. 249 of the same Code is punished with reclusion vagueness of its other provisions. Doing so, I come to
temporal (12 years and 1 day to 20 years). But when the following conclusions:chanrob1es virtual 1aw
the two crimes are committed on the same occasion, library
the law treats them as a special complex crime of
robbery with homicide and provides the penalty of 1. That the validity of R.A. No. 7080, otherwise known
reclusion perpetua to death for its commission. Again, as the Anti-Plunder Law, cannot be determined by
the penalty for simple rape under Art. 266-B of the applying the test of strict scrutiny in free speech cases
Revised Penal Code is reclusion perpetua, while that without disastrous consequences to the States effort
for homicide under Art. 249 it is reclusion temporal (12 to prosecute crimes and that, contrary to petitioners
years and 1 day to 20 years). Yet, when committed on contention, the statute must be presumed to be
the same occasion, the two are treated as one special constitutional;chanrob1es virtua1 1aw 1ibrary
complex crime of rape with homicide and punished
with a heavier penalty of reclusion perpetua to death. 2. That in determining the constitutionality of the Anti-
Obviously, the legislature views plunder as a crime as Plunder Law, its provisions must be considered in light
serious as robbery with homicide or rape with homicide of the particular acts alleged to have been committed
by punishing it with the same penalty. As the by petitioner;
explanatory note accompanying, S. No., 733
explains:chanrob1es virtual 1aw library 3. That, as applied to petitioner, the statute is neither
vague nor overbroad;
Plunder, a term chosen from other equally apt
terminologies like kleptocracy and economic treason, 4. That, contrary to the contention of the Ombudsman
punishes the use of high office for personal and the Solicitor General, the crime of plunder is a
enrichment, committed thru a series of acts done not malum in se and not a malum prohibitum and the
in the public eye but in stealth and secrecy over a burden of proving each and every predicate crime is on
period of time, that may involve so many persons, the prosecution.
here and abroad, and which touch so many states and
territorial units. The acts and/or omissions sought to For these reasons, I respectfully submit that R.A. No.
be penalized do not involve simple cases of 7080 is valid and that, therefore, the petition should
malversation of public funds, bribery, extortion, theft be dismissed.
laid down the test to determine whether a statute is
Davide, Jr., C.J., Melo, Puno, Vitug, and vague. It has decreed that as long as a penal law can
Quisumbing, JJ., concur. answer the basic query "What is the violation?," it is
constitutional. "Anything beyond this, the hows and
PANGANIBAN, J., concurring:chanrob1es virtual 1aw the whys, are evidentiary matters which the law
library cannot possibly disclose in view of the uniqueness of
every case . . . ."cralaw virtua1aw library
In his Petition for Certiorari under Rule 65 of the Rules
of Court, former President Joseph Ejercito Estrada Elements of Plunder
seeks the annulment of the Sandiganbayan Resolution
dated July 9, 2001, which denied his Motion to Quash. The Anti-Plunder Law more than adequately answers
He further prays to prohibit the anti-graft court from the question "What is the violation?" Indeed, to
conducting the trial of petitioner in Criminal Case No. answer this question, any law student using basic
26558, on the ground that the statute under which he knowledge of criminal law will refer to the elements
has been charged the Anti-Plunder Law or Republic of the crime, which in this case are plainly and
Act (RA) 7080 is unconstitutional. certainly spelled out in a straightforward manner in
Sections 2 and 1(d) thereof. Those elements
In sum, he submits three main arguments to support are:chanrob1es virtual 1aw library
his thesis, as follows:chanrob1es virtual 1aw library
1. The offender is a public officer acting by himself or
1. "RA 7080 is vague and overbroad on its face and in connivance with members of his family, relatives by
suffers from structural deficiency and ambiguity." 1 affinity or consanguinity, business associates,
subordinates or other persons.
2. "RA 7080 reduces the standard of proof necessary
for criminal conviction, and dispenses with proof 2. The offender amasses, accumulates or acquires ill-
beyond reasonable doubt of each and every criminal gotten wealth.
act done in furtherance of the crime of plunder." 2
3. The aggregate amount or total value of the ill-
3. RA 7080 has been admitted by respondent to be gotten wealth so amassed, accumulated or acquired is
malum prohibita which deprives petitioner of a basic at least fifty million pesos (P50,000,000).
defense in violation of due process." 3
4. Such ill-gotten wealth defined as any asset,
I have read former President Estradas Petition, Reply, property, business enterprise or material possession of
Memorandum and other pleadings and listened any of the aforesaid persons (the persons within the
carefully to his Oral Argument. However, I cannot purview of Section 2, RA 7080) has been acquired
agree with his thesis for the following directly or indirectly through dummies, nominees,
reasons:chanrob1es virtual 1aw library agents, subordinates and/or business associates by
any combination or series of the following means or
(1) RA 7080 is not vague or overbroad. Quite the similar schemes:chanrob1es virtual 1aw library
contrary, it is clear and specific especially on what it
seeks to prohibit and to penalize. (i) through misappropriation, conversion, misuse or
malversation of public funds or raids on the public
(2) The Anti-Plunder Law does not lessen the degree of treasury;
proof necessary to convict its violator in this
case, Petitioner. (ii) by receiving, directly or indirectly, any commission,
gift, share, percentage, kickbacks or any other form of
(3) Congress has the constitutional power to enact pecuniary benefit from any person and/or entity in
laws that are mala prohibita and, in exercising such connection with any government contract or project or
power, does not violate due process of law. by reason of the office or position of the public officer
concerned;
First Issue:jgc:chanrobles.com.ph
(iii) by the illegal or fraudulent conveyance or
"Void for Vagueness" Not Applicable disposition of assets belonging to the national
government or any of its subdivisions, agencies or
In the main, petitioner attacks RA 7080 for being instrumentalities or government-owned or controlled
allegedly vague and ambiguous, for "wanting in its corporations and their subsidiaries;
essential terms," and for failing to define what degree
of participation means as [it] relates to the person or (iv) by obtaining, receiving or accepting directly or
persons charged with having participated with a public indirectly any shares of stock, equity or any other form
officer in the commission of plunder." 4 of interest or participation including the promise of
future employment in any business enterprise or
In Dans v. People, 5 reiterated recently in Sajul v. undertaking;
Sandiganbayan, 6 this Court debunked the "void for
vagueness" challenge to the constitutionality of Section (v) by establishing agricultural, industrial or
3(g) of the Anti-Graft Law (RA 3019, as amended) and commercial monopolies or other combination and/or
implementation of decrees and orders intended to misgivings voiced by Senator Gonzales as to the use of
benefit particular persons or special interests; or the two terms were adequately addressed, answered
and disposed of the following day.
(vi) by taking undue advantage of official position,
authority, relationship, connection or influence to Thus, Senate Bill No 733, defining and penalizing
unjustly enrich himself or themselves at the expense plunder, was passed and approved on third reading on
and to the damage and prejudice of the Filipino people July 25, 1989, with 19 affirmative votes (including
and the Republic of the Philippines. 7 those of Senators Gonzales, Taada, Maceda, and
petitioner himself) sans any negative vote or
Petitioner argues that, notwithstanding the above- abstention. Indeed, some of the sharpest legal minds
detailed statement of the elements of the crime, there in the country voted to approve the bill, even though it
is still vagueness because of the absence of definitions was bereft of statutory definitions. Likewise, it would
of the terms combination, series and pattern in the certainly be inconceivable for Senator Gonzales to
text of the law. have voted for the approval of the Bill had he believed
that it was vague to the point of constitutional
Citing People v. Nazario, 8 petitioner adds that "a infirmity; or at the very least, if he believed that his
statute or act may be said to be vague when it lacks earlier reservations or apprehensions were not fully
comprehensible standards that men of common satisfied.
intelligence must necessarily guess at its meaning and
differ as to its application."cralaw virtua1aw library At this juncture, may I call attention to the Record of
the Joint Conference Meeting held on May 7, 1991. 16
I say, however, that in that very case cited by The portion thereof relied upon by petitioner 17
petitioner, the Court cautioned that the act (or law) features the exchanges involving Representatives
must be utterly vague on its face." When it can be Garcia and Isidro and Senator Taada on the meanings
"clarified either by a saving clause or by construction," of the terms combination and series. The quoted part
the law cannot be decreed as invalid. In other words, of the Record would suggest that, somehow,
the absence of statutory definitions of words used in a particularly towards the end of the meeting, the
statute will not render the law "void for vagueness," if discussion among the legislators seemed to have
the meanings of such words can be determined degenerated into a clutch of finished sentences and
through the judicial function of construction. 9 unintelligible phrases. Still, I believe that the
deliberations did not actually sound the way they were
Solution: Simple Statutory Construction subsequently transcribed or as they now appear on the
Record. Even more reluctant am I to agree with
Indeed, simple statutory construction, not a petitioner that the apparent tenor of the deliberations
declaration of unconstitutionality, is the key to the evinced "a dearth of focus to render precise the
allegedly vague words of the Anti-Plunder Law. And definition of the terms," or that the Committee
the most basic rule in statutory construction is to members themselves were not clear on the meanings
ascertain the meaning of a term from the legislative of the terms in question.
proceedings. Verily, in the judicial review of a laws
meanings the legislative intent is paramount. 10 Most of us in the legal profession are all too familiar
with the vagaries of stenographic note-taking,
Pervading the deliberations of the Bicameral especially in courtrooms and legislative halls. Too
Conference Committee on Justice held on May 7, 1991 often, lawyers, parties-litigants and even judges find
was the common understanding of combination as a themselves at the mercy of stenographers who are
joining or combining of at least two dissimilar things or unfamiliar with certain legal terms; or who cannot hear
acts, and series as a repetition or recurrence of the well enough or take notes fast enough; or who simply
same thing at least twice 11 . As a matter of fact, the get confused, particularly when two or more persons
same understanding of those terms also prevailed happen to be speaking at the same time. Often,
during the Senate deliberations on Senate Bill No. 733 transcripts of stenographic notes have portrayed
(Plunder) earlier held on June 6, 1989. 12 The Records lawyers, witnesses, legislators and judges as blithering
of those deliberations speak for themselves. idiots, spouting utterly nonsensical jargon and plain
inanities in the course of a proceeding. The Record in
It is true that during the deliberations in the Senate, question is no exception.
the late Senator Neptali A. Gonzales initially raised
concerns over the alleged vagueness in the use of the Rather than believe that the distinguished lawmakers
terms combination and series. I respectfully submit, went about their business uttering senseless half-
however, that the reliance 13 of petitioner on such sentences to one another, I think that these learned
concerns is misplaced. That portion of the and intelligent legislators of both chambers knew what
interpellations, evincing the late senators reservations they were talking about, spoke their minds, and
on the matter, had taken place during the session of understood each other well, for the Record itself does
June 5, 1989. 14 And the clarificatory remarks of not indicate the contrary. Neither does it show any
Senate President Jovito R. Salonga and Senators details or minutiae that would indicate that they
Wigberto Taada, Alberto Romulo and Ernesto Maceda. abandoned their earlier common understanding of the
which threw light on the matters in doubt, happened terms combination and series.
the following day, June 6, 1989. 15 In brief, the
Specific Number or Percentage Not Always Necessary
Petitioner insists that innocent acts are in effect
Regrettably, I shall also have to take issue with criminalized by RA 7080, because it allegedly penalizes
petitioners disquisition to the effect that "when penal combinations or series of acts coming within the
laws enacted by Congress make reference to a term or purview of the means or similar schemes enumerated
concept requiring a quantitative definition, these laws under items 4 and 5 of Section 1(d) of the law, which
are so crafted as to specifically state the exact number reads as follows:jgc:chanrobles.com.ph
or percentage necessary to constitute the elements of
a crime," followed by a recitation of the minimum "4. By obtaining, receiving or accepting directly or
number of malefactors mentioned in the statutory indirectly any shares of stock, equity or any other
definitions of band, conspiracy, illegal recruitment by forms of interest or participation including the promise
syndicate, large-scale illegal recruitment, of future employment in any business enterprise or
organized/syndicated crime group, and swindling by a undertaking;
syndicate. Thus, he insinuates that, because RA 7080
has failed to specify precisely the minimum number of "5. By establishing agricultural, industrial or
malefactors needed for an offense to be properly commercial monopolies or other combinations and/or
classified as plunder, the law is vague or has somehow implementation of decrees and orders intended to
failed to meet the standard for penal laws. benefit particular persons or special interests"

The aforequoted discourse would appear to be That such contention "deserves scant attention" is an
incongruous, if not totally misleading. As pointed out understatement of the extreme sort. The claim of
during the Oral Argument on September 18, 2001, the "innocent acts "is possible only because items 4 and 5
crime of plunder can be committed by a public officer have been taken completely out of context and read in
acting alone. Section 2 of RA 7080 reads as follows: isolation instead of in relation to the other provisions of
"Definition of the Crime of Plunder, Penalties. Any the same law, particularly Section 2. The above-
public officer who, by himself or in connivance with . . . enumerated acts, means or similar schemes must be
." Thus, the insistence on a mathematical specification understood as having reference to or connection with
or precise quantification is essential without basis. And the acquisition of ill-gotten wealth by a public officer,
lest anyone believe that the Anti-Plunder Law is by himself or in connivance with others. Those acts are
unusual in this respect, let me just recall that the RICO therefore not innocent acts. Neither are these
law, to which petitioner made repeated references in prohibitions new or unfamiliar. The proscribed acts
his Amended Petition, can likewise be violated by a under item 4, for instance, may to some extent be
single individual. 18 traced back to some of the prohibitions in RA 3019
(the Anti-Graft Law). Section 3, the pertinent part of
Not Oppressive or Arbitrary such law, reads as follows:jgc:chanrobles.com.ph

Neither can it be said that RA 7080 is oppressive or "SEC. 3. Corrupt practices of public officers. In
arbitrary for imposing a more severe penalty on a addition to acts or omissions of public officers already
combination or series of the offenses enumerated in penalized by existing law, the following shall constitute
Section 1 (d) of the law, than would otherwise be corrupt practices of any public officer and are hereby
imposed if the said offenses were taken separately. As declared to be unlawful:jgc:chanrobles.com.ph
Mr. Justice Mendoza lucidly pointed out in his
interpellation during the Oral Argument, the Anti- "(a) . . . . . . . . . . . . . . . .
Plunder Law is merely employing a familiar technique
or feature of penal statutes, when it puts together "(b) Directly or indirectly requesting or receiving any
what would otherwise be various combinations of gift, present, share, percentage, or benefit, for himself
traditional offenses already proscribed by existing laws or for any other person, in connection with any
and attaching thereto higher or more severe penalties contract or transaction between the Government and
than those prescribed for the same offenses taken any other party wherein the public officer in his official
separately.chanrob1es virtua1 1aw 1ibrary capacity has to intervene under the law.

Here, Mr. Justice Mendoza is referring to special "(c) Directly or indirectly requesting or receiving any
complex crimes like rape with homicide or robbery with gift, present or other pecuniary or material benefit, for
homicide. During the Oral Argument, he asked whether himself or for another, from any person for whom the
petitioners counsel was in fact suggesting that such public officer, in any manner or capacity, has secured
special complex crimes a very important part of the or obtained, or will secure or obtain, any Government
Revised Penal Code and well-entrenched in our penal permit or license, in consideration for the help given or
system were violative of due process and the to be given, without prejudice to Section Thirteen of
constitutional guarantees against cruel and unusual this Act.
punishment and should also be struck down. It goes
without saying that the legislature is well within its "(d) Accepting or having any member of his family
powers to provide higher penalties in view of the grave accept employment in a private enterprise which has
evils sought to be prevented by RA 7080. pending official business with him during the pendency
thereof or within one year after its termination.
Innocent Acts Not Penalized by RA 7080
x x x paving the way for his possible conviction because,
following that line of argument, the entire Revised
Penal Code would be reckoned to be an infringement of
"(h) Directly or indirectly having financial or pecuniary constitutional rights.
interest in any business, contract or transaction in
connection with which he intervenes or takes part in "Pattern of Overt or Criminal Acts"
his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest. Petitioner, in line with his "void for vagueness" attack
on RA 7080, faults the statute for failing to provide a
x x x definition of the phrase a pattern of overt or criminal
acts indicative of the overall unlawful scheme or
conspiracy used in Section 4 of the law. This definition
On the other hand, the prohibited acts under item 5 is crucial since, according to him, such pattern is an
have antecedents in the Revised Penal Codes essential element of the crime of plunder.
interdiction against monopolies and combinations in
restraint of trade. Clearly, the acts dealt with in Items A plain reading of the law easily debunks this
4 and 5 of Section 1(d) are in no wise the innocent or contention. First, contrary to petitioners suggestions,
innocuous deeds that petitioner would have us mistake such pattern of overt or criminal acts and so on is not
them for. and should not be deemed an essential or substantive
element of the crime of plunder. It is possible to give
RA 7080 Not Suffering from Overbreadth full force and effect to RA 7080 without applying
Section 4 an accused can be charged and convicted
In connection with the foregoing discussion, petitioner under the Anti-Plunder Law without resorting to that
also charges that RA 7080 suffers from "overbreadth." specific provision. After all, the heading and the text of
I believe petitioner misconstrues the concept. In the Section 4, which I quote below, leave no room for
very recent case People v. Dela Piedra, 19 this Court doubt that it is not substantive in
held:jgc:chanrobles.com.ph nature:jgc:chanrobles.com.ph

"A statute may be said to be overbroad where it "SEC. 4. Rule of Evidence. For purposes of
operates to inhibit the exercise of individual freedoms establishing the crime of plunder, it shall not be
affirmatively guaranteed by the Constitution, such as necessary to prove each and every criminal act done
the freedom of speech or religion. A generally worded by the accused in furtherance of the scheme or
statute, when construed to punish conduct which conspiracy to amass, accumulate or acquire ill-gotten
cannot be constitutionally punished, is wealth, it being sufficient to establish beyond
unconstitutionally vague to the extent that it fails to reasonable doubt a pattern of overt or criminal acts
give adequate warning of the boundary between the indicative of the overall unlawful scheme or
constitutionally permissible and the constitutionally conspiracy." (Emphasis supplied)chanrob1es virtua1
impermissible applications of the statute. 1aw 1ibrary

"In Blo Umpar Adiong v. Commission on Elections, for As Mr. Chief Justice Davide very astutely pointed out
instance, we struck down as void for overbreadth during the Oral Argument, Section 2 in relation to
provisions prohibiting the posting of election Section 1(d) deals with how the crime of plunder is
propaganda in any place including private vehicles committed. Hence, these two sections constitute the
other than in the common poster areas sanctioned substantive elements, whereas Section 4 deals with
by the COMELEC. We held that the challenged how the crime is proved and is therefore not
provisions not only deprived the owner of the vehicle substantive, but merely procedural. It may be
the use of his property but also deprived the citizen of disregarded or discarded if found defective or deficient,
his right to free speech and information. The without impairing the rest of the statute.
prohibition in Adiong, therefore, was so broad that it
covered even constitutionally guaranteed rights and, Actually, the root of this problem may be traced to an
hence, void for overbreadth. In the present case, observation made by Rep. Pablo Garcia, chair of the
however, appellant did not even specify what House Committee on Justice, that RA 7080 had been
constitutionally protected freedoms are embraced by patterned after the RICO Law. 20 Petitioner apparently
the definition of recruitment and placement that seized on this statement and on the assertions in H. J.
would render the same constitutionally overbroad." Inc. v. Northwestern Bell 21 and other cases that a
(Emphasis supplied) pattern of racketeering is a" key requirement" in the
RICO Law and a "necessary element" of violations
Similarly, in the instant case, petitioner has not thereof. He then used these as the springboard for his
identified which of his constitutionally protected vagueness attacks on RA 7080. However, his reliance
freedoms, if any, are allegedly being violated by the on the RICO law is essentially misplaced. Respondent
Anti-Plunder Law. As Mr. Justice Mendoza pointed out Sandiganbayan correctly held that the said legislation
to petitioners counsel during the Oral Argument, was essentially different from our Anti-Plunder Law, as
specious and even frivolous is the contention that RA it pointed out in its Resolution of July 9, 2001, which I
7080 infringes on the constitutional right of petitioner quote:jgc:chanrobles.com.ph
by depriving him of his liberty pending trial and by
"Accused Joseph E. Estrada claims that the Anti- this requirement. Congress was concerned in RICO
Plunder Law does not define pattern of overt or with long-term criminal conduct. Often a RICO action
criminal acts indicative of the overall scheme or will be brought before continuity can be established in
conspiracy, thereby giving prosecutors and judges this way. In such cases, liability depends on whether
unlimited discretion to determine the nature and the threat of continuity is demonstrated." 24
extent of evidence that would show pattern." (Motion (Emphasis supplied)
to Quash dated June 7, 2001, p. 13) The Court
disagrees with this contention. However, in RA 7080, precisely because of the sheer
magnitude of the crimes in question and their
". . . . According to the sponsors of the Anti-Plunder extremely deleterious effects on society, the legislative
Law in Congress, the said law is similar to the U.S. sentiment of great urgency the necessity of
RICO (Deliberations of the House of Representatives immediate deterrence of such crimes was
Committee on Revision of Law and Justice, May 24, incompatible with the RICO concept of "pattern" as
1990). However, the similarities extend only insofar as connoting either continuity over a substantial period of
both laws penalize with severe penalties the time or threat of continuity or repetitions. The
commission by a single accused or multiple accused of legislative intent 25 and policy of RA 7080 centered on
a pattern of overt or criminal acts as one continuing imposing a heavy penalty in order to achieve a strong,
crime. However, the legislative policies and objectives if not permanent, deterrent effect the sooner the
as well as the nature of the crimes penalized better. The following Senate deliberations are
respectively by the RICO and the Anti-Plunder Law are instructive:jgc:chanrobles.com.ph
different." (Emphasis supplied)
"Senator Paterno. Mr. President, [Im] not too clear yet
Indeed, a careful reading of RICO vis-a-vis RA 7080 on the reason for trying to define a crime of plunder.
can lead to no other conclusion than that the crimes Could I get some further clarification?
being penalized are completely different in nature and
character, and that the legislative objectives and "Senator Taada. Yes, Mr. President.
policies involved are quite dissimilar.
"Because of our experience in the former regime, we
In the case of RICO, legislative concern focused on the feel that there is a need for Congress to pass the
threat of continued racketeering activity, and that was legislation which would cover a crime of this
why pattern was imbued with such importance. magnitude. While it is true, we already have the Anti-
"Congress was concerned in RICO with long-term Graft Law. But that does not directly deal with plunder.
criminal conduct," 22 as the following quote That covers only the corrupt practices of public officials
indicates:jgc:chanrobles.com.ph as well as their spouses and relatives within the civil
degree, and the Anti-Graft law as presently worded
"RICOs legislative history reveals Congress intent that would not adequately or sufficiently address the
to prove a pattern of racketeering activity a plaintiff or problems that we experienced during the past regime.
prosecutor must show that the racketeering predicates
are related, and that they amount to or pose a threat "Senator Paterno. May I try to give the Gentleman, Mr.
of continued criminal activity. 23 President, my understanding of the bill?

x x x "Senator Taada. Yes.

"Senator Paterno. I envision that this bill or this kind of


"What a plaintiff or prosecutor must prove is continuity plunder would cover a discovered interconnection of
of racketeering activity, or its threat, simpliciter. This certain acts, particularly, violations of Anti-Graft and
may be done in a variety of ways, thus making it Corrupt Practices Act when, after the different acts are
difficult to formulate in the abstract any general test looked at, a scheme or conspiracy can be detected,
for continuity. We can, however, begin to delineate the such scheme or conspiracy consummated by the
requirement. different criminal acts or violations of Anti-Graft and
Corrupt Practices Act, such that the scheme or
"Continuity is both a closed and open-ended concept, conspiracy becomes a sin, as a large scheme to
referring either to a closed period of repeated conduct, defraud the public or rob the public treasury. It is
or to past conduct that by its nature projects into the parang robo and banda. It is considered as that. And,
future with a threat of repetition. . . . . It is, in either the bill seeks to define or says that P100 million is that
case, centrally a temporal concept and particularly level at which ay talagang sobra na, dapat nang
so in the RICO context, where what must be parusahan ng husto. Would it be a correct
continuous, RICOs predicate acts or offenses, and the interpretation or assessment of the intent of the bill?
relationship these predicates must bear one to
another, are distinct requirements. A party alleging a "Senator Taada. Yes, Mr. President. . . . . . .
RICO violation may demonstrate continuity over a
closed period by proving a series of related predicates "Senator Paterno. Would the Author not agree that this
extending over a substantial period of time. Predicate crime of plunder should be considered a heinous crime,
acts extending over a few weeks or months and Mr. President?
threatening no future criminal conduct do not satisfy
"Senator Taada. Yes, Mr. President. That is why, the achieve the aforesaid common goal. In the alternative,
penalty imposed under this bill is life imprisonment, if there is no such overall scheme or where the
and permanent disqualification from holding public schemes or methods used by multiple accused vary,
office. the overt or criminal acts must form part of a
conspiracy to attain said common goal.chanrob1es
"Senator Paterno. I would really ask, Mr. President, virtua1 1aw 1ibrary
whether the Author would not consider that this is a
heinous crime which, for compelling reasons, namely "Parenthetically, it can be said that the existence of a
to try and dampen the graft and corruption, Congress pattern indicating an overall scheme or a single
should provide the death penalty for the crime of conspiracy would serve as the link that will tie the
plunder. overt or criminal acts into one continuing crime of
plunder. A conspiracy exists when two or more persons
"Senator Taada. I personally would have some come into an agreement concerning the commission of
problem with that, Mr. President, because I am against a felony and decide to commit it. (Art. 8, Revised Penal
the restoration of death penalty in our criminal code. I Code). To use an analogy made by U.S. courts in
would submit that to this Body. connection with RICO violations, a pattern may be
likened to a wheel with spokes (the overt or criminal
"Senator Paterno. I respect the ministerial attitude and acts which may be committed by a single or multiple
the respect for human life of the author, Mr. President, accused), meeting at a common center (the acquisition
but I just feel that graft and corruption is such a large or accumulation of ill-gotten wealth by a public officer)
problem in our society that, perhaps, it is necessary for and with the rim (the over-all unlawful scheme or
this Congress to express itself that this crime of conspiracy) of the wheel enclosing the spokes. In this
plunder is a heinous crime which should be levied the case, the information charges only one count of [the]
death penalty, Mr. President." 26 crime of plunder, considering the prosecutions
allegation in the amended information that the series
Thus, it is clear and unarguable that "pattern," a key or combination of overt or criminal acts charged form
requirement or necessary element of RICO, is in no part of a conspiracy among all the accused." 27
wise an essential element of RA 7080.
Judiciary Empowered to Construe and Apply the Law
This conclusion is further bolstered by the fact that
pattern, in the RICO law context, is nowhere to be At all events, let me stress that the power to construe
found in the language of RA 7080 or in the law is essentially judicial. To declare what the law shall
deliberations of Congress. Indeed, the legislators were be is a legislative power, but to declare what the law is
well aware of the RICO Act; hence, they could have or has been is judicial. 28 Statutes enacted by
opted to adopt its concepts, terms and definitions and Congress cannot be expected to spell out with
installed pattern in the RICO sense as an essential mathematical precision how the law should be
element of the crime of plunder, if that were their interpreted under any and all given situations. The
intent. At the very least, they would not have application of the law will depend on the facts and
relegated the term pattern to a procedural provision circumstances as adduced by evidence which will then
such as Section 4. be considered, weighed and evaluated by the courts.
Indeed, it is the constitutionally mandated function of
Second, to answer petitioners contention directly, the the courts to interpret, construe and apply the law as
Anti-Plunder Law does in fact provide sufficient basis to would give flesh and blood to the true meaning of
get at the meaning of the term pattern as used in legislative enactments.
Section 4. This meaning is brought out in the
disquisition of Respondent Sandiganbayan in its Moreover, a statute should be construed in the light of
challenged Resolution, reproduced the objective to be achieved and the evil or mischief to
hereunder:jgc:chanrobles.com.ph be suppressed and should be given such construction
as will advance the purpose, suppress the mischief or
"The term pattern . . . is sufficiently defined in the evil, and secure the benefits intended. 29 A law is not
Anti-Plunder Law, specifically through Section 4 . . ., a mere composition, but an end to be achieved; and its
read in relation to Section 1 (d) and Section 2 of the general purpose is a more important aid to its meaning
same law. Firstly, under Section 1 (d) . . ., a pattern than any rule that grammar may lay down. 30 A
consists of at least a combination or a series of overt construction should be rejected if it gives to the
or criminal acts enumerated in subsections (1) to (6) language used in a statute a meaning that does not
of Section 1(d). Secondly, pursuant to Section 2 of the accomplish the purpose for which the statute was
law, the pattern of overt or criminal acts is directed enacted and that tends to defeat the ends that are
towards a common purpose or goal which is to enable sought to be attained by its enactment. 31
a public officer to amass, accumulate or acquire ill-
gotten wealth; and [t]hirdly, there must either be an As can be gleaned from the legislative deliberations,
overall unlawful scheme or conspiracy to achieve the Plunder Law was enacted to curb the
said common goal. As commonly understood, the term "despoliation of the National Treasury by some public
overall unlawful scheme indicates a general plan of officials who have held the levers of power" and to
action or method which the principal accused and penalize "this predatory act which has reached
public officer and others conniving with him follow to unprecedented heights and has been developed by its
practitioners to a high level of sophistication during the at best, managed merely to point out alleged
past dictatorial regime." Viewed broadly, "plunder ambiguities. Far from establishing, by clear and
involves not just plain thievery but economic unmistakable terms, any patent and glaring conflict
depredation which affects not just private parties or with the Constitution, the constitutional challenge to
personal interests but the nation as a whole." the Anti-Plunder law must fail. For just as the accused
Invariably, plunder partakes of the nature of "a crime is entitled to the presumption of innocence in the
against national interest which must be stopped, and if absence of proof beyond reasonable doubt, so must a
possible, stopped permanently." 32 law be accorded the presumption of constitutionality
without the same requisite quantum of proof.
No Patent and Clear Conflict with Constitution
Second Issue: Quantum of Evidence Not Lowered by
Against the foregoing backdrop, I believe petitioners RA 7080
heavy reliance on the void-for-vagueness concept
cannot prevail, considering that such concept, while I will now tackle petitioners impassioned asseverations
mentioned in passing in Nazario and other cases, has that the Anti-Plunder Law violates the due process
yet to find direct application in our jurisdiction. To this clause and the constitutional presumption of
date, the Court has not declared any penal law innocence.
unconstitutional on the ground of ambiguity. 33 On the
other hand, the constitutionality of certain penal Section 4 of RA 7080 provides that, for purposes of
statutes has been upheld in several cases, establishing the crime of plunder, it shall not be
notwithstanding allegations of ambiguity in the necessary to prove each and every criminal act done
provisions of law. In Caram Resources Corp. v. by the accused in furtherance of the scheme or
Contreras 34 and People v. Morato, 35 the Court conspiracy to amass, accumulate or acquire ill-gotten
upheld the validity of BP 22 (Bouncing Checks Law) wealth. This is because it would be sufficient to
and PD 1866 (Illegal Possession of Firearms), establish beyond reasonable doubt a pattern of overt
respectively, despite constitutional challenges or criminal acts indicative of the overall unlawful
grounded on alleged ambiguity. scheme or conspiracy.

Similarly, the cases cited by petitioner involving U.S. Hence, petitioner now concludes that the Anti-Plunder
federal court decisions relative to the RICO Law did not Law "eliminates proof of each and every component
at all arrive at a finding of unconstitutionality of the criminal act of plunder by the accused and limits itself
questioned statute. To repeat, reference to these U.S. to establishing just the pattern of over or criminal acts
cases is utterly misplaced, considering the substantial indicative of unlawful scheme or conspiracy." He thus
differences in the nature, policies and objectives claims that the statute penalizes the accused on the
between the RICO Law and the Anti-Plunder Law. basis of a proven scheme or conspiracy to commit
Verily, "the RICO Law does not create a new type of plunder, without the necessity of establishing beyond
substantive crime since any acts which are punishable reasonable doubt each and every criminal act done by
under the RICO Law also are punishable under existing the accused. From these premises, he precipitately,
federal and state statutes." 36 Moreover, the main albeit inaccurately, concludes that RA 7080 has ipso
purpose of the RICO Law is "to seek the eradication of facto lowered the quantum of evidence required to
organized crime in the United States." 37 secure a conviction under the challenged law. This is
clearly erroneous.chanrob1es virtua1 1aw 1ibrary
On the other hand, the Plunder Law creates an entirely
new crime that may consist of both (a) criminal acts First, petitioners allegation as to the meaning and
already punished by the Revised Penal Code or special implications of Section 4 can hardly be taken seriously,
laws and (b) acts that may not be punishable by because it runs counter to certain basic common sense
previously existing laws. Furthermore, unlike in the presumptions that apply to the process of interpreting
RICO Law, the motivation behind the enactment of the statutes: that in the absence of evidence to the
Anti-Plunder Law is "the need to for a penal law that contrary, it will be presumed that the legislature
can adequately cope with the nature and magnitude of intended to enact a valid, sensible and just law; that
the corruption of the previous regime" 38 in the law-making body intended right and justice to
accordance with the constitutional duty of the State "to prevail; 42 and that the legislature aimed to impart to
take positive and effective measures against graft and its enactments such meaning as would render them
corruption." 39 operative and effective and prevent persons from
eluding or defeating them.
In sum, the law must be proven to be clearly and
unequivocally repugnant to the Constitution before this Second, petitioners allegation is contradicted by the
Court may declare its unconstitutionality. To strike legislative Records that manifest the real intent behind
down the law, there must be a clear showing that what Section 4, as well as the true meaning and purpose of
the fundamental law prohibits, the statute allows to be the provision therein. This intent is carefully expressed
done. 40 To justify the nullification of the law, there by the words of Senate President
must be a clear, unequivocal breach of the Salonga:jgc:chanrobles.com.ph
Constitution; not a doubtful, argumentative
implication. 41 Of some terms in the law which are "Senate Pres. Salonga. Is that, if there are lets say
easily clarified by judicial construction, petitioner has, 150 crimes all in all, criminal acts, whether bribery,
misappropriation, malversation, extortion, you need beyond reasonable doubt is every element of the crime
not prove all of those beyond reasonable doubt. If you charged. For example, Mr. Speaker, there is an
can prove by pattern, lets say 10, but each must be enumeration of the things taken by the robber in the
proved beyond reasonable doubt, you do not have to information three pairs of pants, pieces of jewelry.
prove 150 crimes. Thats the meaning of this." 43 These need not be proved beyond reasonable doubt,
(Emphasis supplied) but these will not prevent the conviction of a crime for
which he was charged just because, say, instead of 3
All told, the above explanation is in consonance with pairs of diamond earrings the prosecution proved only
what is often perceived to be the reality with respect to two. Now, what is required to be proved beyond
the crime of plunder that "the actual extent of the reasonable doubt is the element of the offense.
crime may not, in its breadth and entirety, be
discovered, by reason of the stealth and secrecy in MR. ALBANO. I am aware of that, Mr. Speaker, but
which it is committed and the involvement of so many considering that in the crime of plunder the totality of
persons here and abroad and [the fact that it] touches the amount is very important, I feel that such a series
so many states and territorial units." 44 Hence, of overt (or) criminal acts has to be taken singly. For
establishing a pattern indicative of the overall unlawful instance, in the act of bribery, he was able to
scheme becomes relevant and important. accumulate only P50,000 and in the crime of extortion,
he was only able to accumulate P1 million. Now, when
Proof of Pattern Beyond Reasonable Doubt we add the totality of the other acts as required under
this bill through the interpretation on the rule of
Nevertheless, it should be emphasized that the evidence, it is just one single act, so how can we now
indicative pattern must be proven beyond reasonable convict him?
doubt. To my mind, this means that the prosecutions
burden of proving the crime of plunder is, in actuality, MR. GARCIA (P). With due respect, Mr. Speaker, for
much greater than in an ordinary criminal case. The purposes of proving an essential element of the crime,
prosecution, in establishing a pattern of overt or there is a need to prove that element beyond
criminal acts, must necessarily show a combination or reasonable doubt. For example, one essential element
series of acts within the purview of Section 1(d) of the of the crime is that the amount involved is P100
law. million. Now, in a series of defalcations and other acts
of corruption and in the enumeration the total amount
These acts which constitute the combination or series would be P110 or P120 million, but there are certain
must still be proven beyond reasonable doubt. On top acts that could not be proved, so, we will sum up the
of that, the prosecution must establish beyond amounts involved in these transactions which were
reasonable doubt such pattern of overt or criminal acts proved. Now, if the amount involved in these
indicative of the overall scheme or conspiracy, as well transactions, proved beyond reasonable doubt, is P100
as all the other elements thereof. million, then there is a crime of plunder.
(Deliberations of House of Representatives on RA
Thus, Respondent Sandiganbayan was correct in its 7080, dated October 9, 1990).
ratiocination on that point:jgc:chanrobles.com.ph
x x x
"The accused misread the import and meaning of the
above-quoted provision (Sec. 4). The latter did not
lower the quantum of evidence necessary to prove all "According to the Explanatory Note of Senate Bill No.
the elements of plunder, which still remains proof 733, the crime of plunder, which is a term chosen
beyond reasonable doubt. For a clearer understanding from other equally apt terminologies like kleptocracy
of the import of Section 4 of the Anti-Plunder Law, and economic treason, punishes the use of high office
quoted hereunder are pertinent portions of the for personal enrichment, committed through a series
legislative deliberations on the subject:chanrob1es [or combination] of acts done not in the public eye but
virtual 1aw library in stealth or secrecy over a period of time, that may
involve so many persons, here and abroad, and which
MR. ALBANO. Now, Mr. Speaker, it is also elementary touch so many states and territorial units. For this
in our criminal law that what is alleged in the reason, it would be unreasonable to require the
information must be proven beyond reasonable doubt. prosecution to prove all the overt and criminal acts
If we will prove only one act and find him guilty of the committed by the accused as part of an over-all
other acts enumerated in the information, does that unlawful scheme or conspiracy to amass ill-gotten
not work against the right of the accused especially so wealth as long as all the elements of the crime of
if the amount committed, say, by falsification is less plunder have been proven beyond reasonable doubt,
than P100 million, but the totality of the crime such as, the combination or series of overt or criminal
committed is P100 million since there is malversation, acts committed by a public officer alone or in
bribery, falsification of public document, coercion, connivance with other persons to accumulate ill-gotten
theft? wealth in the amount of at least Fifty Million
Pesos.chanrob1es virtua1 1aw 1ibrary
MR. GARCIA (P). Mr. Speaker, not everything alleged
in the information needs to be proved beyond "The statutory language does not evince an intent to
reasonable doubt. What is required to be proved do away with the constitutional presumption of guilt
nor to lower the quantum of proof needed to establish it is the prerogative of the legislature which is
each and every element or ingredient of the crime of undeniably vested with the authority to determine
plunder." 45 whether certain acts are criminal irrespective of the
actual intent of the perpetrator.
In connection with the foregoing, I emphasize that
there is no basis for petitioners concern that the The Power of the Legislature to Penalize Certain Acts
conspiracy to defraud, which is not punishable under
the Revised Penal Code, may have been criminalized Jurisprudence dating as far back as United States v.
under RA 7080. The Anti-Plunder Law treats conspiracy Siy Cong Bieng 46 has consistently recognized and
as merely a mode of incurring criminal liability, but upheld "the power of the legislature, on grounds of
does not criminalize or penalize it per se. public policy and compelled by necessity, the great
master of things, to forbid in a limited class of cases
In sum, it is clear that petitioner has misunderstood the doing of certain acts, and to make their
the import of Section 4. Apropos the foregoing, I commission criminal without regard to the intent of the
maintain that, between an interpretation that produces doer." Even earlier, in United States v. Go Chico, 47
questionable or absurd results and one that gives life Justice Moreland wrote that the legislature may enact
to the law, the choice for this Court is too obvious to criminal laws that penalize certain acts, like the
require much elucidation or debate. "discharge of a loaded gun," without regard for the
criminal intent of the wrongdoer. In his
Even granting arguendo that Section 4 of the Anti- words:chanrob1es virtua1 1aw 1ibrary
Plunder law suffers from some constitutional infirmity,
the statute may nonetheless survive the challenge of "In the opinion of this Court it is not necessary that the
constitutionality in its entirety. Considering that this appellant should have acted with criminal intent. In
provision pertains only to a rule on evidence or to a many crimes, made such by statutory enactment, the
procedural matter that does not bear upon or form any intention of the person who commits the crime is
part of the elements of the crime of plunder, the Court entirely immaterial. This is necessarily so. If it were
may declare the same unconstitutional and strike it off not, the statute as a deterrent influence would be
the statute without necessarily affecting the essence of substantially worthless. It would be impossible of
the legislative enactment. For even without the execution. In many cases the act complained of is
assailed provision, the law can still stand as a valid itself that which produces the pernicious effect which
penal statute inasmuch as the elements of the crime, the statute seeks to avoid. In those cases the
as well as the penalties therein, may still be clearly pernicious effect is produced with precisely the same
identified or sufficiently derived from the remaining force and result whether the intention of the person
valid portions of the law. This finds greater significance performing the act is good or bad. The case at bar is a
when one considers that Section 7 of the law provides perfect illustration of this. The display of a flag or
for a separability clause declaring the validity, the emblem used, particularly within a recent period, by
independence and the applicability of the other the enemies of the Government tends to incite
remaining provisions, should any other provision of the resistance to governmental functions and insurrection
law be held invalid or unconstitutional. against governmental authority just as effectively if
made in the best of good faith as if made with the
Third Issue:chanrob1es virtual 1aw library most corrupt intent. The display itself, without the
intervention of any other factor, is the evil. It is quite
The Constitutional Power of Congress to Enact Mala different from that large class of crimes, made such by
Prohibita Laws the common law or by statute, in which the injurious
effect upon the public depends upon the corrupt
Petitioner maintains that RA 7080 "eliminated the intention of the person perpetrating the act. If A
element of mens rea from crimes which are mala in se discharges a loaded gun and kills B, the interest which
and converted these crimes which are components of society has in the act depends, not upon Bs death, but
plunder into mala prohibitum, thereby rendering it upon the intention with which A consummated the act.
easier to prove" since, allegedly, "the prosecution need If the gun were discharged intentionally, with the
not prove criminal intent."cralaw virtua1aw library purpose of accomplishing the death of B, then society
has been injured and its security violated; but if the
This asseveration is anchored upon the postulate (a gun was discharged accidentally on the part of A, the
very erroneous one, as already discussed above) that society, strictly speaking, has no concern in the
the Anti-Plunder Law exempts the prosecution from matter, even though the death of B results. The reason
proving beyond reasonable doubt the component acts for this is that A does not become a danger to society
constituting plunder, including the element of criminal and its institutions until he becomes a person with a
intent. It thus concludes that RA 7080 violates the due corrupt mind. The mere discharge of the gun and the
process and the equal protection clauses of the death of B do not of themselves make him so. With
Constitution. those two facts must go the corrupt intent to kill. In
the case at bar, however, the evil to society and to the
While I simply cannot agree that the Anti-Plunder Law Government does not depend upon the state of mind
eliminated mens rea from the component crimes of of the one who displays the banner, but upon the
plunder, my bottom-line position still is: regardless of effect which that display has upon the public mind. In
whether plunder is classified as mala prohibita or in se, the one case the public is affected by the intention of
the actor; in the other by the act itself."cralaw Oral Argument with an admittedly apocryphal account
virtua1aw library of a befuddled student of law who could not make
heads or tails of the meanings of series, combination
Without being facetious, may I say that, unlike the act and pattern.
of discharging a gun, the acts mentioned in Section
1(d) bribery, conversion, fraudulent conveyance, On the other hand, the solicitor general compares
unjust enrichment and the like cannot be committed petitioner with Hans Christian Andersens fabled tailors
sans criminal intent. And thus, I finally arrive at a who tried to fool the emperor into walking around
point of agreement with petitioner: that the acts naked by making him believe that anyone who did not
enumerated in Section 1(d) are by their nature mala in see the invisible garment, which they had supposedly
se, and most of them are in fact defined and penalized sewn for him, was "too stupid and incompetent to
as such by the Revised Penal Code. Having said that, I appreciate its quality." This is no doubt a parody of the
join the view that when we speak of plunder, we are alleged vagueness of RA 7080, which is purportedly
referring essentially to two or more instances of mala "invisible only to anyone who is too dense to
in se constituting one malum prohibitum. Thus, there appreciate its quality." 50
should be no difficulty if each of the predicate acts be
proven beyond reasonable doubt as mala in se, even if I do not begrudge petitioner (or his lawyers) for
the defense of lack of intent be taken away as the exhausting every known and knowable legal tactic to
solicitor general has suggested. exculpate himself from the clutches of the law. Neither
do I blame the solicitor general, as the Republics
In brief, the matter of classification is not really counsel, for belittling the attempt of petitioner to
significant, contrary to what petitioner would have us shortcut his difficult legal dilemmas. However, this
believe. The key, obviously, is whether the same Court has a pressing legal duty to discharge: to render
burden of proof proof beyond reasonable doubt justice though the heavens may fall.
would apply.
By the Courts Decision, petitioner is now given the
Furthermore, I also concur in the opinion of the occasion to face squarely and on the merits the
solicitor general: if it is conceded that the legislature plunder charges hurled at him by the Ombudsman. He
possesses the requisite power and authority to declare, may now use this opportunity to show the courts and
by legal fiat, that acts not inherently criminal in nature the Filipino people that he is indeed innocent of the
are punishable as offenses under special laws, then heinous crime of plunder to do so, not by resorting
with more reason can it punish as offenses under to mere legalisms, but by showing the sheer falsity of
special laws those acts that are already inherently the wrong doings attributed to him.
criminal. "This is so because the greater (power to
punish not inherently criminal acts) includes the lesser I think that, given his repeated claims of innocence,
(power to punish inherently criminal acts). In eo plus petitioner owes that opportunity to himself, his family,
sit, semper inest et minus." 48 and the teeming masses he claims to love. In short,
the Court has rendered its judgment, and the heavens
Epilogue have not fallen. Quite the contrary, petitioner is now
accorded the opportunity to prove his clear conscience
"The constitutionality of laws is presumed. To justify and inculpability.chanrob1es virtua1 1aw 1ibrary
nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful WHEREFORE, I vote to DISMISS the Petition and to
or argumentative implication; a law shall not be uphold the constitutionality of RA 7080.
declared invalid unless the conflict with the
Constitution is clear beyond a reasonable doubt.The YNARES-SANTIAGO, J., dissenting:chanrob1es virtual
presumption is always in favor of constitutionality . . . 1aw library
To doubt is to sustain. . . . ." 49
It is an ancient maxim in law that in times of frenzy
A law should not be overturned on the basis of and excitement, when the desire to do justice is
speculation or conjecture that it is unconstitutionally tarnished by anger and vengeance, there is always the
vague. Everyone is duty-bound to adopt a reasonable danger that vital protections accorded an accused may
interpretation that will uphold a statute, carry out its be taken away.
purpose and render harmonious all its parts. Indeed,
the constitutionality of a statute must be sustained if, The Plunder Law and its amendment were enacted to
as in this case, a ground therefor can possibly be meet a national problem demanding especially
found. For the unbending teaching is that a law cannot immediate and effective attention. By its very nature,
be declared invalid, unless the conflict with the the law deserved or required legislative drafting of the
Constitution is shown to be clearly beyond reasonable highest order of clarity and precision.
doubt.
Substantive due process dictates that there should be
To lend color and vividness to the otherwise boring no arbitrariness, unreasonableness or ambiguity in any
legalese that has been used to dissect RA 7080, the law which deprives a person of his life or liberty. The
parties to this case laced their arguments with trial and other procedures leading to conviction may be
interesting little stories. Thus, petitioner opened his fair and proper. But if the law itself is not reasonable
legislation, due process is violated. Thus, an accused clause, where its language does not convey sufficiently
may not be sentenced to suffer the lethal injection or definite warning to the average person as to the
life imprisonment for an offense understood only after prohibited conduct. A statute is unconstitutionally
judicial construction takes over where Congress left vague if people of common intelligence must
off, and interpretation supplies its meaning. necessarily guess at its meaning. 10

The Constitution guarantees both substantive and It is not only prosecutors and judges who are
procedural due process 1 as well as the right of the concerned. The need for definiteness applies with
accused to be informed of the nature and cause of the greater force to the accused and those in positions
accusation against him. 2 Substantive due process where opportunities for them to commit the proscribed
requires that a criminal statute should not be vague offense are present. They must understand exactly
and uncertain. 3 More explicitly what prohibited activity will be punished by capital
punishment. Sadly, even the record of deliberations in
That the terms of a penal statute. . . must be Congress cited in the motion to quash shows that even
sufficiently explicit to inform those who are subject to the members of the Senate who are illustrious lawyers
it what conduct on their part will render them liable to found the Plunder Law vague.
penalties, is a well-recognized requirement, consonant
alike with ordinary notions of fair play and the settled Under Section 1 of R.A. 7080 and Section 12 of R.A.
rules of law. And a statute which either forbids or 7659, the acquisition of at least P50,000,000.00 of ill-
requires the doing of an act in terms so vague that gotten wealth is punished by reclusion perpetua to
men of common intelligence must necessarily guess at death, if committed as follows:chanrob1es virtual 1aw
its meaning and differ as to its application, violates the library
first essential of due process. 4
1) Through misappropriation, conversion, misuse, or
The doctrine of constitutional uncertainty is also based malversation of public funds or raids on the public
on the right of the accused to be informed of the treasury;
nature and cause of the accusation. 5 Fundamental
fairness dictates that a person cannot be sent to jail 2) By receiving, directly or indirectly, any commission,
for a crime that he cannot with reasonable certainty gift, share, percentage, kickbacks or any other form of
know he was committing. 6 Statutes defining crimes pecuniary benefit from any person and/or entity in
run afoul of the due process clause if they fail to give connection with any government contract or project or
adequate guidance to those who would be law-abiding, by reason of the office or position of the public officer
to advise defendants of the nature of the offense with concerned;
which they are charged or to guide courts trying those
who are accused. 7 In short, laws which create crime 3) By the illegal or fraudulent conveyance or
ought to be so explicit that all men subject to their disposition of assets belonging to the National
penalties may know what acts it is their duty to avoid. Government or any of its subdivisions, agencies or
8 instrumentalities or government-owned or controlled
corporations and their subsidiaries;
A reading of the Plunder Law immediately shows that it
is phrased in a manner not susceptible to ready or 4) By obtaining, receiving or accepting directly or
clear understanding. In the desire to cover under one indirectly any shares of stock, equity or any other form
single offense of plunder every conceivable criminal of interest or participation including the promise of
activity committed by a high government official in the future employment in any business enterprise or
course of his duties. Congress has come out with a law undertaking;
unduly vague, uncertain and broad.
5) By establishing agricultural, industrial or commercial
The doctrines of overbreadth and void-for-vagueness monopolies or other combinations and/or
in Constitutional Law were developed in the context of implementation of decrees and orders intended to
freedom of speech and of the press. However, they benefit particular persons or special interests; or
apply equally, if not more so, to capital offenses. In
the present case, what the law seeks to protect or 6) By taking undue advantage of official position,
regulate involves the deprivation of life itself and not authority, relationship, connection or influence to
merely the regulation of expression. unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people
In its early formulation, the overbreadth doctrine and the Republic of the Philippine. 11
states that a governmental purpose to control or
prevent activities constitutionally subject to regulation The crimes of malversation of public funds and bribery,
may not be achieved by means which sweep which appear to be included among the modes of
unnecessarily broadly and thereby invade the area of committing plunder, have acquired well-defined
protected freedoms. 9 meanings under our present penal statutes. The
accused immediately knows how to defend and justify
A statute, especially one involving criminal his actions. The prosecution understands the quantum
prosecution, must be definite to be valid. A statute is and nature of the evidence he has to produce in court.
vague or overbroad, in violation of the due process The Judge can apply the law with straight and positive
judgment because there is no vagueness about it. converted to mala prohibita. If the guilty intent is
eliminated, even innocent acts can be plunder. The law
The Sandiganbayan, however, has ruled that the was not drafted for petitioner alone. It applies to all
Plunder Law does not make any reference to any public officers.
specific provision of laws other than R.A. 7080, as
amended. It is an entirely new offense where As petitioner has stated, what Congress did in enacting
malversation or bribery become "generic terms" the Plunder Law was to take out the provisions of the
according to the court. And since "generic" refers to an Revised Penal Code on malversation, estafa, bribery,
entire group or class of related matters, the discretion and other crimes committed by public officers, mix
given to the prosecutor and the judge figuratively runs these with special laws on graft and corruption and
riot. together with a couple of non-criminal acts, combine
them into a special law and call it "plunder."cralaw
Under the same paragraph of the Plunder Law, virtua1aw library
malversation is lumped with "misuse of public funds."
Misuse can be as innocuous as error or it can be as Early in the history of this Court, it ruled that in acts
severe as corruption or embezzlement. The terms mala in se, the criminal intent governs. But in those
"abuse," "distortion," "misapplication," acts mala prohibita, the only inquiry is: has the law
"mismanagement," "poor stewardship." "malpractice," been violated? 15 Acts constituting malversation,
"debasement," or "breach of trust," all conceivably fall estafa, and bribery are mala in se. The courts must
under the generic term "misuse." Exactly when does inquire into the criminal intent, the evil nature or
an administrative offense of misuse become the capital wrongful disposition behind the criminal acts. In mala
crime of plunder? What degree of misuse is prohibita crimes, there is a violation of a prohibitory
contemplated under the law? law and the inquiry is, therefore, has the law been
violated?
A penal law violates due process where inherently
vague statutory language permits selective law In the crime of plunder, it is enough that the acts
enforcement. 12 Under the Plunder Law, a crusading defining malversation or bribery are described. The
public officer who steps on too many important toes in court then proceeds to determine whether the acts fall
the course of his campaign could be prosecuted for a under the prohibitory terms of the law. Criminal intent
capital offense, while for exactly the same acts, an no longer has to be proved. The criminal intent to
official who tries to please everybody can be charged commit the crime is not required to be proved. The
whether administratively or for a much lighter offense. desire to benefit particular persons does not have to
spring from criminal intent under the special law
For instance, direct bribery under Article 210 of the creating the crime of plunder. In malversation or
Revised Penal Code is punished with prision mayor in bribery under the Revised Penal Code, the criminal
its medium or minimum periods, prision correccional in intent is an important element of the criminal acts.
its medium period, or prision mayor in its minimum Under the Plunder Law, it is enough that the acts are
period, depending on the manner of commission. 13 committed.
Indirect bribery under Article 211 is punished with
prision correccional in its medium and maximum Thus, even if the accused can prove lack of criminal
periods. 14 Under the Plunder Law, the penalty is intent with respect to crimes mala in se, this will not
reclusion perpetua to death. The void-for-vagueness exonerate him under the crime mala prohibita. This
infirmity becomes all the more apparent if the violates substantive due process and the standards of
proscribed activity is "misuse of public funds." The fair play because mens rea is a constitutional
prosecutor is given broad powers of selective law guarantee under the due process clause. Indeed, as
enforcement. For "misuse," exactly the same acts stated by the U.S. Supreme Court in Morisette v. U.S.
could be punished with death under the Plunder Law, 16
or mere dismissal with prejudice to future government
employment under the Civil Service Law. The Government asks us by a feat of construction
radically to change the weights and balances in the
The provision in the Plunder Law on "implementation scales of justice. The purpose and obvious effect of
of decrees and orders intended to benefit particular doing away with the requirement of a guilty intent is to
persons or special interests" also calls for more specific ease the prosecutions party to conviction, to strip the
elucidation. If the only person benefited is himself, defendant of such benefit as he derived at common
does that fall under "particular person?" Decrees and law from innocence of evil purpose, and to
orders issued by a top government official may be circumscribe the freedom heretofore allowed juries.
intended to benefit certain segments of society such as Such a manifest impairment of the immunities of the
farmers, manufacturers, residents of a geographical individual should not be extended to common law
area and the like. If in the process a close relative crimes on judicial initiative. (Emphasis ours)
acquires P50,000,000.00 because of development in
that sector solely because of the decree and without By grafting several felonies, some mala in se and some
lifting a finger, is that plunder? The vagueness can be mala prohibita, to constitute the crime of plunder and
better appreciated by referring to petitioners by doing away with the standard of proof beyond
arguments that the element of mens rea in mala in se reasonable doubt for the component elements, the
crimes has been abolished and the offenses have been State would practically be given the judicial imprimatur
to impose the extreme penalty of death on the basis of Thus, the acts of misappropriation or malversation
proof only of the overall pattern of overt or criminal may be prosecuted as separate offenses. So may the
acts showing unlawful scheme or conspiracy. This receipt of commissions, gifts, or kickbacks by higher
attempt of Congress to tip the scales of criminal justice officials in connection with government contracts. The
in favor of the state by doing, away with the element four other methods or schemes mentioned in the law
of mens rea and to pave the way for the accused to be may be the objects of separate penal statutes.
convicted by depriving him of the defense of criminal
intent as to mala in se components of plunder will be When the law creates a new crime of plunder through
anathema to substantive due process which insures a combination or series of overt or criminal acts, the
"respect for those personal immunities which are so courts have to supply missing elements if conviction is
rooted in the traditions and conscience of our people to be achieved.
as to be ranked as fundamental." 17
Bribery is punished as plunder under the law only
Equally disagreeable is the provision of the Plunder when there is a combination or series of criminal acts.
Law which does away with the requirement that each But when do certain acts constitute a combination or
and every component of the criminal act of plunder be series? Does the Plunder law provide that two or three
proved and instead limits itself to proving only a acts of one crime of bribery constitute a combination
pattern of overt acts indicative of the unlawful scheme or series which qualify bribery into plunder? Or does
or conspiracy. 18 In effect, the law seeks to penalize bribery have to be conjoined with the separate offense
the accused only on the basis of a proven scheme or of malversation to become a combination? Or with
conspiracy, and does away with the rights of the malversation and fraudulent conveyance or disposition
accused insofar as the component crimes are of public assets or one of the other means or schemes
concerned. In other words, R.A. No. 7080 circumvents before it becomes a series?
the obligation of the prosecution to prove beyond
reasonable doubt every fact necessary to constitute I find it difficult to accept the wide discretion given to
the crime of plunder, because the law requires merely the prosecution by the Plunder Law. An elective official
proof of a pattern of overt acts showing an unlawful who is a political threat may be charged for plunder as
scheme or conspiracy. What aggravates matters on one single offense punishable by death while one in
this point is that under controlling case law, conspiracy the good graces of the powers-that-be is charged only
to defraud is not punishable under the Revised Penal under the Revised Penal Code.
Code. 19 Cutting corners on the burden of proof is
unconstitutional because the standard of reasonable The confusion generated by a vague law is exemplified
doubt is part of the due process safeguard accorded an in the informations filed against petitioner in this case.
accused. The due process clause protects the accused Petitioner was charged with eight crimes, namely: [1]
against conviction except upon proof beyond a plunder; [2] violation of Section 3 (e) of R.A. 3019; [3]
reasonable doubt of every fact necessary to constitute violation of Section 3 (a) of R.A. 3019; [4] another
the crime with which he is charged. 20 violation of Section 3 (e) of R.A. 3019; [5] violation of
Section 3 (c) of R.A. 3019; [6] violation of Section 7
Under R.A. 7659, plunder is a heinous crime (d) of R.A. 6713; [7] perjury; [8] illegal use of alias.
punishable by death. It is described as grievous,
odious and hateful because of its inherent or magnified Only twelve days later, the prosecution withdrew five
wickedness, viciousness, atrocity, and perversity. (5) of the informations which it consolidated into only
There can be no quarrel with the legislative objective one offense of plunder. The prosecution was not clear
of reducing the upsurge of such crimes which affect about the steps to take in instances where the words
sustainable economic development and undermine the "combination" or "series" may or may not apply. It
peoples faith in Government and the latters ability to could not understand the coverage of the law as acts
maintain peace and order. Nevertheless, due process repetitive of the same offense or acts constituting one
commands that even though the governmental crime lumped up with other crimes or both criminal
purpose is legitimate and substantial, that purpose and non-criminal acts punished as one new offense of
cannot be pursued by means so vague and broad that plunder.
they infringe on life or stifle liberty when the end can
be more narrowly achieved through existing penal In the following exchange during the deliberations on
statutes. Senate Bill No. 733, Senators Neptali Gonzales and
Wigberto Taada voiced serious doubts on the
Where the statute has an overbroad sweep just as constitutionality of the definition of plunder,
when it is vague, the hazard of loss or impairment of thus:chanrob1es virtual 1aw library
life or liberty is critical. 21
Senator Gonzales:chanrob1es virtual 1aw library
The problem of vagueness is reduced or eliminated if
the different schemes mentioned in the law as used in To commit the offense of plunder, as defined in this
the acquisition of ill-gotten wealth are prosecuted act, and while constituting a single offense, it must
under existing penal law. The offenses are by their consist of a series of overt or criminal acts, such as
nature distinct and separate from each other and have bribery, extortion, malversation of public funds,
acquired established meanings. swindling, falsification of public documents, coercion,
theft, fraud and illegal exaction and graft or corrupt
practices and like offenses. Now, Mr. President, I think ingredients of the Plunder Law.
this provision, by itself will be vague. I am afraid that
it may be faulted for being violative of the due process The right of an accused to be informed of the nature
clause and the right to be informed of the nature and and cause of the accusation against him is most often
cause of accusation of an accused. Because what is exemplified in the care with which a complaint or
meant by "series of overt or criminal acts?" I mean, information should be drafted. However, the clarity
would 2, 4, or 5 constitute a series? During the period and particularity required of an information should also
of amendments, can we establish a minimum of overt be present in the law upon which the charges are
acts like, for example, robbery in band? The law based. If the penal law is vague, any particularity in
defines what is robbery in band by the number of the information will come from the prosecutor. The
participants therein. In this particular case, probably, prosecution takes over the role of Congress.
we can statutorily provide for the definition of "series"
s o that two, for example, would that already be a The fact that the details of the charges are specified in
series? Or, three, what would be the basis for such the Information will not cure the statute of its
determination? constitutional infirmity. If on its face the challenged
provision is repugnant to the due process clause,
Senator Taada:chanrob1es virtual 1aw library specification of details of the offense intended to be
charged would not serve to validate it. 23 In other
I think, Mr. President, that would be called for, this words, it is the statute, not the accusation under it,
being a penal legislation, we should be very clear as to that prescribes the rule to govern conduct and warns
what it encompasses; otherwise, we may contravene against transgression. No one may be required at peril
the constitutional provision on the right of accused to of life, liberty or property to speculate as to the
due process. (Emphasis ours) 22 meaning of penal statutes. All are entitled to be
informed as to what the State commands or forbids.
The foregoing concerns to statutorily provide for the 24
definition of "series" or "combination" have, however,
not been addressed and the terms were left undefined. Definiteness is a due process requirement. It is
The law, as presently crafted, does not specify whether especially important in its application to penal statutes.
a "series" means two, three, four or even more of the Vagueness and unintelligibility will invariably lead to
overt or criminal acts listed in Section 1 (d) of R.A. arbitrary government action. The purpose of the due
7080. process clause is to exclude everything that is arbitrary
and capricious affecting the rights of the citizen. 25
Even more difficult to accept is when the trial court has Congress, in exercising its power to declare what acts
to supply the missing elements, in effect taking over constitute a crime, must inform the citizen with
corrective or punitive legislation from Congress. The reasonable precision what acts it intends to prohibit so
attempts of the Sandiganbayan in the questioned that he may have a certain understandable rule of
Resolution do not clarify. They instead serve to confuse conduct and know what acts it is his duty to avoid. 26
and increase the ambiguity even more.
The questioned statutes were enacted purportedly in
The Sandiganbayan interprets the words "combination" the interest of justice, public peace and order, and the
and "series" of overt or criminal acts through terms rule of law. These purposes are not served by R.A.
found in American decisions like "pattern," Nos. 7080 and 7659. These statutes allow the
"conspiracy," "over-all unlawful scheme," or" general prosecutors and the courts arbitrary and too broad
plan of action or method."cralaw virtua1aw library discretionary powers in their enforcement. Fair, equal
and impartial justice would be denied.
The above definitions are not found in the Plunder Law.
The use of such phrases as "over-all scheme" or For all the foregoing reasons, I vote to grant the
"general plan" indicates that the Sandiganbayan is petition and nullify the Plunder Law for being
expanding the coverage of the law through the use of unconstitutional.
ambiguous phrases capable of dual or multiple
applications. When do two or three acts of the same PARDO, J., dissenting:chanrob1es virtual 1aw library
offense of malversation constitute a "pattern," "a
general plan of action," or an "over-all scheme?" With due respect, I vote to grant the petition on the
Would one malversation in the first week of a public second ground raised therein, that is, multiplicity of
officers tenure and another similar act six (6) years offenses charged in the amended information. 1
later become a "combination," a "pattern," or a Consequently, the resolution of the Sandiganbayan
"general plan of action?" must be set aside, and the case remanded to the
Ombudsman for the amendment of the information to
I agree with petitioners concern over the danger that charge only a single offense.
the trial court may allow the specifications of details in
an information to validate a statute inherently void for In my view, it is unnecessary to rule on the
vagueness. An information cannot rise higher than the unconstitutionality of the entire law, 2 R. A. No. 7080,
statute upon which it is based. Not even the as amended by R. A. No. 7659, although I share the
construction by the Sandiganbayan of a vague or opinion of the dissenting justices in the case of People
ambiguous provision can supply the missing v. Echegaray, 3 that the heinous crime law is
unconstitutional. Hence, the amendments to the against conviction except upon proof beyond
plunder law prescribing the death penalty therefor are reasonable doubt of every fact necessary to constitute
unconstitutional. I am of the view that the plunder law the crime with which he is charged. The reason for this
penalizes acts that are mala in se, and consequently, was enunciated in In Re Winship: 4" [t]he accused
the charges must be the specific acts alleged to be in during a criminal prosecution has at stake interest of
violation of the law, committed with malice and immense importance, both because of the possibility
criminal intent. At any rate, I venture the view that that he may lose his liberty (or life) upon conviction
Section 4, R. A. No. 7080, must be interpreted as and because of the certainty that he would be
requiring proof beyond reasonable doubt of all the stigmatized by the conviction." In view thereof, any
elements of plunder as prescribed in the law, including attempt on the part of the legislature to diminish the
the elements of the component crimes, otherwise, the requirement of proof in criminal cases should be
section will be unconstitutional. discouraged.

SANDOVAL-GUTIERREZ, J., dissenting:chanrob1es I.


virtual 1aw library

At times when speaking against popular views can R.A. No. 7080, as amended, is unconstitutional. Albeit
subject a member of this Court to all sorts of unfair the legislature did not directly lower the degree of
criticism and pressure from the media, the lure not to proof required in the crime of plunder from proof
wield the judicial pen is at its crest. Nevertheless, I beyond reasonable doubt to mere preponderance of or
cannot relent to such enticement. Silence under such substantial evidence, it nevertheless lessened the
circumstances may mean not only weakness, but also burden of the prosecution by dispensing with proof of
insensibility to the legal consequence of a the essential elements of plunder. Let me quote the
constitutional adjudication bound to affect not only the offending provision:chanrob1es virtual 1aw library
litigants, but the citizenry as well. Indeed, the core
issue in this case is highly significant, the resolution of SEC. 4. Rule of Evidence. For purposes of
which is inevitably historical. Thus, today, I prefer to establishing the crime of plunder, it shall not be
take a stand and, therefore, dissent from the majority necessary to prove each and every criminal act done
opinion. by the accused in furtherance of the scheme or
conspiracy to amass, accumulate, or acquire ill-gotten
It is beyond dispute that Republic Act No. 7080 (R.A. wealth, it being sufficient to establish beyond
No. 7080), 1 entitled "An Act Penalizing the Crime of reasonable doubt a pattern of overt or criminal acts
Plunder," is controversial and far-reaching. indicative of the overall unlawful scheme or conspiracy.
Nonetheless, it is my view that it is also vague and
fuzzy, inexact and sweeping. This brings us to the In every criminal prosecution, the law recognizes
query may R.A. No. 7080 be enforced as valid and certain elements as material or essential. Calling a
its shortcomings supplied by judicial interpretation? My particular fact an "essential element" carries certain
answer, to be explained later, is "NO."cralaw virtua1aw legal consequences. In this case, the consequence that
library matters is that the Sandiganbayan cannot convict the
accused unless it unanimously 5 finds that the
As a basic premise, we have to accept that even a prosecution has proved beyond reasonable doubt each
person accused of a crime possesses inviolable rights element of the crime of plunder.
founded on the Constitution which even the welfare of
the society as a whole cannot override. The rights What factual elements must be proved beyond
guaranteed to him by the Constitution are not subject reasonable doubt to constitute the crime of plunder?
to political bargaining or to the calculus of social
interest. Thus, no matter how socially-relevant the Ordinarily, the factual elements that make up a crime
purpose of a law is, it must be nullified if it tramples are specified in the law that defines it. Under R.A. No
upon the basic rights of the accused. 7080, as amended, the essential elements of the crime
of plunder are: a) that the offender is a public officer;
Enshrined in our Constitution is the ultimate guaranty b) that he amasses, accumulates or acquires ill-gotten
that "no person shall be deprived of life, liberty, or wealth through a combination or series of overt or
property without due process of law." 2 This provision criminal acts described in Section 1 (d), to
in the Bill of Rights serves as a protection of the wit:chanrob1es virtual 1aw library
Filipino people against any form of arbitrariness on the
part of the government, whether committed by the 1) Through misappropriation, conversion, misuse, or
legislature, the executive or the judiciary. Any malversation of public funds or raids on the public
government act that militates against the ordinary treasury;
norms of justice and fair play is considered an
infraction of the due process; and this is true whether 2) By receiving, directly or indirectly, any commission,
the denial involves violation merely of the procedure gift, share, percentage, kickbacks, or any other form of
prescribed by law or affects the very validity of the law pecuniary benefit from any person and/or entity in
itself. 3 connection with any government contract or project or
by reason of the office or position of the public officer
The same Due Process Clause protects an accused concerned;
to agree unanimously on which two.
3) By the illegal or fraudulent conveyance or
disposition of assets belonging to the National Let us consider the present case against former
Government or any of its subdivision, agencies or President Joseph Ejercito Estrada. The accusatory
instrumentalities or government-owned or controlled portion of the information in Criminal Case No. 26558
corporations and their subsidiaries; charges Mr. Estrada and others of willfully, unlawfully
and criminally amassing, accumulating and acquiring
4) By obtaining, receiving or accepting directly, or ill-gotten wealth in the aggregate amount of
indirectly any shares of stock, equity or any other form P4,097,804,173.17 more or less, through a
of interest or participation including the promise of combination and series of overt and criminal acts
future employment in any business enterprise or described as follows:jgc:chanrobles.com.ph
undertaking;
"a) by receiving, collecting, directly or indirectly, on
5) By establishing agricultural, industrial or commercial many instances, so called "jueteng money" from
monopolies or other combinations and/or gambling operators in connivance with co-accused Jose
implementation of decrees and orders intended to "Jinggoy" Estrada, Yolanda Ricaforte and Edward
benefit particular person or special interests; or Serapio, as witnessed by Gov. Luis Chavit Singson,
among other witnesses, in the aggregate amount of
6) By taking undue advantage of official position, FIVE HUNDRED FORTY-FIVE MILLION PESOS
authority, relationship, connection, or influence to (P545,000,000.00), more or less, in consideration of
unjustly enrich himself or themselves at the expense their protection from arrest or interference by law
and to the damage and prejudice of the Filipino people enforcers in their illegal "jueteng" activities; and
and the Republic of the Philippines.
b) by misappropriating, converting and misusing his
and c) that the aggregate amount or total value of the gain and benefit public fund in the amount of ONE
ill-gotten wealth is at least Fifty Million Pesos HUNDRED THIRTY MILLION PESOS (P130,000,000.00),
(P50,000,000.00). 6 more or less, representing a portion of the One
Hundred Seventy Million Pesos (P170,000,000.00)
Does the phrase "combination or series of overt or tobacco excise tax share allocated for the Province of
criminal acts described in Section 1 (d)" mean that the Ilocos Sur under R.A. No. 7171, in conspiracy with co-
"criminal acts" merely constitute the means to commit accused Charlie "Atong" Ang, Alma Alfaro, Eleuterio
plunder? Or does it mean that those "criminal acts," Tan a.k.a Eleuterio Ramos Tan or Mr. Uy., and Jane
are essential elements of plunder? Doe a.k.a Delia Rajas as witnesses by Gov. Luis
"Chavit" Singson, among other witnesses; and
When Section 4 of R.A. No. 7080 mandates that it shall
not be necessary for the prosecution to prove each and c) by directing, ordering and compelling the
every criminal act done by the accused, the legislature, Government Service Insurance System (GSIS) and the
in effect, rendered the enumerated "criminal acts" Social Security System (SSS) to purchase and buy a
under Section 1 (d) merely as means and not as combined total of P681,733,000. shares of stock of
essential elements of plunder. This is constitutionally Belle Corporation in the aggregate value of One Billion
infirmed and repugnant to the basic idea of justice and Eight Hundred Forty Seven Pesos and Fifty Centavos
fair play. 7 As a matter of due process, the prosecution (P1,847,578,057.50), for the purpose of collecting for
is required to prove beyond reasonable doubt every his personal gain and benefit, as in fact he did collect
fact necessary to constitute the crime with which the and receive the sum of ONE HUNDRED EIGHTY NINE
defendant is charged. The State may not specify a MILLION SEVEN HUNDRED THOUSAND PESOS
lesser burden of proof for an element of a crime. 8 (P189,700,000.00), as commission from said stock
With more reason, it should not be allowed to go purchase; and
around the principle by characterizing an essential
element of plunder merely as a "means" of committing d) by unjustly enriching himself in the amount of
the crime. For the result is the reduction of the burden THREE BILLION TWO HUNDRED THIRTY THREE
of the prosecution to prove the guilt of the accused MILLION ONE HUNDRED FOUR THOUSAND ONE
beyond reasonable doubt. HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P3,233,104,173.17) comprising his
Let me elucidate on the vices that come with Section unexplained wealth, acquired, accumulated and
4. amassed by him under his account name "Jose
Velarde" with Equitable PCI Bank."cralaw virtua1aw
First, treating the specific "criminal acts" merely as library
means to commit the greater crime of plunder, in
effect, allows the imposition of the death penalty even Since it is not necessary to prove each criminal act,
if the Justices of the Sandiganbayan did not the inevitable conclusion is that Mr. Estrada may be
"unanimously" find that the accused are guilty beyond convicted of the crime of plunder without the Justices
reasonable doubt of those "criminal acts." The three of the Sandiganbayan "unanimously" deciding which
Justices need only agree that the accused committed two of the four criminal acts have actually been
at least two of the criminal acts, even if not proved by committed. In short, all that R.A. No. 7080 requires is
evidence beyond reasonable doubt. They do not have that each Justice must be convinced of the existence of
a "combination or series." As to which criminal acts of proof to such a degree not commensurate to what
constitute a combination or series, the Justices need the accused stands to suffer. If a person will lose his
not be in full agreement. Surely, this would cover-up a life, justice requires that every fact on which his guilt
wide disagreement among them about just what the may be inferred must be proved beyond reasonable
accused actually did or did not do. Stated differently, doubt.
even if the Justices are not unified in their
determination on what criminal acts were actually Providing a rule of evidence which does not require
committed by the accused, which need not be proved proof beyond reasonable doubt to establish every fact
under the law, still, they could convict him of plunder. necessary to constitute the crime is a clear
infringement of due process. While the principles of the
Considering that what R.A. No. 7080 punishes is the law of evidence are the same whether applied on civil
plurality of criminal acts indicative of the grand scheme or criminal trials, they are more strictly observed in
or conspiracy to amass ill-gotten wealth, it is criminal cases. 12 Thus, while the legislature of a state
imperative to focus upon the individual "criminal acts" has the power to prescribe new or alter existing rules
in order to assure the guilt of the accused of plunder. of evidence, or to prescribe methods of proof, the
same must not violate constitutional requirements or
Second, R.A. No. 7080 lumps up into one new offense deprive any person of his constitutional rights. 13
of plunder six (6) distinct crimes which by themselves Unfortunately, under R.A. No. 7080, the State did not
are currently punishable under separate statutes or only specify a lesser burden of proof to sustain an
provisions of law. The six (6) separate crimes become element of the crime; it even dispensed with proof by
mere "means or similar schemes" to commit the single not considering the specific "criminal acts" as essential
offense of plunder. It bears emphasis that each of the elements. That it was the clear intention of the
separate offenses is a crime mala in se. The legislature is evident from the Senate deliberation,
commission of any offense mala in se is inherently thus:jgc:chanrobles.com.ph
accompanied by a guilty mind or a criminal intent. 9
Unfortunately, R.A. No. 7080 converted the six mala in "Senator Guingona. Since it is a series or a scheme,
se offenses into one crime which is mala prohibita what amount of evidence will, therefore, be required?
wherein the intent becomes insignificant. Upon the Must there be a pattern of the criminal acts? Must
commission of the proscribed act, without proof of there be a series of briberies, for example? Or, can
intent, the law is considered violated. 10 there be only one?
Consequently, even acts recklessly committed (i.e.
without intent) can be punished by death. Senator Taada. Under Section 4 of the bill, Mr.
President, it is provided that:jgc:chanrobles.com.ph
Third, Section 4 mandates that it shall not be
necessary for the prosecution to prove each and every "For purposes of establishing the OFFENSE, of plunder,
criminal act done by the accused . . . it being sufficient it shall not be necessary to prove each and every
to prove beyond reasonable doubt a pattern of overt or criminal act done by the accused in furtherance of the
criminal acts. By its own terminology, Section 4 scheme or conspiracy to amass, accumulate, or
requires that the "pattern" be proved by evidence acquire ill-gotten wealth. . . But, there must be enough
beyond reasonable doubt. Initially, we must evidence "sufficient to establish beyond reasonable
disassociate the specific "criminal acts" from the doubt a pattern of overt or criminal acts of the overall
"pattern of criminal acts." These two phrases do not unlawful scheme or conspiracy."cralaw virtua1aw
refer to one and the same thing. Pattern, as defined in library
the dictionary, means an established mode of
behavior. 11 In the crime of plunder, the existence of So, that is the quantum of evidence that would be
a "pattern" can only be inferred from the specific required under this proposal measure.
"criminal acts" done by the accused. Several queries
may be raised to determine the existence of a Senator Guingona. That is sufficient to establish the
"pattern." Are these criminal acts related or tied to one prima facie case. 14
another? Is the subsequent criminal act a mere
continuation of the prior criminal act? Do these x x x
criminal acts complement one another as to bring
about a single result? Inevitably, one must focus first
on each criminal act to ascertain the relationship or Senator Romulo. That, perhaps, is a good provision of
connection it bears with the other criminal acts, and the bill. But, may I ask, Mr. President, what is in this
from there determine whether a certain "pattern" bill that would insure that there would be a speedier
exists. But how could "pattern" be proved beyond process by which this crime of plunder would readily
reasonable doubt when in the first place the specific and immediately processed and convicted or acquitted
"criminal acts" from which such pattern may be than is now existing in present laws?
inferred are not even required to be proved?
Senator Taada. Yes, . . .
And fourth, plunder is a very serious offense. What is
at stake under the law is not only the liberty of the Now, on the second point, Mr. President, I believe that
accused but his life and property as well. Thus, it will what could make faster and speedier prosecutions of
be extremely unjust to lessen the prosecutions burden these grafters would be a change that will be
authorized in this bill, at least, in the filing of succeeding criminal acts should be committed. These
information against the perpetrators. Under the failures render the law void for its vagueness and
existing criminal procedure, as I said earlier, there can broadness.
only be one offense charged per information. So, if
there is going to be a series of overt or criminal acts Indeed, Congress left much to be desired. I am at a
committed by the grafter, then that would necessitate quandary on how many delictual acts are necessary to
the filing of so many informations against him. Now, if give rise to a "pattern of overt or criminal acts" in the
this bill becomes a law, then that means that there can crime of plunder. If there is no numerical standard,
be only one information filed against the alleged then, how should the existence of "pattern" be
grafter. And the evidence that will be required to ascertained? Should it be by proximity of time or of
convict him would not be evidence for each and every relationship? May an act committed two decades after
individual criminal act but only evidence sufficient to the prior criminal act be linked with the latter for the
establish the conspiracy or scheme to commit this purpose of establishing a pattern?
crime of plunder. 15
It must be remembered that plunder, being a
x x x continuous offense, the "pattern of overt or criminal
acts" can extend indefinitely, i.e., as long as the
succeeding criminal acts may be linked to the initial
Senator Guingona. May I just be clarified Mr. criminal act. This will expose the person concerned to
President. In this Section 4, a pattern of the criminal criminal prosecution ad infinitum. Surely, it will
acts is all that is required. Would this pattern of undermine the purpose of the statute of limitations,
criminal acts be also sufficient to establish a prima i.e., to discourage prosecution based on facts obscured
facie case? by the passage of time, and to encourage law
enforcement officials to investigate suspected criminal
Senator Taada. Mr. President, under Section 4, it activity promptly. 19 All these undesirable
would not only be sufficient to establish a prima facie consequences arise from the fact that the plunder law
case. It would be sufficient to establish guilt as long as fails to provide a period within which the next criminal
the evidence, necessary to establish guilt beyond act must be committed for the purpose of establishing
reasonable doubt is presented." 16 a pattern. I believe R.A. No. 7080 should have
provided a cut-off period after which a succeeding act
In dispensing with proof of each criminal act, the clear may no longer be attached to the prior act for the
objective of Congress is to render it less difficult for purpose of establishing a pattern. In reiteration, the
the prosecution to prove the crime of plunder. While RICO law defines "pattern" as requiring at least two
this presupposes a noble intention, I do not think there acts of racketeering activity . . the last of which
is a sufficient justification. I, too, have the strong occurred within ten years. . . after the commission of
desire to eliminate the sickness of corruption the prior act of racketeering activity. Such limitation
pervading in the Philippine government, but more than prevents a subsequent racketeering activity, separated
anything else, I believe there are certain principles by more than a decade from the prior act of
which must be maintained if we want to preserve racketeering, from being appended to the latter for the
fairness in our criminal justice system. If the purpose of coming up with a pattern. We do not have
prosecution is not mandated to prove the specific the same safeguard under our law.
"criminal acts," then how can it establish the existence
of the requisite "combination or series" by proof Significantly, in Sedima, S.P.R.L v. Imrex Co., 20 the
beyond reasonable doubt? United States Supreme Court expressed dismay that
Congress has failed to properly define the term
II. "pattern" at all but has simply required that a "pattern"
includes at least two acts of racketeering activity. The
Court concluded that "pattern" involves something
Another valid constitutional objection to R.A. No. 7080 more than two acts, and after examining RICOs
is the vagueness of the term "pattern." As stated by legislative history, settled on "continuity plus
Mr. Justice Kapunan, in his Dissent, the concept of relationship" as the additional requirement.
"pattern of overt or criminal acts" embodied in the law
was derived by Congress from the RICO (Racketeer Years later, in H.C. Inc. v. The Northwestern Bell Tel.,
Influenced and Corrupt Organizations) statute. 17 I 21 the U.S. Supreme Court conceded that "the
am, therefore, constrained to refer to US law and continuity plus relationship" means different things to
jurisprudence. "Pattern" as defined in the RICO statute different circuits. Nevertheless, it held firm to the
means "as requiring at least two acts of racketeering Sedima requirement that "in order to establish a
activity . . . . the last of which occurred within ten pattern, the government has to show "that the
years . . . . after the commission of the prior act of racketeering predicates are related, and that they
racketeering activity. 18 amount to or pose a threat of continued criminal
activity." Justice Scalia, in a concurring opinion in
Mr. Justice Kapunan observed that unlike the RICO which three other justices joined, derided the
law, the law on plunder does not specify a) the number "relationship" requirement as not "much more helpful
of criminal acts necessary before there could be a [to the lower courts] than telling them to look for a
"pattern," as well as b) the period within which the "pattern" which is what the statute already says." As
for the continuity requirement, Justice Scalia said: R.A. No. 7080 failed to satisfy the requirement of the
"Todays opinion has added nothing to improve our Constitution on clarity and definiteness." The
prior guidance, which has created a kaleidoscope of deliberations of our law-makers, as quoted verbatim in
circuit positions, except to clarify that RICO may in Justice Kapunans Dissent, indeed, failed to shed light
addition be violated when there is a threat of on what constitute "combination" and "series." 30
continuity. It seems to me this increases rather than
removes the vagueness. There is no reason to believe I believe this is fatal.
that the Court of Appeals will be any more unified in
the future, than they have in the past, regarding the The essence of the law on plunder lies in the phrase
content of this law."cralaw virtua1aw library "combination or series of overt or criminal acts." As
can be gleaned from the Record of the Senate, the
Aware of the ambiguities present in the RICO law the determining factor of R.A. 7080 is the plurality of the
drafters of the New York "Organized Crime Control Act" overt acts or criminal acts under a grand scheme or
(a progeny of RICO) now more specifically define conspiracy to amass ill-gotten wealth. Thus, even if the
"pattern of criminal activity" as conduct engaged in by amassed wealth equals or exceeds fifty million pesos, a
persons charged in an enterprise corruption count person cannot be prosecuted for the crime of plunder if
constituting three or more criminal acts that (a) were there is only a single criminal act. 31
committed within ten years from the commencement
of the criminal action; (b) are neither isolated Considering that without plurality of overt or criminal
incidents, nor so closely related and connected in point acts, there can be no crime of plunder, due process of
of time or circumstance of commission as to constitute law demands that the terms "combination" and
a criminal offense or criminal transaction, as those "series" be defined with exactitude in the law itself.
terms are defined in section 40.10 of the criminal Equating these terms with mere "plurality" or "two or
procedure law; and (c) are either: (i) related to one more," is inaccurate and speculative. For one, a
another through a common scheme or plan or (ii) were "series" is a group of usually three or more things or
committed, solicited, requested, importuned or events standing or succeeding in order and having like
intentionally aided by persons acting with the mental relationship to each other. 32 The Special Prosecution
culpability required for the commission thereof and Division Panel defines it as "at least three of the acts
associated with or in the criminal enterprise. 22 enumerated under Section 1(d) thereof." 33 But it can
very well be interpreted as only one act repeated at
If the term "pattern" as defined in the RICO law is least three times. And the Office of the Solicitor
continuously subjected to constitutional attacks General, invoking the deliberations of the House of
because of its alleged vagueness, how much more the Representatives, contends differently. It defines the
term "pattern" in R.A. No. 7080 which does not carry term series as a "repetition" or pertaining to "two or
with it any limiting definition and can only be read in more." 34 The disparity in the Prosecution and OSGs
context. Indeed, there is no doubt that the invalidity of positions clearly shows how imprecise the term
the law based on vagueness is not merely debatable "series" is.
it is manifest. Thus, this Court should declare R.A. No.
7080 unconstitutional. This should not be countenanced. Crimes are not to be
created by inference. 35 No one may be required, at
III. the peril of life, liberty or property to guess at, or
speculate as to, the meaning of a penal statute. 36 An
accused, regardless of who he is, is entitled to be tried
Lastly, the terms "combination" and "series" are only under a clear and valid law.
likewise vague. Hence, on the basis of the law, a
conviction of an accused cannot be sustained. A Respondents argue that the vagueness of R.A. No.
statute that does not provide adequate standards for 7080, as amended, is cured when the Information
adjudication, by which guilt or innocence may be clearly specified the acts constituting the crime of
determined, should be struck down. 23 Crimes must plunder. I do not agree. It is the statute and not the
be defined in a statute with appropriate certainty and accusation under it that prescribes the rule to govern
definiteness. 24 The standards of certainty in a statute conduct and warns against aggression. 37 If on its
prescribing punishment for offenses are higher than in face, a statute is repugnant to the due process clause
those depending primarily on civil sanctions for their on account of vagueness, specification in the
enforcement. 25 A penal statute should therefore be Information of the details of the offense intended to be
clear and unambiguous. 26 It should explicitly charged will not serve to validate it. 38
establish the elements of the crime which it creates 27
and provide some reasonably ascertainable standards On the argument that this Court may clarify the vague
of guilt. 28 It should not admit of such a double terms or explain the limits of the overbroad provisions
meaning that a citizen may act on one conception of its of R.A. No. 7080, I should emphasize that this Court
requirements and the courts on another. 29 has no power to legislate.

I agree with the observation of Mr. Justice Kapunan Precision must be the characteristic of penal
that "resort to the dictionary meaning of the terms legislation. For the Court to define what is a crime is to
combination and series as well as recourse to the go beyond the so-called positive role in the protection
deliberations of the lawmakers only serve to prove that of civil liberties or promotion of public interests. As
stated by Justice Frankfurter, the Court should be wary [G.R. NO. 160211 : August 28, 2006]
of judicial attempts to impose justice on the
community; to deprive it of the wisdom that comes VENANCIO R. NAVA, Petitioner, v. The Honorable
from self-inflicted wounds and the strengths that grow Justices RODOLFO G. PALATTAO, GREGORY S.
with the burden of responsibility. 39 ONG, and MA. CRISTINA G. CORTEZ-ESTRADA as
Members of the Sandiganbayan's Fourth Division,
A statute which is so vague as to permit the infliction and the PEOPLE OF THE
of capital punishment on acts already punished with PHILIPPINES, Respondents.
lesser penalties by clearly formulated law is
unconstitutional. The vagueness cannot be cured by
DECISION
judicial construction.

Also, not to be glossed over is the fact that R.A. 7080, PANGANIBAN, C.J.:
as amended, is a novel law. Hence, there is greater
need for precision of terms. The requirement that law A meticulous review of the records and the evidence
creating a crime must be sufficiently explicit to inform establishes the guilt of the accused beyond reasonable
those subject to it, what conduct on their part will doubt. Clearly, the prosecution was able to prove all
render them liable to its penalties, has particular force the elements of the crime charged. Hence, the
when applied to statutes creating new offenses. For conviction of petitioner is inevitable.
that reason, those statutes may not be generally
understood, or may be subject of generally accepted The Case
construction. 40

Today, I recall what James Madison remarked in Before us is a Petition for Certiorari 1 under Rule 65 of
presenting the Bill of Rights to the United States the Rules of Court, assailing the June 2, 2003
Congress in 1789: "if they (Bill of Rights) are Decision 2 and September 29, 2003 Resolution of the
incorporated into the Constitution, independent Sandiganbayan in Criminal Case No. 23627. The
tribunals of justice will consider themselves in a dispositive portion of the challenged Decision reads:
peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every "WHEREFORE, premises considered, judgment is
assumption of power in the legislative or executive; hereby rendered convicting accused VENANCIO NAVA Y
and they will be naturally led to resist every RODRIGUEZ of the crime of violation of the Anti-Graft
encroachment upon rights expressly stipulated for in and Corrupt Practices Act particularly Section 3(g)
the Constitution by the declaration of rights." 41 Time thereof, or entering on behalf of government in any
did not render his foreboding stale. Indeed, in every contract or transaction manifestly and grossly
constitutional democracy, the judiciary has become the disadvantageous to the same whether or not the pubic
vanguard of these rights. Now, it behooves this Court officer profited or will profit thereby. In the absence of
to strike an unconstitutional law. The result, I concede, any aggravating or mitigating circumstances, applying
may not be politically desirable and acceptable, the Indeterminate Sentence Law, accused is hereby
nevertheless, I am fully convinced that it is sentenced to suffer the penalty of imprisonment of six
constitutionally correct. (6) years, and one (1) day as minimum to twelve (12)
years and one (1) day as maximum and to suffer
To recapitulate, R.A No. 7080 is unconstitutional perpetual disqualification from public office. Accused
because it violates the DUE PROCESS CLAUSE of the Nava is further ordered to pay the government the
Constitution. The vagueness of its terms and its amount of P380,013.60 which it suffered by way of
incorporation of a rule of evidence that reduces the damages because of the unlawful act or omission
burden of the prosecution in proving the crime of committed by the herein accused Venancio Nava.
plunder tramples upon the basic constitutional rights of
the accused. "From the narration of facts, there hardly appears any
circumstance that would suggest the existence of
In fine, I can only stress that the one on trial here is conspiracy among the other accused in the commission
not Mr. Estrada, but R.A. No. 7080. The issue before of the crime.
this Court is not the guilt or innocence of the accused,
but the constitutionality of the law. I vote to grant the
"Thus in the absence of conspiracy in the commission
petition, not because I favor Mr. Estrada, but because
of the crime complained of and as the herein other
I look beyond today and I see that this law can pose a
accused only acted upon the orders of accused
serious threat to the life, liberty and property of
Venancio Nava, in the absence of any criminal intent
anyone who may come under its unconstitutional
on their part to violate the law, the acts of the
provisions. As a member of this Court, my duty is to
remaining accused are not considered corrupt practices
see to it that the law conforms to the Constitution and
committed in the performance of their duties as public
no other. I simply cannot, in good conscience, fortify a
officers and consequently, accused AJATIL JAIRAL Y
law that is patently unconstitutional.
PONGCA, ROSALINDA MERKA Y GUANZON & JOSEPH
VENTURA Y ABAD are hereby considered innocent of
WHEREFORE, I vote to grant the petition.
the crime charged and are hereby acquitted." 3
The assailed Resolution dated September 29, 2003, The Commission on Audit (COA) Report recommended
denied reconsideration. the filing of criminal and administrative charges
against the persons liable, including petitioner, before
The Facts the Office of the Ombudsman-Mindanao.

The Sandiganbayan narrated the facts of this case as Petitioner was subsequently charged in an
follows: Information 5 filed on April 8, 1997, worded as follows:

"The complaint involving the herein accused was "That on or about the period between November to
initiated by the COA, Region XI, Davao City, which December 1990, and for sometime prior or subsequent
resulted from an audit conducted by a team which was thereto, in Digos, Davao Del Sur and/or Davao City,
created by the COA Regional Office per COA Regional Philippines and within the jurisdiction of this Honorable
Assignment Order No. 91-74 dated January 8, 1991. Court, the accused Venancio R. Nava (DECS-Region XI
The objective of the team [was] to conduct an audit of Director) and Ajatil Jairal (Division Superintendent,
the 9.36 million allotment which was released in 1990 DECS, Davao del Sur), both high[-]ranking officials
by the DECS, Region XI to its Division Offices. and Rosalinda Merka, and Teodora Indin
(Administrative Officer and Assistant Division
Superintendent, respectively of DECS-Division of
"In the Audit Report, the amount of P603,265.00 was
Davao Del Sur), all low ranking officials, while in the
shown to have been released to the DECS Division of
discharge of their respective official functions,
Davao del Sur for distribution to the newly nationalized
committing the offense in relation to their office and
high schools located within the region. Through the
with grave abuse [of] authority, conniving and
initiative of accused Venancio Nava, a meeting was
confederating with one another, did then and there
called among his seven (7) schools division
willfully, unlawfully and feloniously enter, on behalf of
superintendents whom he persuaded to use the money
the government, into transactions with D Implacable
or allotment for the purchase of Science Laboratory
Enterprise and Joven's Trading, respectively,
Tools and Devices (SLTD). In other words, instead of
represented by accused Antonio S. Tan and Evelyn
referring the allotment to the one hundred fifty-five
Miranda and Joseph Ventura for the purchase of
(155) heads of the nationalized high schools for the
Science Laboratory Tools and Devices (SLTD) intended
improvement of their facilities, accused Nava
for use by the public high schools in the area
succeeded in persuading his seven (7) schools division
amounting to [P603,265.00], Philippine currency,
superintendents to use the allotment for the purchase
without the requisite public bidding and in violation of
of science education facilities for the calendar year
DECS Order No. 100, Series of 1990, which transaction
1990.
involved an overprice in the amount of P380,013.60
and thus, is manifestly and grossly disadvantageous to
"In the purchase of the school materials, the law the government." 6
provides that the same shall be done through a public
bidding pursuant to Circular No. 85-55, series of 1985.
Special Prosecution Officer II Evelyn T. Lucero-Agcaoili
But in the instant case, evidence shows that accused
recommended the dismissal of the foregoing
Nava persuaded his seven (7) schools division
Information on the ground, among others, that there
superintendents to ignore the circular as allegedly time
was no probable cause. She argued that only
was of the essence in making the purchases and if not
estimates were made to show the discrepancy of prices
done before the calendar year 1990, the funds allotted
instead of a comparative listing on an item to item
will revert back to the general fund.
basis.7 The recommendation was disapproved,
however, by then Ombudsman Aniano A. Desierto.
"In the hurried purchase of SLTD's, the provision on
the conduct of a public bidding was not followed.
Ruling of the Sandiganbayan
Instead the purchase was done through negotiation.
Evidence shows that the items were purchased from
Joven's Trading, a business establishment with After due trial, only petitioner was convicted, while all
principal address at Tayug, Pangasinan; D' the other accused were acquitted.8
[I]mplacable Enterprise with principal business address
at 115 West Capitol Drive, Pasig, Metro Manila and Petitioner was found guilty of violating Section 3(g) of
from Evelyn Miranda of 1242 Oroqueta Street, Sta. the Anti-Graft and Corrupt Practices Act, or entering on
Cruz, Manila. As disclosed by the audit report, the behalf of the government any contract or transaction
prices of the [SLTDs] as purchased from the above- manifestly and grossly disadvantageous to the latter,
named sellers exceeded the prevailing market price whether or not the public officer profited or would
ranging from 56% to 1,175% based on the profit thereby.
mathematical computation done by the COA audit
team. The report concluded that the government The Sandiganbayan (SBN) said that, in the purchase of
lost P380,013.60. That the injury to the government as the Science Laboratory Tools and Devices (SLTDs),
quantified was the result of the non-observance by the petitioner had not conducted a public bidding in
accused of the COA rules on public bidding and DECS accordance with COA Circular No. 85-55A. As a result,
Order No. 100 suspending the purchases of [SLTDs]." 4 the prices of the SLTDs, as purchased, exceeded the
prevailing market price from 56 percent to 1,175 "II. Whether the public respondent committed grave
percent, based on the mathematical computations of abuse of discretion amounting to a lack of or excess of
the COA team.9 In his defense, petitioner had argued jurisdiction in upholding the findings in the special
that the said COA Circular was merely directory, not audit report where the Special Audit Team egregiously
mandatory. Further, the purchases in question had failed to comply with the minimum standards set by
been done in the interest of public service.10 the Supreme Court and adopted by the Commission on
Audit in violation of petitioner's right to due process,
The Sandiganbayan did not give credence to the and which report suppressed evidence favorable to the
foregoing defenses raised by petitioner. On the petitioner.
contrary, it found the evidence adduced by petitioner's
co-accused, Superintendent Ajatil Jairal, to be "III. Whether the public respondent committed grave
"enlightening," manifesting an intricate web of deceit abuse of discretion amounting to a lack of or excess of
spun by petitioner and involving all the other jurisdiction in upholding the findings in the Special
superintendents in the process.11 Audit Report considering that none of the allegedly
overpriced items were canvassed or purchased by the
The graft court did not accept the claim of petitioner Special Audit Team such that there is no competent
that he signed the checks only after the other evidence from which to determine that there was an
signatories had already signed them. The evidence overprice and that the transaction was manifestly and
showed that blank Philippine National Bank (PNB) grossly disadvantageous to the government.
checks had been received by Nila E. Chavez, a clerk in
the regional office, for petitioner's signature. The "IV. Whether the public respondent committed grave
Sandiganbayan opined that the evidence amply abuse of discretion amounting to a lack of or excess of
supported Jairal's testimony that the questioned jurisdiction in finding that there was an overprice
transactions had emanated from the regional office, as where none of the prices of the questioned items
in fact, all the documents pertinent to the transaction exceeded the amount set by the Department of Budget
had already been prepared and signed by petitioner and Management.
when the meeting with the superintendents was called
sometime in August 1990.12 "V. Whether the public respondent committed grave
abuse of discretion amounting to a lack of or excess of
In that meeting, the superintendents were given jurisdiction in selectively considering the findings in the
prepared documents like the Purchase Orders and decision in Administrative Case No. XI-91-088 and
vouchers, together with the justification.13 This failing to consider the findings thereon that petitioner
circumstance prompted Jairal to conduct his own was justified in undertaking a negotiated purchase and
canvass. The Sandiganbayan held that this act was that there was no overpricing.
suggestive of the good faith of Jairal, thereby negating
any claim of conspiracy with the other co-accused and, "VI. Whether the public respondent committed grave
in particular, petitioner. abuse of discretion amounting to a lack of or excess of
jurisdiction in selectively considering the findings of XI-
In its assailed Resolution, the SBN denied petitioner's 91-088 and failing to consider the findings thereon that
Motion for Reconsideration. It held that the series of petitioner was justified in undertaking a negotiated
acts culminating in the questioned transactions purchase, there was no overpricing, and that the
constituted violations of Department of Education, purchases did not violate DECS Order No. 100.
Culture and Sports (DECS) Order No. 100; and COA
Circular No. 85-55A. Those acts, ruled the SBN, "VII. Whether the public respondent committed grave
sufficiently established that the contract or transaction abuse of discretion amounting to a lack of or excess of
entered into was manifestly or grossly jurisdiction in failing to absolve the petitioner where
disadvantageous to the government. conspiracy was not proven and the suppliers who
benefited from the alleged overpricing were acquitted.
Hence, this Petition.14
"VIII. Whether the public respondent committed grave
The Issues abuse of discretion amounting to a lack of or excess of
jurisdiction in admitting in evidence and giving
Petitioner raises the following issues for our probative value to Exhibit '8' the existence and
consideration: contents of which are fictitious.

"I. Whether the public respondent committed grave "IX. Whether the public respondent committed grave
abuse of discretion amounting to a lack of or excess of abuse of discretion amounting to a lack of or excess of
jurisdiction in upholding the findings of the Special jurisdiction in giving credence to the self-serving and
Audit Team that irregularly conducted the audit beyond perjurious testimony of co-accused Ajatil Jairal that the
the authorized period and which team falsified the questioned transactions emanated from the regional
Special Audit Report. office [in spite] of the documentary evidence and the
testimony of the accused supplier which prove that the
transaction emanated from the division office of Digos effects of the judgment and the acts of the lower court
headed by co-accused Ajatil Jairal. or agency or as in this case, the
Sandiganbayan.21 Since the assailed Decision and
"X. Whether the public respondent committed grave Resolution were dispositions on the merits, and the
abuse of discretion amounting to a lack of or excess of Sandiganbayan had no remaining issue to resolve, an
jurisdiction in finding that the petitioner entered into a appeal would have been the plain, speedy and
transaction that was manifestly and grossly adequate remedy for petitioner.
disadvantageous to the government where the
evidence clearly established that the questioned To be sure, the remedies of appeal and certiorari are
transactions were entered into by the division office of mutually exclusive and not alternative or
Digos through co-accused Ajatil Jairal. successive.22 For this procedural lapse, the Petition
should have been dismissed outright.
"XI. Whether the public respondent committed grave Nonetheless, inasmuch as it was filed within the 15-
abuse of discretion amounting to a lack of or excess of day period provided under Rule 45, the Court treated it
jurisdiction in convicting the petitioner in the absence as a Petition for Review (not certiorari ) under Rule 45
of proof beyond reasonable doubt."15 in order to accord substantial justice to the parties.
Thus, it was given due course and the Court required
the parties to file their Memoranda.
All these issues basically refer to the question of
whether the Sandiganbayan committed reversible
errors (not grave abuse of discretion) in finding Main Issue:
petitioner guilty beyond reasonable doubt of violation
of Section 3(g), Republic Act No. 3019. Sufficiency of Evidence

The Court's Ruling Petitioner argues that the Sandiganbayan erred in


convicting him, because the pieces of evidence to
The Petition has no merit. support the charges were not convincing. Specifically,
he submits the following detailed argumentation:
Procedural Issue:
"1. the Special Audit Report was fraudulent,
incomplete, irregular, inaccurate, illicit and suppressed
Propriety of Certiorari
evidence in favor of the Petitioner;

At the outset, it must be stressed that to contest the


"2. there was no competent evidence to determine the
Sandiganbayan's Decision and Resolution on June 2,
overprice as none of the samples secured by the audit
2003 and September 29, 2003, respectively, petitioner
team from the Division of Davao del Sur were
should have filed a Petition for Review
canvassed or purchased by the audit team;
on Certiorari under Rule 45, not the present Petition
for Certiorari under Rule 65. Section 7 of Presidential
Decree No. 1606, 16 as amended by Republic Act No. "3. the allegedly overpriced items did not exceed the
8249, 17 provides that "[d]ecisions and final orders of amount set by the Department of Budget and
the Sandiganbayan shall be appealable to the Supreme Management;
Court by Petition for Review on Certiorari raising pure
questions of law in accordance with Rule 45 of the "4. the decision in an administrative investigation were
Rules of Court." Section 1 of Rule 45 of the Rules of selectively lifted out of context;
Court likewise provides that "[a] party desiring to
appeal by certiorari from a judgment or final order or "5. the administrative findings that Petitioner was
resolution of the x x x Sandiganbayan x x x whenever justified in undertaking a negotiated purchase, that
authorized by law, may file with the Supreme Court a there was no overpricing, and that the purchases did
verified Petition for Review on Certiorari . The petition not violate DECS Order No. 100 were disregarded;
shall raise only questions of law which must be
distinctly set forth."
"6. Exhibit '8', the contents of which are fictitious, was
admitted in evidence and given probative value;
Basic is the principle that when Rule 45 is available,
recourse under Rule 65 cannot be allowed either as an
"7. The suppliers who benefited from the transactions
add-on or as a substitute for appeal.18 The special civil
were acquitted, along with the other accused who
action for certiorari is not and cannot be a substitute
directly participated in the questioned transactions;
for an appeal, when the latter remedy is available.19
andcralawlibrary

This Court has consistently ruled that a petition


"8. The self-serving and perjury-ridden statements of
for certiorari under Rule 65 lies only when there is no
co-accused Jairal were given credence despite
appeal or any other plain, speedy and adequate
documentary and testimonial evidence to the
remedy in the ordinary course of law.20 A remedy is
contrary." 23
considered plain, speedy and adequate if it will
promptly relieve the petitioner from the injurious
Petitioner further avers that the findings of fact in the comparison. Anyway, the logical sequence of events
Decision dated October 21, 1996 in DECS was clearly indicated in the COA Report:
Administrative Case No. XI-91-088 24 denied any
overpricing and justified the negotiated purchases in "1.5.1. Obtained samples of each laboratory tools and
lieu of a public bidding.25 Since there was no devices purchased by the Division of Davao del Sur,
overpricing and since he was justified in undertaking Memorandum Receipts covering all the samples were
the negotiated purchase, petitioner submits that he issued by the agency to the audit team and are
cannot be convicted of violating Section 3(g) of marked as Exhibits 1.2 and 3 of this Report."
Republic Act No. 3019.
"1.5.2. Bought and presented these samples to
Validity of Audit reputable business establishments in Davao City like
Mercury Drug Store, Berovan Marketing Incorporated
The principal evidence presented during trial was the and [A]llied Medical Equipment and Supply Corporation
COA Special Audit Report (COA Report). The COA is (AMESCO) where these items are also available, for
the agency specifically given the power, authority and price verification.
duty to examine, audit and settle all accounts
pertaining to the revenue and receipts of, and "1.5.3. Available items which were exactly the same as
expenditures or uses of fund and property owned by or the samples presented were purchased from AMESCO
pertaining to the government.26 It has the exclusive and Berovan Marketing Incorporated, the business
authority to define the scope of its audit and establishments which quoted the lowest prices. Official
examination and to establish the required techniques receipts were issued by the AMESCO and Berovan
and methods.27 Marketing Incorporated which are hereto marked as
Exhibits 4,5,6 and 7 respectively." 32
Thus, COA's findings are accorded not only respect but
also finality, when they are not tainted with grave The COA team then tabulated the results as follows: 33
abuse of discretion.28 Only upon a clear showing of
grave abuse of discretion may the courts set aside
decisions of government agencies entrusted with the Recanvassed
regulation of activities coming under their special % of T
technical knowledge and training.29 In this case, the Purchased Price + 10% Over- Quantity A
SBN correctly accorded credence to the COA ItemReport. Unit Cost Allow. Difference pricing Purchased O
As will be shown later, the Report can withstandFlask legal
Brush made
scrutiny. of Nylon P112.20 P8.80 P103.40 1,175% 400 P
Test Tube Glass
Initially, petitioner faults the audit team for conducting
Pyrex (18x50 mm) 22.36 14.30 8.06 56% 350 2
the investigation beyond the twenty-one day period Cylinder
Graduated
stated in the COA Regional Office Assignment PyrexOrder
(100ml) 713.00 159.50 553.50 347% 324 1
No. 91-174 dated January 8, 1991. But this delay by
Glass Spirit Burner
itself did not destroy the credibility of the Report.
(alcohol lamp) 163.50 38.50 125.00 325% 144 1
Neither was it sufficient to constitute fraud or indicate
Spring
bad faith on the part of the audit team. Indeed, in the Balance
conduct of an audit, the length of time (12.5kg)Germany
the actual 551.00 93.50 457.50 489% 102 4
Iron
examination occurs is dependent upon the documents Wire Gauge 16.20 9.90 6.30 64% 47 2
involved. If the documents are voluminous, then it
Bunsen Burner 701.00 90.75 610.25 672% 150 9
necessarily follows that more time would be
needed.30 What is important is that the findings of the
Total P380,013.60
audit should be sufficiently supported by evidence.

What is glaring is the discrepancy in prices. The


Petitioner also imputes fraud to the audit team for
tabulated figures are supported by Exhibits "E-1," "E-
making "it appear that the items released by the
2," "E-3," and "E-4," the Official Receipts evidencing
Division Office of Davao Del Sur on 21 February 1991
the equipment purchased by the audit team for
were compared with and became the basis for the
purposes of comparison with those procured by
purchase of exactly the same items on 20 February
petitioner.34 The authenticity of these Exhibits is not
1991." 31
disputed by petitioner. As the SBN stated in its
Decision, the fact of overpricing - - as reflected in the
The discrepancy regarding the date when the samples aforementioned exhibits - - was testified to or
were taken and the date of the purchase of the same identified by Laura S. Soriano, team leader of the audit
items for comparison was not very material. The team.35 It is hornbook doctrine that the findings of the
discrepancy per se did not constitute fraud in the trial court are accorded great weight, since it was able
absence of ill motive. We agree with respondents in to observe the demeanor of witnesses firsthand and up
their claim of clerical inadvertence. We accept their close.36 In the absence of contrary evidence, these
explanation that the wrong date was written by the findings are conclusive on this Court.
supplier concerned when the items were bought for
It was therefore incumbent on petitioner to prove that Second and more important, the circumstances in
the audit team or any of its members thereof was so Arriola are different from those in the present case. In
motivated by ill feelings against him that it came up the earlier case, the COA merely referred to a cost
with a fraudulent report. Since he was not able to comparison made by the engineer of COA-Technical
show any evidence to this end, his contention as to the Services Office (TSO), based on unit costs furnished by
irregularity of the audit due to the discrepancy of the the Price Monitoring Division of the COA-TSO. The COA
dates involved must necessarily fail. even refused to show the canvass sheets to the
petitioners, explaining that the source document was
An audit is conducted to determine whether the confidential.
amounts allotted for certain expenditures were spent
wisely, in keeping with official guidelines and In the present case, the audit team examined several
regulations. It is not a witch hunt to terrorize documents before they arrived at their conclusion that
accountable public officials. The presumption is always the subject transactions were grossly disadvantageous
that official duty has been regularly performed 37 - - to the government. These documents were included in
both on the part of those involved with the expense the Formal Offer of Evidence submitted to the
allotment being audited and on the part of the audit Sandiganbayan.39Petitioner was likewise presented an
team - - unless there is evidence to the contrary. opportunity to controvert the findings of the audit
team during the exit conference held at the end of the
Due Process audit, but he failed to do so.40

Petitioner likewise invokes Arriola v. Commission on Further, the fact that only three canvass sheets/price
Audit 38 to support his claim that his right to due quotations were presented by the audit team does not
process was violated. In that case, this Court ruled bolster petitioner's claim that his right to due process
that the disallowance made by the COA was not was violated. To be sure, there is no rule stating that
sufficiently supported by evidence, as it was based on all price canvass sheets must be presented. It is
undocumented claims. Moreover, in Arriola, the enough that those that are made the basis of
documents that were used as basis of the COA comparison be submitted for scrutiny to the parties
Decision were not shown to petitioners, despite their being audited. Indubitably, these documents were
repeated demands to see them. They were denied properly submitted and testified to by the principal
access to the actual canvass sheets or price quotations prosecution witness, Laura Soriano. Moreover,
from accredited suppliers. petitioner had ample opportunity to controvert them.

As the present petitioner pointed out in his Public Bidding


Memorandum, the foregoing jurisprudence became the
basis for the COA to issue Memorandum Order No. 97- Petitioner oscillates between denying that he was
012 dated March 31, 1997, which states: responsible for the procurement of the questioned
SLTDs, on the one hand; and, on the other, stating
"3.2 To firm up the findings to a reliable degree of that the negotiated purchase was justifiable under the
certainty, initial findings of overpricing based on circumstances.
market price indicators mentioned in pa. 2.1 above
have to be supported with canvass sheet and/or price On his disavowal of responsibility for the questioned
quotations indicating: procurement, he claims that the transactions
emanated from the Division Office of Digos headed by
a) the identities of the suppliers or sellers; Jairal.41 However, in the administrative case 42filed
against petitioner before the DECS, it was established
that he "gave the go signal" 43 that prompted the
b) the availability of stock sufficient in quantity to meet
division superintendents to procure the SLTDs through
the requirements of the procuring agency;
negotiated purchase. This fact is not disputed by
petitioner, who quotes the same DECS Decision in
c) the specifications of the items which should match stating that his "acts were justifiable under the
those involved in the finding of overpricing; circumstances then obtaining at that time and for
reasons of efficient and prompt distribution of the
d) the purchase/contract terms and conditions which SLTDs to the high schools." 44
should be the same as those of the questioned
transaction" In justifying the negotiated purchase without public
bidding, petitioner claims that "any delay in the
Petitioner's reliance on Arriola is misplaced. First, that enrichment of the minds of the public high school
Decision, more so, the COA Memorandum Order that students of Davao del Sur is detrimental and
was issued pursuant to the former, was promulgated antithetical to public service." 45 Although this
after the period when the audit in the present case was reasoning is quite laudable, there was nothing
conducted. Neither Arriola nor the COA Memorandum presented to substantiate it.
Order can be given any retroactive effect.
Executive Order No. 301 states the general rule that cannot accept his unsubstantiated reasoning that a
no contract for public services or for furnishing public bidding would unnecessarily delay the purchase
supplies, materials and equipment to the government of the SLTDs. Not only would he have to prove that
or any of its branches, agencies or instrumentalities indeed there would be a delay but, more important, he
may be renewed or entered into without public would have to show how a public bidding would be
bidding. The rule however, is not without exceptions. detrimental and antithetical to public service.
Specifically, negotiated contracts may be entered into
under any of the following circumstances: As the COA Report aptly states, the law on public
bidding is not an empty formality. It aims to secure the
"a. Whenever the supplies are urgently needed to lowest possible price and obtain the best bargain for
meet an emergency which may involve the loss of, or the government. It is based on the principle that under
danger to, life and/or property; ordinary circumstances, fair competition in the market
tends to lower prices and eliminate favoritism.51
"b. Whenever the supplies are to be used in connection
with a project or activity which cannot be delayed In this case, the DECS Division Office of Davao del Sur
without causing detriment to the public service; failed to conduct public bidding on the subject
transactions. The procurement of laboratory tools and
"c. Whenever the materials are sold by an exclusive devices was consummated with only the following
distributor or manufacturer who does not have documents to compensate for the absence of a public
subdealers selling at lower prices and for which no bidding:
suitable substitute can be obtained elsewhere at more
advantageous terms to the government; "1.13.a Price lists furnished by the Supply Coordination
Office
"d. Whenever the supplies under procurement have
been unsuccessfully placed on bid for at least two 1.13.b. Price lists furnished by the Procurement
consecutive times, either due to lack of bidders or the Services of the Department of Budget and
offers received in each instance were exorbitant or Management
non-conforming to specifications;
52
1.13.c. Price lists of Esteem Enterprises"
"e. In cases where it is apparent that the requisition of
the needed supplies through negotiated purchase is The COA Report states that the Division Office merely
most advantageous to the government to be relied on the above documents as basis for concluding
determined by the Department Head concerned; that the prices offered by D Implacable Enterprises and
Joven's Trading were reasonable. But as found by the
"f. Whenever the purchase is made from an agency of COA, reliance on the foregoing supporting documents
the government." 46 was completely without merit on the following
grounds:
National Center for Mental Health v. Commission on
Audit 47 upheld the validity of the negotiated contracts "a. The Supply Coordination Office was already
for the renovation and the improvement of the dissolved or abolished at the time when the
National Center for Mental Health. In that case, transactions were consummated, thus, it is illogical for
petitioners were able to show that the long overdue the management to consider the price lists furnished
need to renovate the Center "made it compelling to by the Supply Coordination Office.
fast track what had been felt to be essential in
providing due and proper treatment and care for the "b. The indorsement letter made by the Procurement
center's patients." 48 Services of the Department of Budget and
Management containing the price lists specifically
This justification was likewise accepted in Baylon v. mentions Griffin and George brands, made in England.
Ombudsman 49 in which we recognized that the However, the management did not procure these
purchases were made in response to an emergency brands of [SLTDs].
brought about by the shortage in the blood supply
available to the public. The shortage was a matter "c. The price lists furnished by the Esteem Enterprises
recognized and addressed by then Secretary of Health does not deserve the scantest consideration, since
Juan M. Flavier, who attested that "he directed the there is no law or regulation specifically mentioning
NKTI [National Kidney and Transplant Institute] to do that the price lists of the Esteem Enterprises will be
something about the situation and immediately fast- used as basis for buying [SLTDs]." 53
track the implementation of the Voluntary Blood
Donation Program of the government in order to
Granting arguendo that petitioner did not have a hand
prevent further deaths owing to the lack of blood." 50
in the procurement and that the transactions
emanated from the Division Office of Davao del Sur,
Unfortunately for petitioner, there was no showing of we still find him liable as the final approving authority.
any immediate and compelling justification for In fact, Exhibit "B-2" - - Purchase Order No. 90-024,
dispensing with the requirement of public bidding. We amounting to P231,012 and dated December 17, 1990
- - was recommended by Jairal and approved by 100. He also alleged that the Sub-Allotment Advice
petitioner.54 This exhibit was part of the evidence (SAA) to the DECS Regional Office No. XI in the
adduced in the Sandiganbayan to prove that the amount of P9.36M - - out of which P603,265.00 was
purchase of the SLTDs was consummated and duly used for the procurement of the questioned SLTDs - -
paid by the DECS without any proof of public bidding. had been released by the DECS Central Office in
August 1990, a month before the issuance of DECS
Although this Court has previously ruled 55 that all Order No. 100.
heads of offices have to rely to a reasonable extent on
their subordinates and on the good faith of those who The Court notes that these arguments are mere
prepare bids, purchase supplies or enter into assertions bereft of any proof. There was no evidence
negotiations, it is not unreasonable to expect petitioner presented to prove that the SAA was issued prior to
to exercise the necessary diligence in making sure at the effectivity of DECS Order No. 100. On the other
the very least, that the proper formalities in the hand, the COA Report states that the DECS Division of
questioned transaction were observed - - that a public Davao del Sur received the following Letters of Advice
bidding was conducted. This step does not entail of Allotments (LAA): 57
delving into intricate details of product quality,
complete delivery or fair and accurate pricing. "LAA NO. AMOUNT DATE OF LAA

Unlike other minute requirements in government DO CO471-774-90 P141,956.00 October 24, 1990
procurement, compliance or non-compliance with the
rules on public bidding is readily apparent; and the
DO-CO471-797-90 P161,309.00 November 16, 1990
approving authority can easily call the attention of the
subordinates concerned. To rule otherwise would be to
render meaningless the accountability of high-ranking DO-CO471-1007-90 P300,000.00 December 14, 1990"
public officials and to reduce their approving authority
to nothing more than a mere rubber stamp. The The foregoing LAAs were attached as annexes 58 to the
process of approval is not a ministerial duty of COA Report and were presented during trial in the
approving authorities to sign every document that Sandiganbayan.59
comes across their desks, and then point
to their subordinates as the parties responsible if Also, Schools Division Superintendent Jairal had sent a
something goes awry. letter to petitioner, requesting favorable consideration
of a forthcoming release of funding for the different
Suspension of Purchases barangay and municipal high schools. The letter was
dated October 16, 1990, 60 and was made well within
Obviously working against petitioner is DECS Order No. the effectivity of the DECS Order. In that letter, Jairal
100 dated September 3, 1990 which states thus: mentioned the receipt by his office of DECS Order No.
100, albeit wrongly interpreting it as suspending only
the purchases of reference books, supplementary
"In view of the Government's call for economy
readers, and so on, but allegedly silent on the
measures coupled with the deficiency in allotments
purchase of laboratory supplies and materials.61
intended for the payment of salary standardization,
retirement benefits, bonus and other priority items,
the procurement of reference and supplementary Finally, the SLTDs were purchased within the covered
materials, tools and devices equipment, furniture, period of DECS Order No. 100, as evidenced by the
including land acquisition and land improvement shall following relevant
be suspended for CY 1990. However, the following documents adduced by the COA audit team, among
items shall be exempted from the said suspension: others:

a) textbooks published by the Instructional Materials 1) Disbursement Voucher dated November 27, 1990
Corporation and its commercial edition; for the payment of various laboratory supplies and
materials by DECS, Davao del Sur in the amount
of P303,29.40 62
b) elementary school desks and tablet arm chairs[.]"

2) Official Receipt No. 455 dated January 7, 1991


As the COA Report succinctly states, the Administrative
amounting to P68,424.00 issued by Joven's Trading63
Order is explicit in its provisions that tools and devices
were among the items whose procurement was
suspended by the DECS for the year 1990. 3) Report of Inspection dated November 26, 1990
signed by Jacinta Villareal and Felicisimo Canoy 64
Petitioner claims that in the administrative case
against him, there was no mention of a violation of 4) Sales Invoice No. 044 dated November 26, 1990
DECS Order No. 100.56 He alleges that the purchases issued by Joven's Trading in favor of DECS amounting
of SLTDs by the division superintendents were entered to P303,259.40 65
into and perfected on July 1, 1990; that is, more than
two (2) months before the issuance of DECS Order No.
5) Certificate of Acceptance dated November 27, 1990 Penal laws are strictly construed against the
signed by Felicismo Canoy 66 government.72

6) Purchase Order No. 90-021 in favor of Joven's If the accused is to be sent to jail, it must be because
Trading dated November 26, 1990 recommended for there is solid evidence to pin that person down, not
approval by Ajatil Jairal 67 because of the omission of a procedural matter alone.
Indeed, all the elements of a violation of Section 3(g)
7) Official Receipt No. 92356 dated January 7, 1991 of Republic Act No. 3019 should be established to
issued by D Implacable Enterprises amounting prove the culpability of the accused. In this case, there
to P231,012.00 68 is a clear showing that all the elements of the offense
are present. Thus, there can be no other conclusion
other than conviction.
8) Purchase Order No. 90-024 dated December 17,
1990 recommended for approval by Ajatil Jairal and
approved Director Venancio Nava amounting We note, however, that petitioner was sentenced to
to P231,012.00." 69 suffer the penalty of six (6) years and one (1) day as
minimum to twelve (12) years and one (1) day as
maximum. Under Section 9 of Republic Act 3019,
The confluence of the foregoing circumstances
petitioner should be punished with imprisonment of not
indubitably establishes that petitioner indeed wantonly
less than six (6) years and one (1) month nor more
disregarded regulations. Additionally, DECS Order No.
than fifteen years. Thus, we adjust the minimum
100 negates his claim that the negotiated transaction -
penalty imposed on petitioner in accordance with the
- done instead of a public bidding - - was justified. If
law.
that Order suspended the acquisition of tools and
devices, then there was all the more reason for making
purchases by public bidding. Since the buying of tools WHEREFORE, the Petition is DENIED. The assailed
and devices was specifically suspended, petitioner Decision and Resolution are AFFIRMED, with the
cannot argue that the purchases were done in the MODIFICATION that the minimum sentence imposed
interest of public service. shall be six (6) years and one (1) month, not six (6)
years and one (1) day. Costs against petitioner.
Proof of Guilt
SO ORDERED.
To sustain a conviction under Section 3(g) of Republic
Act No. 3019, it must be clearly proven that 1) the
accused is a public officer; 2) the public officer entered
into a contract or transaction on behalf of the
government; and 3) the contract or transaction was
grossly and manifestly disadvantageous to the
government.70

From the foregoing, it is clear that the Sandiganbayan


did not err in ruling that the evidence presented
warranted a verdict of conviction. Petitioner is a public
officer, who approved the transactions on behalf of the
government, which thereby suffered a substantial loss.
The discrepancy between the prices of the SLTDs
purchased by the DECS and the samples purchased by
the COA audit team clearly established such undue
injury. Indeed, the discrepancy was grossly and
manifestly disadvantageous to the government.

We must emphasize however, that the lack of a public


bidding and the violation of an administrative order do
not by themselves satisfy the third element of Republic
Act No. 3019, Section 3(g); namely, that the contract
or transaction entered into was manifestly and grossly
disadvantageous to the government, as seems to be
stated in the Resolution of the Sandiganbayan denying
the Motion for Reconsideration.71 Lack of public bidding
alone does not result in a manifest and gross
disadvantage. Indeed, the absence of a public bidding
may mean that the government was not able to secure
the lowest bargain in its favor and may open the door
to graft and corruption. Nevertheless, the law requires
that the disadvantage must be manifest and gross.

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