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G.R. No. 148560               November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of
his pen in defense of the rights of the individual from the vast powers of
the State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the
State cannot tread - asserting that "individual spontaneity" must be
allowed to flourish with very little regard to social interference - he
veritably acknowledges that the exercise of rights and liberties is imbued
with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively,
in interfering with the liberty of action of any of their number, is self-
protection. The only purpose for which power can be rightfully exercised
over any member of a civilized community, against his will, is to prevent
harm to others.
Parallel to individual liberty is the natural and illimitable right of the
State to self-preservation. With the end of maintaining the integrity and
cohesiveness of the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic
collectivism wrought changes in the social order, carrying with it a new
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formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process, the
web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular
and broken. Antagonism, often outright collision, between the law as the
expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed.
It is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder),1 as amended by RA 7659, 2 wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because, according to him, (a)
it suffers from the vice of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it abolishes the
element of mens rea in crimes already punishable under The Revised
Penal Code, all of which are purportedly clear violations of the
fundamental rights of the accused to due process and to be informed of
the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to
have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4
which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar
schemes:
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(1) Through misappropriation, conversion, misuse, or malversation
of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
(6) By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or total value of
2
at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person
who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances as provided
by the Revised Penal Code shall be considered by the court. The court
shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived
from the deposit or investment thereof forfeited in favor of the State
(underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient
to establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or
conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par.
(a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and
Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation
of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical
Standards for Public Officials and Employees); (d) Crim. Case No. 26564,
for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No.
26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of
the case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an opportunity to file
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counter-affidavits and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses,
and opportunity to prove lack of probable cause. The purported
ambiguity of the charges and the vagueness of the law under which they
are charged were never raised in that Omnibus Motion thus indicating the
explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a
Resolution in Crim. Case No. 26558 finding that "a probable cause for
the offense of PLUNDER exists to justify the issuance of warrants for the
arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim.
Case No. 26558 on the ground that the facts alleged therein did not
constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply to the
Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b)
The Plunder Law requires less evidence for proving the predicate crimes
of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity
of legislation is predicated on the basic principle that a legislative
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measure is presumed to be in harmony with the Constitution. 3 Courts
invariably train their sights on this fundamental rule whenever a
legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality
takes its bearings on the idea that it is forbidden for one branch of the
government to encroach upon the duties and powers of another. Thus it
has been said that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly
rest, the courts must assume that the legislature is ever conscious of the
borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right
and advancing the welfare of the majority. Hence in determining whether
the acts of the legislature are in tune with the fundamental law, courts
should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the
courts in favor of its constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a statute, courts must
first ascertain whether an interpretation is fairly possible to sidestep the
question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon 4 we held that as long as
there is some basis for the decision of the court, the constitutionality of
the challenged law will not be touched and the case will be decided on
other available grounds. Yet the force of the presumption is not sufficient
to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck
down on sight lest the positive commands of the fundamental law be
unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on
the party challenging the validity of the statute. He must demonstrate
beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of
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unconstitutionality. A doubt, even if well-founded, will hardly suffice. As
tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner
has miserably failed in the instant case to discharge his burden and
overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to determine
the nature of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or forbidden,
and prescribes the elements of the crime with reasonable certainty and
particularity. Thus -
1. That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth
through a combination or series of the following overt or criminal
acts: (a) through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (b) by
receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the public
officer; (c) by the illegal or fraudulent conveyance or disposition of
assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities of Government owned or
controlled corporations or their subsidiaries; (d) by obtaining,
receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the
promise of future employment in any business enterprise or
undertaking; (e) by establishing agricultural, industrial or
commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular
persons or special interests; or (f) by taking advantage of official
position, authority, relationship, connection or influence to unjustly
4
enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines;
and,
3. That the aggregate amount or total value of the ill-gotten wealth
amassed, accumulated or acquired is at least ₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable
to its penalties, its validity will be sustained. It must sufficiently guide
the judge in its application; the counsel, in defending one charged with
its violation; and more importantly, the accused, in identifying the realm
of the proscribed conduct. Indeed, it can be understood with little
difficulty that what the assailed statute punishes is the act of a public
officer in amassing or accumulating ill-gotten wealth of at least
₱50,000,000.00 through a series or combination of acts enumerated in
Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the
law, indicating with reasonable certainty the various elements of the
offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose
'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized under R.A. No.
7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF
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THE PHILIPPINES, by allocated for the province of Ilocos Sur under R.A. No. 7171, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co- himself and/or in connivance with co-accused Charlie 'Atong'
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr.
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES &
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE JANE DOES; (italic supplied).
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there (c) by directing, ordering and compelling, FOR HIS PERSONAL
willfully, unlawfully and criminally amass, accumulate and acquire BY GAIN AND BENEFIT, the Government Service Insurance System
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MORE OR LESS, and the Social Security System (SSS),
MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
SEVENTY THREE PESOS AND SEVENTEEN BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS
CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF FIFTY CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS
THE PHILIPPINES, through ANY OR A combination OR A series of SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
as follows: (₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE
OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
(a) by receiving OR collecting, directly or indirectly, on SEVERAL MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50);
HUNDRED FORTY-FIVE MILLION PESOS ( ₱545,000,000.00), AND BY COLLECTING OR RECEIVING, DIRECTLY OR
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF JOHN DOES AND JANE DOES, COMMISSIONS OR
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES
co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE
Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND MILLION SEVEN HUNDRED THOUSAND PESOS
JANE DOES, in consideration OF TOLERATION OR (₱189,700,000.00) MORE OR LESS, FROM THE BELLE
PROTECTION OF ILLEGAL GAMBLING; CORPORATION WHICH BECAME PART OF THE DEPOSIT IN
THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME
(b) by DIVERTING, RECEIVING, misappropriating, 'JOSE VELARDE;'
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR
THEIR PERSONAL gain and benefit, public funds in the amount (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,
of ONE HUNDRED THIRTY MILLION PESOS (₱130,000,000.00), SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
more or less, representing a portion of the TWO HUNDRED PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
MILLION PESOS (₱200,000,000.00) tobacco excise tax share AND JANE DOES, in the amount of MORE OR LESS THREE

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BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (₱3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as
there is obviously none - that will confuse petitioner in his defense.
Although subject to proof, these factual assertions clearly show that the
elements of the crime are easily understood and provide adequate
contrast between the innocent and the prohibited acts. Upon such
unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent
defense.
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
phrase "a combination or series of overt or criminal acts" found in Sec. 1,
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
according to petitioner, render the Plunder Law unconstitutional for
being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of 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 command requiring the
legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear,
or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
6
Moreover, it is a well-settled principle of legal hermeneutics that words of
a statute will be interpreted in their natural, plain and ordinary
acceptation and signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those words. 8 The
intention of the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains
the following commonly accepted definition of the words "combination"
and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to
obscure individual characters.
Series - a number of things or events of the same class coming one after
another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA 7080 or
the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7
May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL
ACTS AS MENTIONED IN SECTION ONE HEREOF. Now 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 else
are included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
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REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we
mean, two different acts. It cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That
is why, I said, that is a very good suggestion because if it is only one act,
7
it may fall under ordinary crime but we have here a combination or series
of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one"
or maybe even "two" acts may already result in such a big amount, on line
25, would the Sponsor consider deleting the words "a series of overt or," to
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read, therefore: "or conspiracy COMMITTED by criminal acts such as."
Remove the idea of necessitating "a series." Anyway, the criminal acts are
in the plural.
SENATOR TANADA: That would mean a combination of two or more of the
acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two
or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under
the particular crime. But when we say "acts of plunder" there should be, at
least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing
laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at
least two (2) acts falling under different categories of enumeration
provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more
overt or criminal acts falling under the same category of enumeration
found in Sec. 1, par. (d), say, misappropriation, malversation and raids
on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in
specifically providing for it in the law.
8
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in relation
to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in subsections
(1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern
of overt or criminal acts is directed towards a common purpose or goal
which is to enable the public officer to amass, accumulate or acquire ill-
gotten wealth. And thirdly, there must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan of
action or method' which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid common goal. In the
alternative, if there is no such overall scheme or where the schemes or
methods used by multiple accused vary, the overt or criminal acts must
form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine
is manifestly misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
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of the Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is void for uncertainty
is whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.12 It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice
Vicente V. Mendoza during the deliberations of the Court that the
allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as
to its application, violates the first essential of due process of law." 13 The
overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." 14
9
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent
value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement
that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." 15 The
possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of
others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First Amendment." 16 In Broadrick v.
Oklahoma,17 the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For
this reason, it has been held that "a facial challenge to a legislative act is
the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act
would be valid."18 As for the vagueness doctrine, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible
[Document title]
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the
conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is
that "one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its
application might be unconstitutional."20 As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant." 21 Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face
and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected. 22 It
constitutes a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts. 23 But, as the U.S. Supreme
Court pointed out in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly
10
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly and
only as a last resort," 25 and is generally disfavored. 26 In determining the
constitutionality of a statute, therefore, its provisions which are alleged
to have been violated in a case must be examined in the light of the
conduct with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in
the law. Every provision of the law should be construed in relation and
with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being one of
the Senators who voted for its passage, petitioner must be aware that the
law was extensively deliberated upon by the Senate and its appropriate
committees by reason of which he even registered his affirmative vote
with full knowledge of its legal implications and sound constitutional
anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if
only to illustrate and emphasize the point that courts are loathed to
declare a statute void for uncertainty unless the law itself is so imperfect
and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague.
Petitioners posited, among others, that the term "unwarranted" is highly
imprecise and elastic with no common law meaning or settled definition
by prior judicial or administrative precedents; that, for its vagueness,
[Document title]
Sec. 3, par. (e), violates due process in that it does not give fair warning
or sufficient notice of what it seeks to penalize. Petitioners further argued
that the Information charged them with three (3) distinct offenses, to wit:
(a) giving of "unwarranted" benefits through manifest partiality; (b) giving
of "unwarranted" benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of
the nature and cause of the accusation against them was violated
because they were left to guess which of the three (3) offenses, if not all,
they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act does not suffer from the
constitutional defect of vagueness. The phrases "manifest partiality,"
"evident bad faith," and "gross and inexcusable negligence" merely
describe the different modes by which the offense penalized in Sec. 3,
par. (e), of the statute may be committed, and the use of all these
phrases in the same Information does not mean that the indictment
charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third International
Dictionary, p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F.
Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A
1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public
officer in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).
11
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e),
of The Anti-Graft and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that
Sec. 4 of the Plunder Law circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern
of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic
mind. In a criminal prosecution for plunder, as in all other crimes, the
accused always has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State succeeds in
demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal. 29 The use of the "reasonable doubt"
standard is indispensable to command the respect and confidence of the
community in the application of criminal law. It is critical that the moral
[Document title]
force of criminal law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his
ordinary affairs has confidence that his government cannot adjudge him
guilty of a criminal offense without convincing a proper factfinder of his
guilt with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional law as it
gives life to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every fact
necessary to constitute the crime with which he is charged. 30 The
following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia
on this score during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080,
9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law
that what is alleged in the information must be proven beyond reasonable
doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is less
than ₱100 million, but the totality of the crime committed is ₱100 million
since there is malversation, bribery, falsification of public document,
coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs
to be proved beyond reasonable doubt. What is required to be proved
beyond reasonable doubt is every element of the crime charged. For
example, Mr. Speaker, there is an enumeration of the things taken by the
robber in the information – three pairs of pants, pieces of jewelry. These
need not be proved beyond reasonable doubt, but these will not prevent
the conviction of a crime for which he was charged just because, say,
instead of 3 pairs of diamond earrings the prosecution proved two. Now,
what is required to be proved beyond reasonable doubt is the element of
the offense.
12
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the
crime of plunder the totality of the amount is very important, I feel that
such a series of overt criminal acts has to be taken singly. For instance, in
the act of bribery, he was able to accumulate only ₱50,000 and in the
crime of extortion, he was only able to accumulate ₱1 million. Now, when
we add the totality of the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single act, so how can
we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element
beyond reasonable doubt. For example, one essential element of the crime
is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is ₱100 million, then there
is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of plunder.
The burden still remains with the prosecution to prove beyond any iota of
doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component
of the crime suffers from a dismal misconception of the import of that
provision. What the prosecution needs to prove beyond reasonable doubt
is only a number of acts sufficient to form a combination or series which
would constitute a pattern and involving an amount of at least
₱50,000,000.00. There is no need to prove each and every other act
alleged in the Information to have been committed by the accused in
furtherance of the overall unlawful scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth. To illustrate, supposing that the
accused is charged in an Information for plunder with having committed
fifty (50) raids on the public treasury. The prosecution need not prove all
[Document title]
these fifty (50) raids, it being sufficient to prove by pattern at least two (2)
of the raids beyond reasonable doubt provided only that they amounted
to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-
product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for
a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme
or conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment of
a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is
his submission that "pattern" is "a very important element of the crime of
plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it
the accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of Evidence
if there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
13
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are
proved beyond reasonable doubt without applying Section 4, can you not
have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in
convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4
when there is proof beyond reasonable doubt on the acts charged
constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the
crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar
as the predicate crimes charged are concerned that you do not have to go
that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very
important element of the crime of plunder and that cannot be avoided by
the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
[Document title]
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder x x x x
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient evidence to engender
that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake
of argument that Sec. 4 is flawed and vitiated for the reasons advanced
by petitioner, it may simply be severed from the rest of the provisions
without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the
provisions thereof should accordingly be treated independently of each
other, especially if by doing so, the objectives of the statute can best be
achieved.
As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus,
he says, in his Concurring Opinion -
14
x x x Precisely because the constitutive crimes are mala in se the element
of mens rea must be proven in a prosecution for plunder. It is noteworthy
that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty
knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void,
petitioner cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict
him would not be evidence for each and every individual criminal act but
only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's view,
would provide for a speedier and faster process of attending to this kind
of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
[Document title]
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the
said public officer 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 Justice
Holmes said: "We agree to all the generalities about not supplying
criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean." 35
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and
serious illegal detention for ransom resulting in the death of the victim or
the victim is raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death; and drug offenses involving minors
or resulting in the death of the victim in the case of other crimes; as well
as murder, rape, parricide, infanticide, kidnapping and serious illegal
15
detention, where the victim is detained for more than three days or
serious physical injuries were inflicted on the victim or threats to kill him
were made or the victim is a minor, robbery with homicide, rape or
intentional mutilation, destructive arson, and carnapping where the
owner, driver or occupant of the carnapped vehicle is killed or raped,
which are penalized by reclusion perpetua to death, are clearly heinous
by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme
of the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that
so deeply entrenched itself in the structures of society and the psyche of
the populace. [With the government] terribly lacking the money to
provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an
actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators must
not be allowed to cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se37 and it does
not matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes are mainly mala in se. Indeed,
it 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
wrongness of the acts.
[Document title]

To clinch, petitioner likewise assails the validity of RA 7659, the CONSTITUTIONAL. Consequently, the petition to declare the law
amendatory law of RA 7080, on constitutional grounds. Suffice it to say unconstitutional is DISMISSED for lack of merit.
however that it is now too late in the day for him to resurrect this long
dead issue, the same having been eternally consigned by People v. SO ORDERED.
Echegaray38 to the archives of jurisprudential history. The declaration of
this Court therein that RA 7659 is constitutionally valid stands as a Buena, and De Leon, Jr., JJ., concur.
declaration of the State, and becomes, by necessary effect, assimilated in
the Constitution now as an integral part of it. Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J.
Mendoza.
Our nation has been racked by scandals of corruption and obscene Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
profligacy of officials in high places which have shaken its very Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see
foundation. The anatomy of graft and corruption has become more dissenting opinion.
elaborate in the corridors of time as unscrupulous people relentlessly Mendoza, J., please see concurring opinion.
contrive more and more ingenious ways to bilk the coffers of the Panganiban J., please see separate concurring opinion.
government. Drastic and radical measures are imperative to fight the Carpio, J., no part. Was one of the complainants before Ombudsman.
increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor
and ultimately consume the moral and institutional fiber of our nation. Footnotes
The Plunder Law, indeed, is a living testament to the will of the
legislature to ultimately eradicate this scourge and thus secure society 1 
Approved 12 July 1991 and took effect 8 October 1991.
against the avarice and other venalities in public office.
2 
Approved 13 December 1993 and took effect 31 December 1993.
These are times that try men's souls. In the checkered history of this
nation, few issues of national importance can equal the amount of 3 
Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240
interest and passion generated by petitioner's ignominious fall from the
SCRA 644.
highest office, and his eventual prosecution and trial under a virginal
statute. This continuing saga has driven a wedge of dissension among 4 
our people that may linger for a long time. Only by responding to the G.R. No. 87001, 4 December 1989, 179 SCRA 828.
clarion call for patriotism, to rise above factionalism and prejudices, shall 5 
we emerge triumphant in the midst of ferment. Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).

6 
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise 82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d
known as the Plunder Law, as amended by RA 7659, is Supp. 768.

16
[Document title]

7  20 
Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529
June 1996, 257 SCRA 430, 448. (1960). The paradigmatic case is Yazoo & Mississippi Valley RR. v.
Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912).
8 
PLDT v. Eastern Telecommunications Phil., Inc., G.R. No.
21 
943774, 27 August 1992, 213 SCRA 16, 26. G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).

9  22 
Resolution of 9 July 2001. Id. at 1328. See also Richard H. Fallon, Jr., As Applied and
Facial Challenges, 113 Harv. L. Rev. 1321 (2000) arguing that, in
10 
See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA an important sense, as applied challenges are the basic building
186, 195-196. blocks of constitutional adjudication and that determinations that
statutes are facially invalid properly occur only as logical
11 
Ibid. outgrowths of ruling on whether statutes may be applied to
particular litigants on particular facts.
12 
State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.
23 
Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral
13 
Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. Commission, 63 Phil. 139, 158 (1936); "[T]he power of judicial
328 (1926) cited in Ermita-Malate Hotel and Motel Operators review is limited to actual cases and controversies to be exercised
Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967). after full opportunity of argument by the parties, and limited
further to be constitutional question raised or the very lis mota
14 
NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 presented. Any attempt at abstraction could only lead to dialectics
(1958); Shelton v. Tucker 364 U.S. 479, 5 L. Ed. 2d 231 (1960). and barren legal questions and to sterile conclusions unrelated to
actualities."
15 
Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 24 
(1972) (internal quotation marks omitted). 401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord,
United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524 (1960);
16  Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L.
United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697,
Ed. 2d 388 (1989).
707 (1987); see also People v. De la Piedra, G.R. No. 121777, 24
January 2001. 25 
Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841;
17  National Endowment for the Arts v. Finley, 524 U.S. 569, 580
413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).
(1998).
18 
United States v. Salerno, supra. 26 
FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603
19  (1990); Cruz v. Secretary of Environment and Natural Resources,
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369 (1982).

17
[Document title]

37 
G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146
Opinion). SCRA 324, 338 (1986).

27  38 
United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, G.R. No. 117472, 7 February 1997, 267 SCRA 682.
9 L. Ed. 2d 561, 565-6 (1963).

28 
G.R. No. 57841, 30 July 1982, 115 SCRA 793. The Lawphil Project - Arellano Law Foundation

29 
People v. Ganguso, G.R. No. 115430, 23 November 1995, 250
SCRA 268, 274-275.

30 
People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA DISSENTING OPINION
349, 360.

31 
Then Senate President Jovito R. Salonga construed in brief the
provision, thuswise: "If there are let’s say 150 crimes all in all,
criminal acts, whether bribery, misappropriation, malversation,
extortion, you need not prove all those beyond reasonable doubt. If
you can prove by pattern, let’s say 10, but each must be proved
beyond reasonable doubt, you do not have to prove 150 crimes.
That’s the meaning of this (Deliberations of Committee on
Constitutional Amendments and Revision of Laws, 15 November
1988, cited in the Sandiganbayan Resolution of 9 July 2001).
KAPUNAN, J.:
The primary duty of the Court is to render justice. The resolution of the
issues brought before it must be grounded on law, justice and the basic
tenets of due process, unswayed by the passions of the day or the clamor
of the multitudes, guided only by its members’ honest conscience, clean
hearts and their unsullied conviction to do what is right under the law.

32 
TSN, 18 September 2001, pp. 115-121. The issues posed by the instant petition are quite difficult. The task of
the Court to resolve the same is made more daunting because the case
33 
4 Record of the Senate 1316, 5 June 1989. involves a former President of the Republic who, in the eyes of certain
sectors of society, deserves to be punished. But the mandate of the Court
34 
Ibid. is to decide these issues solely on the basis of law and due process, and
regardless of the personalities involved. For indeed, the rule of law and
35 
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929). the right to due process are immutable principles that should apply to
all, even to those we hate. As Fr. Joaquin G. Bernas, S.J., a noted
36 
267 SCRA 682, 721-2 (1997) (emphasis added). constitutionalist, aptly puts it--

18
[Document title]
x x x the greater disaster would be if the Supreme Court should heed the
clamor for conviction and convict Estrada even under an
unconstitutional law but of the belief that Estrada deserves to be
punished. That would be tantamount to a rule of men and not of law.1
The Basic Facts
The petition before us questions the constitutionality of Republic Act No.
7080 (R.A. No. 7080 or Plunder Law), as amended by Republic Act No.
7659,2 entitled "An Act Defining and Penalizing the Crime of
Plunder."3 This original petition for certiorari and prohibition against
Respondent Third Division of the Sandiganbayan filed by petitioner
Joseph Ejercito Estrada assails Respondent court’s Resolution, dated
July 9, 2001, denying his Motion to Quash the information against him
in Criminal Case No. 26558 for Plunder. Petitioner likewise prays that
the Sandiganbayan be prohibited and enjoined from proceeding with his
arraignment and trial in Criminal Case No. 26558 due to the
unconstitutionality of R. A. No. 7080.
On the heels of the finality of the joint decision of this Court in G.R. No.
146710 (Estrada vs. Desierto, et al.) and in G.R. No. 146738 (Estrada vs.
Macapagal-Arroyo), promulgated on April 3, 2001, upholding the
constitutionality of President Gloria Macapagal-Arroyo’s assumption of
office as President of the Republic of the Philippines and declaring that
the former President Joseph Ejercito Estrada no longer enjoyed immunity
from suit, the Ombudsman filed eight (8) Informations against Estrada.
These cases were Criminal Case No. 26558 (for Plunder); Criminal Case
No. 26559 (for Violation of Sec. 3[a] of Republic Act No. 3019); Criminal
Case No. 26560 (for Violation of Sec. 3[a] of 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 Case No.
26563 (for Violation of Sec. 7[d] of R.A. No. 6713); Criminal Case No.
26564 (for Perjury); and Criminal Case No. 26565 (for Illegal Use of
Alias).
19
The aforementioned informations were raffled to the five divisions of the
Sandiganbayan. Criminal Case No. 26558 was raffled to the Third
Division of said court. The amended information against petitioner
charging violations of Section 2, in relation to Section (d) (1) (2) of the
statute reads:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, by himself and in conspiracy with his co-
accused, business associates and persons heretofore named, by taking
advantage of his official position, authority, connection or influence as
President of the Republic of the Philippines, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire ill-gotten
wealth, and unjustly enrich himself in the aggregate amount of
P4,097,804,173.17, more or less, through a combination and series of
overt and criminal acts, described as follows:
(a) by receiving, collecting, directly or indirectly, on many
instances, so-called "jueteng money" from gambling operators in
connivance with co-accused Jose ‘Jinggoy’ Estrada, Yolanda T.
Ricaforte and Edward Serapio, as witnessed by Gov. Luis ‘Chavit’
Singson, among other witnesses, in the aggregate amount of FIVE
HUNDRED FORTY-FIVE MILLION PESOS (P545,000.000.00),
more or less, in consideration of their protection from arrest or
interference by law enforcers in their illegal "jueteng" activities;
and
(b) by misappropriating, converting and misusing for his gain and
benefit public fund in the amount of ONE HUNDRED THIRTY
MILLION PESOS (P130,000,000.00), more or less, representing a
portion of One Hundred Seventy Million Pesos (P170,000,000.00)
tobacco excise tax share allocated for the Province of Ilocos Sur
under R.A. No. 7171, in conspiracy with co-accused Charlie
‘Atong’ Ang, Alma Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan
or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as witnessed by Gov.
Luis ‘Chavit’ Singson, among other witnesses; and
[Document title]
(c) by directing, ordering and compelling the Government Service
Insurance System (GSIS) and the Social Security System (SSS) to
purchase and buy a combined total of 681,733,000 shares of
stock of the Belle Corporation in the aggregate gross value of One
Billion Eight Hundred Forty-Seven Million Five Hundred Seventy
Eight Thousand Pesos and Fifty Centavos(P1,847,578,057.50), for
the purpose of collecting for his personal gain and benefit, as in
fact he did collect and receive the sum of ONE HUNDRED EIGHTY
NINE MILLION SEVEN HUNDRED THOUSAND FIFTY SEVEN
PESOS (P189,700,000.00) as commission for said stock purchase;
and
(d) by unjustly enriching himself in the amount of THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17)
comprising his unexplained wealth acquired, accumulated and
amassed by him under his account name "Jose Velarde" with
Equitable PCI Bank:
to the damage and prejudice of the Filipino people and the Republic of
the Philippines.
CONTRARY TO LAW.4
On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte
Manifestation to Withdraw Information in Criminal Case Nos. 26559,
26560, 26561, 26562 and 26563. Petitioner registered his objection to
the Ombudsman’s motion to withdraw. The divisions of the
Sandiganbayan to which said cases were assigned granted the
withdrawal of the informations, save for that in Criminal Case No. 26561.
At present, the Order of the First Division of the Sandiganbayan denying
the Ombudsman’s motion to withdraw in Criminal Case No. 26561 is still
under reconsideration.
20
In Criminal Case No. 26558, petitioner filed on April 11, 2001 an
Omnibus Motion for the remand of the case to the Office of the
Ombudsman for: (1) the conduct of a preliminary investigation as regards
specification "d" of the accusations in the information in said case; and
(2) reconsideration/reinvestigation of the offenses in specifications "a,"
"b" and "c" to enable petitioner to file his counter-affidavits as well as
other necessary documents.
On April 25, 2001, the Third Division of the Sandiganbayan issued a
Resolution finding that:
(p)robable cause for the offense of PLUNDER exists to justify issuance of
warrants of arrest of accused former President Joseph Ejercito Estrada,
Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or
Eleuterio Ramon Tan or Mr. Uy and Jane Doe a.k.a. Delia Rajas.
Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan
issued a Resolution denying petitioner’s Omnibus Motion.
On June 15, 2001, petitioner filed a Motion for Reconsideration of said
Resolution but the same was denied in a Resolution of June 25, 2001.
Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the
information in Criminal Case No. 26558, invoking the following grounds:
(1) the facts charged do not constitute an indictable offense as R.A. No.
7080, the statute on which it is based, is unconstitutional; and (2) the
information charges more than one offense.
The People of the Philippines filed an Opposition thereto on June 21,
2001. Petitioner filed his Reply to the Opposition on June 28, 2001.
On July 9, 2001, the Third Division of the Sandiganbayan issued its
Resolution denying petitioner’s motion to quash.
[Document title]
Petitioner thus filed the instant petition for certiorari and prohibition,
claiming that the Sandiganbayan committed grave abuse of discretion in
denying his motion to quash the information in Criminal Case No.
26558. Petitioner argues that R.A. No. 7080 is unconstitutional on the
following grounds:
I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS
VAGUENESS
II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE
ACCUSED TO KNOW THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM
III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE BY
LOWERING THE QUANTUM OF EVIDENCE NECESSARY FOR
PROVING THE COMPONENT ELEMENTS OF PLUNDER
IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE
LEGISLATURE TO DELIMIT THE REASONABLE DOUBT
STANDARD AND TO ABOLISH THE ELEMENT OF MENS
REA IN MALA IN SE CRIMES BY CONVERTING THESE TO MALA
PROHIBITA, IN VIOLATION OF THE DUE PROCESS CONCEPT OF
CRIMINAL RESPONSIBILITY.5
The provisions of law involved
Section 2 of R.A. No. 7080 provides:
Definition of the Crime of Plunder; Penalties. - Any public officer who, by
himself or in connivance with members of his family, relatives by affinity
or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section
1(d) hereof in the aggregate amount or total value of at least Fifty million
21
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated
with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived
from the deposit or investment thereof forfeited in favor of the State. (As
amended by Sec. 12, RA No. 7659.)
Section 1(d) of the same law defines "ill-gotten wealth" as "any asset,
property, business enterprise or material possession of any person within
the purview of Section Two (2)" hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates, and/or
business associates by any combination or series of the following means
or similar schemes:
1. Through misappropriation, conversion, misuse or malversation
of public funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
[Document title]
participation including the promise of future employment in any
business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combination and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6. By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.6
On the other hand, Section 4 states:
Rule of Evidence - For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy.
Petitioner’s theory
Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face,
and suffers from structural deficiency and ambiguity.7 In sum, he
maintains that the law does not afford an ordinary person reasonable
notice that his actuation will constitute a criminal offense. More
particularly, petitioner argues that the 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 Racketeer
Influenced and Corrupt Organizations Act (RICO law), after which the
Plunder Law was patterned, have given different interpretations to "series
of acts or transactions."8 In addition, he terms "raid on the public
treasury," "receiving or accepting a gift," "commission," "kickbacks,"
22
"illegal or fraudulent conveyance or disposition of assets," "monopolies or
other combinations," "special interests," "taking undue advantage of
official position," "unjustly enrich" all suffer from overbreadth which is a
form of vagueness.9
In arguing that the law on plunder is vague and impermissibly broad,
petitioner points out that the terms "combination" and ‘series" used in
the phrase "any combination or series of the following means or similar
schemes" are not defined under the statute. The use of these terms in the
law allegedly raises several questions as to their meaning and import.
Petitioner posits the following queries: "Does it (referring to the term
"series") mean two, three, four, of the overt or criminal acts listed in
Section 1(d)? Would it mean two or more related enterprises falling
under at least two of the means or ‘similar schemes’ listed in the law,
or just a joint criminal enterprise? Would it require
substantial identity of facts and participants, or merely a common
pattern of action? Would it imply close connection between acts, or
a direct relationship between the charges? Does the term mean
a factual relationship between acts or merely a common plan among
conspirators?"10
The term "combination" is allegedly equally equivocal. According to
petitioner, it is not clear from the law if said term covers time, place,
manner of commission, or the principal characters. Thus petitioner asks:
"Does it (referring to the term "combination") include any two or more
acts, whether legal or illegal, or does the law require that the
combination must include at least two of the ‘means or similar schemes’
laid down in R.A. 7080? Does it cover transactions that have occurred in
the same place or area, or in different places, no matter how far
apart? Does ‘combination’ include any two or more overt acts, no matter
how far apart in time, or does it contemplate acts committed within a
short period of time? Does the ‘combination’ cover the modus
operandi of the crimes, or merely the evidence to be used at the
trial?"11
[Document title]
It is also argued that the phrase "pattern of overt or criminal acts
indicative of the overall scheme or conspiracy" adds to the vagueness of
the law because "pattern" is not defined therein and is not included in
the definition of the crime of plunder even though it is an essential
element of said crime.12
Petitioner also maintains that the Plunder Law violates the due process
clause and the constitutional presumption of innocence by lowering the
quantum of evidence necessary for proving the component elements of
plunder because Section 4 does not require that each and every criminal
act done by the accused in furtherance of the scheme or conspiracy be
proved, "it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy."13
Finally, petitioner alleges that it is beyond the power of Congress to
delimit the reasonable doubt standard and to abolish the element
of mens rea in mala in se crimes by converting these to mala
prohibita, thereby making it easier for the prosecution to prove
malversation, bribery, estafa and other crimes committed by public
officers since criminal intent need not be established. 14
Considering the infringement to the constitutionally-guaranteed right to
due process of an accused, petitioner contends that R.A. No. 7080
cannot be accorded any presumption of constitutional validity.
Respondents’ theory
On the other hand, Respondents argue that the "particular elements
constituting the crime of plunder" are stated with "definiteness and
certainty," as follows:
(1) There is a public officer who acts by himself or in connivance
with members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons;
23
(2) There is an amassing, accumulating or acquiring of ill-gotten
wealth;
(3) The total amount of ill-gotten wealth so amassed, accumulated
or acquired is at least Fifty Million Pesos (P50,000,000.00); and
(4) The ill-gotten wealth, which is defined as any asset, property,
business enterprise or material possession of any person within
the purview of Section Two (2) of R.A. No. 7080, was acquired by
him directly or indirectly through dummies, nominees, agents,
subordinates, and/or business associates by any combination or
series of the means or similar schemes enumerated in Section
1(d).15
Moreover, Respondents maintain that assuming that there is some
vagueness in the law, it need not be declared unconstitutional but may
be clarified by judicial construction. 16 Respondents further add that the
ordinary import of the terms combination" and "series" should prevail, as
can be gleaned from the deliberations of the Congress in the course of its
passage of the law. According to respondents, "series of overt criminal
acts" simply mean a repetition of at least two of any of those enumerated
acts found in Section 1(d) of R.A. 7080. And "combination" means a
product of combining of at least one of any of those enumerated acts
described in Section 1(d) with at least one of any of the other acts so
enumerated. Respondents score petitioner for arguing on the basis of
federal courts’ decisions on the RICO law, citing that the U.S. courts
have consistently rejected the contention that said law is void for being
vague.17
Respondents deny that the Plunder Law dispenses with the requirement
of proof beyond reasonable doubt. While there may be no necessity to
prove each and every other act done by the accused in furtherance of the
scheme to acquire ill-gotten wealth, it is still necessary for the
prosecution to prove beyond reasonable doubt the pattern of overt or
criminal acts indicative of the overall scheme or conspiracy, as well as all
[Document title]
the other elements of the offense of plunder. 18 Respondents also point
out that conspiracy itself is not punishable under the Plunder Law,
which deals with conspiracy as a means of incurring criminal liability. 19
Respondents likewise contend that it is within the inherent powers and
wisdom of the legislature to determine which acts are mala prohibita in
the same way that it can declare punishable an act which is inherently
not criminal in nature.20
In conclusion, Respondents assert that petitioner has failed to overcome
the presumption of constitutionality of R.A. No. 7080.
Petitioner’s Reply
Petitioner, in his Reply to Comment, draws attention to Section 4,
arguing that the provision states the "most important element, which is
the common thread that ties the component acts together: "a pattern of
overt or criminal acts indicative of the overall unlawful scheme or
conspiracy21 and raises the following questions:
(a) Reference is made to a "pattern of overt or criminal acts."
The disjunctive "or" is used. Will a pattern of acts, which
are overt but not criminal in themselves, be indicative of an
overall unlawful scheme or conspiracy?
(b) Under what specific facts or circumstances will a "pattern" be
"indicative" of the overall unlawful scheme or conspiracy?
(c) Under what specific facts or circumstances will the required
"pattern" or "scheme" even be said to be present or to exist?
(d) When is there an "unlawful scheme or conspiracy?" 22
Issues raised in the oral arguments
24
Oral arguments were heard on September 18, 2001. At said hearing, the
Court defined the issues for resolution as follows:
1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING
VAGUE;
2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR
PROVING THE PREDICATE CRIMES OF PLUNDER AND
THEREFORE VIOLATES THE RIGHT OF THE ACCUSED TO DUE
PROCESS; and
3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS
A MALUM PROHIBITUM AND IF SO, WHETHER IT IS WITHIN THE
POWER OF CONGRESS TO SO CLASSIFY THE SAME.23
Thereafter, both parties filed their respective memoranda in which they
discussed the points which they raised in their earlier pleadings and
during the hearing.
I believe that there is merit in the petition.
A penal statute which violates constitutional
guarantees of individual rights is void.
Every law enacted by Congress enjoys a presumption of
constitutionality,24 and the presumption prevails in the absence of
contrary evidence.25 A criminal statute is generally valid if it does not
violate constitutional guarantees of individual rights. 26 Conversely,
when a constitutionally protected right of an individual is in danger
of being trampled upon by a criminal statute, such law must be
struck down for being void.27
One of the fundamental requirements imposed by the Constitution upon
criminal statutes is that pertaining to clarity and definiteness. Statutes,
particularly penal laws, that fall short of this requirement have been
[Document title]
declared unconstitutional for being vague. This "void-for-vagueness"
doctrine is rooted in the basic concept of fairness as well as the due
process clause of the Constitution.
The Constitution guarantees both substantive and procedural due
process28 as well as the right of the accused to be informed of the nature
and cause of the accusation against him. 29 A criminal statute should not
be so vague and uncertain that "men of common intelligence must
necessarily guess as to its meaning and differ as to its application. 30
There are three distinct considerations for the vagueness doctrine. First,
the doctrine is designed to ensure that individuals are properly
warned ex ante of the criminal consequences of their conduct. This "fair
notice" rationale was articulated in United States v. Harriss:31
The constitutional requirement of definiteness is violated by a criminal
statute that fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute. The underlying
principle is that no man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed. 32
Second, and viewed as more important, the doctrine is intended
to prevent arbitrary and discriminatory law enforcement. 33 Vague
laws are invariably "standardless" and as such, they afford too great an
opportunity for criminal enforcement to be left to the unfettered
discretion of police officers and prosecutors. 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 guidance, the
judiciary is arguably placed in the position of usurping the proper
function of the legislature by "making the law" rather than interpreting
it.35
While the dictum that laws be clear and definite does not require
Congress to spell out with mathematical certainty the standards to which
an individual must conform his conduct, 36 it is necessary that statutes
25
provide reasonable standards to guide prospective conduct. 37 And where
a statute imposes criminal sanctions, the standard of certainty is
higher.38 The penalty imposable on the person found guilty of violating
R.A. No. 7080 is reclusion perpetua to death.39 Given such penalty, the
standard of clarity and definiteness required of R.A. No. 7080
is unarguably higher than that of other laws.40
Void-for-vagueness doctrine
applies to criminal laws.
A view has been proffered that "vagueness and overbreadth doctrines are
not applicable to penal laws."41 These two concepts, while related, are
distinct from each other.42 On one hand, the doctrine of overbreadth
applies generally to statutes that infringe upon freedom of speech. 43 On
the other hand, the "void-for-vagueness" doctrine applies to criminal
laws, not merely those that regulate speech or other fundamental
constitutional rights.44 The fact that a particular criminal statute does
not infringe upon free speech does not mean that a facial challenge to the
statute on vagueness grounds cannot succeed.45
As earlier intimated, the "vagueness doctrine" is anchored on the
constitutionally-enshrined right to due process of law. Thus, as in this
case that the "life, liberty and property" of petitioner is involved, the
Court should not hesitate to look into whether a criminal statute has
sufficiently complied with the elementary requirements of definiteness
and clarity. It is an erroneous argument that the Court cannot apply the
vagueness doctrine to penal laws. Such stance is tantamount to saying
that no criminal law can be challenged however repugnant it is to
the constitutional right to due process.
While admittedly, penal statutes are worded in reasonably general terms
to accomplish the legislature’s objective of protecting the public from
socially harmful conduct, this should not prevent a vagueness challenge
in cases where a penal statute is so indeterminate as to cause the
average person to guess at its meaning and application. For if a statute
[Document title]
infringing upon freedom of speech may be challenged for being vague
because such right is considered as fundamental, with more
reason should a vagueness challenge with respect to a penal statute be
allowed since the latter involve deprivation of liberty, and even of
life which, inarguably, are rights as important as, if not more than, free
speech.
It has been incorrectly suggested 46 that petitioner cannot mount a "facial
challenge" to the Plunder Law, and that "facial" or "on its face" challenges
seek the total invalidation of a statute. 47 Citing Broadrick v.
Oklahoma,48 it is also opined that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it is
argued further that "on its face invalidation of statutes has been
described as ‘manifestly strong medicine,’ to be employed ‘sparingly and
only as a last resort.’" A reading of Broadrick, however, shows that the
doctrine involved therein was the doctrine of overbreadth. Its application
to the present case is thus doubtful considering that the thrust at hand
is to determine whether the Plunder Law can survive the vagueness
challenge mounted by petitioner. A noted authority on constitutional law,
Professor Lockhart, explained that "the Court will resolve them
(vagueness challenges) in ways different from the approaches it has
fashioned in the law of overbreadth." 49 Thus, in at least two cases,50 the
U.S. courts allowed the facial challenges to vague criminal statutes even
if these did not implicate free speech
In Kolender v. Lawson,51 petitioners assailed the constitutionality of a
California criminal statute which required persons who loiter or wander
on the streets to provide a credible and reasonable identification and to
account for their presence when requested by a peace officer under
circumstances that would justify a valid stop. The U.S. Supreme Court
held that said statute was unconstitutionally vague on its face within the
meaning of the due process clause of the Fourteenth Amendment
because it encourages arbitrary enforcement by failing to clarify what is
26
contemplated by the requirement that a suspect provide a "credible and
reasonable identification." Springfield vs. Oklahoma52 on the other hand
involved a challenge to a Columbus city ordinance banning certain
assault weapons. The court therein stated that a criminal statute may be
facially invalid even if it has some conceivable application. It went on to
rule that the assailed ordinance’s definition of "assault weapon" was
unconstitutionally vague, because it was "fundamentally irrational and
impossible to apply consistently by the buying public, the sportsman, the
law enforcement officer, the prosecutor or the judge." 53
It is incorrect to state that petitioner has made "little effort to show the
alleged invalidity of the statute as applied to him, as he allegedly "attacks
‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080 under which he is
charged, but also its other provisions which deal with plunder committed
by illegal or fraudulent disposition of government assets (§1(d)(3)),
acquisition of interest in business (§1(d)(4)), and establishment of
monopolies and combinations or implementation of decrees intended to
benefit particular persons or special interests (§ 1(d)(5))." 54 Notably, much
of petitioner’s arguments dealt with the vagueness of the key phrases
"combination or series" and "pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy" which go into the very nature
of the crime for which he is charged.
Taking into consideration that the Plunder Law is a penal statute that
imposes the supreme penalty of death, and that petitioner in this case
clearly has standing to question its validity inasmuch as he has been
charged thereunder and that he has been for sometime now painfully
deprived of his liberty, it behooves this Court to address the challenge on
the validity of R.A. No. 7080.
Men steeped in law find
difficulty in understanding plunder.
The basic question that arises, therefore, is whether the clauses in
Section 2--
[Document title]
combination or series of overt or criminal acts as described in Section
1(d) hereof
and Section 1(d), which provides--
x x x by any combination or series of the following means or similar
schemes:
1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
xxx
6) By taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.
as qualified by Section 4 which also speaks of the "scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth" and of
"a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy," are clear enough that a person "of common
intelligence" need not guess at their meaning and differ as to their
application.
The above raise several difficult questions of meaning which go to the
very essence of the offense, such as:
a. How many acts would constitute a "combination or series?"
b. Must the acts alleged to constitute the "combination or series"
be similar in nature? Note that Section 1(d) speaks of "similar
schemes" while Section 4 speaks of "the scheme" and of "a pattern
of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy."
27
c. Must the "combination or series" of "overt or criminal acts"
involving the aggregate amount of at least P50 million be
conceived as such a scheme or a "pattern of overt or criminal acts"
from inception by the accused?
d. What would constitute a "pattern"? What linkage must there be
between and among the acts to constitute a "pattern"? Need there
be a linkage as to the persons who conspire with one another, and
a linkage as to all the acts between and among them?
e. When Section 4 speaks of "indicative of the overall unlawful
scheme or conspiracy," would this mean that the "scheme" or
"conspiracy" should have been conceived or decided upon in its
entirety, and by all of the participants?
f. When committed in connivance "with members of his family,
relatives by affinity or consanguinity, business associates,
subordinates or other persons" or through "dummies, nominees,
agents, subordinates and/or business associates", would such
fact be part of the "pattern of overt or criminal acts" and of the
"overall unlawful scheme or conspiracy" such that all of those
who are alleged to have participated in the crime of plunder must
have participated in each and every act allegedly constituting the
crime of plunder? And as in conspiracy, conspired together from
inception to commit the offense?
g. Within what time frame must the acts be committed so as to
constitute a "combination or series"?
I respectfully disagree with the majority that "ascertainable standards
and well-defined parameters" are provided in the law 55 to resolve these
basic questions.
Even men steeped in the knowledge of the law are in a quandary as to
what constitutes plunder. The Presiding Justice of the Sandiganbayan,
[Document title]
Justice Francis Garchitorena, admitted that the justices of said court
"have been quarrelling with each other in finding ways to determine
what [they] understand by plunder."56 Senator Neptali Gonzales also
noted during the deliberations of Senate Bill No. 733 that the definition
of plunder under the law is vague. He bluntly declared: "I am afraid
that it might be faulted for being violative of the due process clause and
the right to be informed of the nature and cause of the accusation of an
accused.57 Fr. Bernas, for his part, pointed to several problematical
portions of the law that were left unclarified. He posed the question:
"How can you have a 'series' of criminal acts if the elements that are
supposed to constitute the series are not proved to be criminal?"58
The meanings of "combination" and "series"
as used in R.A. No. 7080 are not clear.
Although the law has no statutory definition of "combination" or "series",
the majority is of the view that resort can be had to the ordinary meaning
of these terms. Thus, Webster's Third New International Dictionary gives
the meaning of "combination": "the result or product or product of
combining: a union or aggregate made of combining one thing with
another."59
In the context of R.A. No. 7080, "combination" as suggested by the
Solicitor General means that at least two of the enumerated acts found in
Section 1(d), i.e., one of any of the enumerated acts, combined with
another act falling under any other of the enumerated means may
constitute the crime of plunder. With respect to the term "series," the
majority states that it has been understood as pertaining to "two or more
overt or criminal acts falling under the same category" 60 as gleaned from
the deliberations on the law in the House of Representatives and the
Senate.
Further, the import of "combination" or "series" can be ascertained, the
majority insists,61 from the following deliberations in the Bicameral
Conference Committee on May 7, 1991:
28
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say, THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL
ACTS AS MENTIONED IN SECTION ONE HEREOF. Now 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
else are included, how about a series of the same act? For example,
through misappropriation, conversion, misuse, will these be included
also?
THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.
REP. ISIDRO: Series.
THE CHAIRMAN (REP. GARCIA): Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
THE CHAIRMAN: (REP. GARCIA): Yes.
REP. ISIDRO: When we say combination, it seems that-
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
THE CHAIRMAN: (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—but
combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we
mean two different acts. It can not be a repetition of the same act.
[Document title]
THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: That’s not series. It’s a combination. Because when we say
combination or series, we seem to say that two or more, ‘di ba?
THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from
the ordinary crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime but we have
here a combination or series of overt or criminal acts. So…
HON. ISIDRO: I know what you are talking about. For example, through
misappropriation, conversion, misuse or malversation of public funds
who raids the public treasury, now, for example, misappropriation, if
there are a series of misappropriations?
xxx
THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…
THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?
THE CHAIRMAN (REP. GARCIA): Series, oo.
REP. ISIDRO: Now, if it is combination, ano, two misappropriations…
THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not
be combination. Series.
REP. ISIDRO: So, it is not a combination?
THE CHAIRMAN (REP. GARCIA): Yes.
29
REP. ISIDRO: When you say "combination", two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAÑADA): Two different.
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha…
REP. ISIDRO: Now a series, meaning, repetition…62
The following deliberations in the Senate are pointed to by the
majority63 to show that the words "combination" and "series" are given
their ordinary meaning:
Senator Maceda. In line of our interpellations that sometimes "one" or
maybe even "two" acts may already result in such a big amount, on line
25, would the Sponsor consider deleting the words "a series of overt or".
To read, therefore: "or conspiracy COMMITTED by criminal acts such
as". Remove the idea of necessitating "a series". Anyway, the criminal
acts are in the plural.
Senator Tañada. That would mean a combination of two or more of the
acts mentioned in this.
The President. Probably, two or more would be….
Senator Maceda. Yes, because ‘a series’ implies several or many’ two or
more.
Senator Tañada. Accepted, Mr. President.
xxx
[Document title]
The President. If there is only one, then he has to be prosecuted under
the particular crime. But when we say ‘acts of plunder’ there should be,
at least, two or more.
Senator Romulo. In other words, that is already covered by existing laws,
Mr. President.64
To my mind, resort to the dictionary meaning of the terms "combination"
and "series" as well as recourse to the deliberations of the lawmakers
only serve to prove that R.A. No. 7080 failed to satisfy the strict
requirements of the Constitution on clarity and definiteness. Note that
the key element to the crime of plunder is that the public officer, by
himself or in conspiracy with others, amasses, accumulates, or acquires
"ill-gotten wealth" through a "combination or series of overt or criminal
acts" as described in Section 1(d) of the law. Senator Gonzales, during
the deliberations in the Senate, already raised serious concern over the
lack of a statutory definition of what constitutes "combination" or
"series", consequently, expressing his fears that Section 2 of R.A. No.
7080 might be violative of due process:
Senator Gonzales. To commit the offense of plunder, as defined in this
Act and while constituting a single offense, it must consist of a series of
overt or criminal acts, such as bribery, extortion, malversation of public
funds, swindling, illegal exaction, and graft or corrupt practices act and
like offenses. Now, Mr. President, I think, this provision, by itself will be
vague. I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of
accusation of an accused. Because, what is meant by "series of overt or
criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the
period of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is robbery in band by
the number of participants therein. In this particular case probably, we
can statutorily provide for the definition of "series" so that two, for
example, would that be already a series? Or, three, what would be the
basis for such determination?65 (Emphasis supplied.)
30
The point raised by Senator Gonzales is crucial and well-taken. I share
petitioner’s observation that when penal laws enacted by Congress make
reference to a term or concept requiring a quantitative definition, these
laws are so crafted as to specifically state the exact number or
percentage necessary to constitute the elements of a crime. To cite a few:
"Band" – "Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have been
committed by a band." (Article 14[6], Revised Penal Code)66
"Conspiracy" – "A conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to
commit it." (Article 8, Revised Penal Code)67
"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed
committed by a syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in carrying
out any unlawful or illegal transaction, enterprise or scheme x x x."
(Section 38, Labor Code)
"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed
committed in large scale if committed against three (3) or more persons
individually or as a group." (Section 38, Labor Code)
"Organized/Syndicated Crime Group" – "[M]eans a group of two or more
persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime." (Article 62 (1)(1a),
Revised Penal Code)68
"Swindling by a Syndicate" – "x x x if the swindling (estafa) is committed
by a syndicate consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme x x x ." (Section 1, P.D. No. 1689) 69
[Document title]

The deliberations of the Bicameral Conference Committee and of the
Senate cited by the majority, consisting mostly of unfinished sentences,
offer very little help in clarifying the nebulous concept of plunder. All that
they indicate is that Congress seemingly intended to hold liable for
plunder a person who: (1) commits at least two counts of any one of the
acts mentioned in Section 1(d) of R.A. No. 7080, in which case, such
person commits plunder by a series of overt criminal acts; or (2) commits
at least one count of at least two of the acts mentioned in Section 1(d), in
which case, such person commits plunder by a combination of overt
criminal acts. Said discussions hardly provide a window as to the exact
nature of this crime.
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the
ordinary --- That’s why I said, that’s a very good suggestion, because if
its’ only one act, it may fall under ordinary crime. But we have here a
combination or series, of overt or criminal acts" (Emphasis supplied). 75
xxx
THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh di…
THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term
"series"?

A closer look at the exchange between Representatives Garcia and Isidro THE CHAIRMAN (REP. GARCIA P) Series, oo.
and Senator Tañada would imply that initially, combination was
intended to mean "two or more means," 70 i.e., "number one and two or REP. ISIDRO. Now, if it is combination, ano, two misappropriations…
number one and something else x x x," 71 "two of the enumerated means
not twice of one enumeration,"72 "two different acts."73 Series would refer THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations will not
to "a repetition of the same act." 74 However, the distinction was again lost be combination. Series.
as can be gleaned from the following:
REP. ISIDRO. So, it is not a combination?
THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but
combination, two acts.
THE CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. So in other words, that’s it. When we say combination, we
REP. ISIDRO. When we say "combination", two different?
mean, two different acts. It can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA P.) Yes.
THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.
THE CHAIRMAN (SEN. TAÑADA) Two different.
REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.
REP. ISIDRO. Two different acts.
THE CHAIRMAN (REP. GARCIA). A series.
THE CHAIRMAN (REP. GARCIA P.) For example, ha…
REP. ISIDRO. That’s not series. It’s a combination. Because when we say
combination or series, we seem to say that two or more, ‘di ba?
REP. ISIDRO. Now a series, meaning, repetition…

31
[Document title]

THE CHAIRMAN (SEN. TAÑADA) Yes. The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)

REP. ISIDRO. With that… The aforequoted deliberations, especially the latter part thereof, would
show a dearth of focus to render precise the definition of the terms.
THE CHAIRMAN (REP. GARCIA P.) Thank you. Phrases were uttered but were left unfinished. The examples cited were
not very definite. Unfortunately, the deliberations were apparently
THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the adjourned without the Committee members themselves being clear on
acts mentioned in paragraphs 1, 3, 4, 5 of Section 2 (d), or… 1 (d) rather, the concept of series and combination.
or a combination of any of the acts mentioned in paragraph 1 alone, or
paragraph 2 alone or paragraph 3 or paragraph 4. Moreover, if "combination" as used in the law simply refers to the
amassing, accumulation and acquisition of ill-gotten wealth amounting
THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which to at least P50 Million through at least two of the means enumerated in
one? Series? Section 1(d), and "series," to at least two counts of one of the modes
under said section, the accused could be meted out the death penalty for
THE CHAIRMAN (SEN. TAÑADA) Series or combination. acts which, if taken separately, i.e., not considered as part of the
combination or series, would ordinarily result in the imposition of
REP. ISIDRO. Which one, combination or series or series or correctional penalties only. If such interpretation would be adopted, the
combination? Plunder law would be so oppressive and arbitrary as to violate due
process and the constitutional guarantees against cruel or inhuman
punishment.77 The penalty would be blatantly disproportionate to the
THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano,
offense. Petitioner’s examples illustrate this absurdity:
Section 2, definition, doon sa portion ng… Saan iyon? As mentioned, as
described…
a. One act of indirect bribery (penalized under Art. 211 of the Revised
Penal Code with prision correccional in its medium and maximum
THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…
periods),
THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.
combined with -
THE CHAIRMAN (REP. GARCIA P.) Okay?
one act of fraud against the public treasury (penalized under Art. 213 of
the Revised Penal Code with prision correccional in its medium period to
REP. ISIDRO. Very good.
prision mayor in its minimum period).
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
equals –
THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.

32
[Document title]
Plunder (punished by reclusion perpetua to death plus forfeiture of
assets under R. A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the
Revised Penal Code with prision correccional in its minimum period or a
fine ranging from P200 to P1,000 or both).
combined with –
one act of establishing a commercial monopoly (penalized under Art. 186
of Revised Penal Code with prision correccional in its minimum or a fine
ranging from P200 to P6,00, or both.
equals –
Plunder (punished by reclusion perpetua to death, and forfeiture of
assets under R.A. 7080).
c. One act of possession of prohibited interest by a public officer
(penalized with prision correccional in its minimum period or a fine of
P200 to P1,000, or both under Art. 216 of the Revised Penal Code).
combined with –
one act of combination or conspiracy in restraint of trade (penalized
under Art. 186 of the Revised Penal Code with prision correccional in its
minimum period, or a fine of P200 to P1,000, or both),
equals –
plunder (punished by reclusion perpetua to death, and forfeiture of
assets).78
The argument that higher penalties may be imposed where two or more
distinct criminal acts are combined and are regarded as special complex
33
crimes, i.e., rape with homicide, does not justify the imposition of the
penalty of reclusion perpetua to death in case plunder is committed.
Taken singly, rape is punishable by reclusion perpetua;79 and homicide,
by reclusion temporal.80 Hence, the increase in the penalty imposed
when these two are considered together as a special complex crime is not
too far from the penalties imposed for each of the single offenses. In
contrast, as shown by the examples above, there are instances where the
component crimes of plunder, if taken separately, would result in the
imposition of correctional penalties only; but when considered as forming
part of a series or combination of acts constituting plunder, could be
punishable by reclusion perpetua to death. The disproportionate increase
in the penalty is certainly violative of substantive due process and
constitute a cruel and inhuman punishment.
It may also be pointed out that the definition of "ill-gotten wealth" in
Section 1(d) has reference to the acquisition of property (by the accused
himself or in connivance with others) "by any combination or series" of
the "means" or "similar schemes" enumerated therein, which include the
following:
xxx
4. By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other forms of interest or participation including the
promise of future employment or any business enterprise or
undertakings;
5. By establishing agricultural, industrial or commercial monopolies or
other combination and/or implementation of decrees and orders
intended to benefit particular persons or special interests;
xxx
The above-mentioned acts are not, by any stretch of the imagination,
criminal or illegal acts. They involve the exercise of the right to liberty
[Document title]
and property guaranteed by Article III, Section 1 of the Constitution
which provides that "No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied the
equal protection of the laws." Receiving or accepting any shares of stock
is not per se objectionable. It is in pursuance of civil liberty, which
includes "the right of the citizen to be free to use his faculties in all
lawful ways; x x x to earn his livelihood by any lawful calling; to pursue
any avocation, and/or that purpose, to enter into all contracts which
may be proper, necessary and essential to his carrying out these
purposes to a successful conclusion.81 Nor is there any impropriety,
immorality or illegality in establishing agricultural, industrial or
commercial monopolies or other combination and/or implementation of
decrees and orders even if they are intended to benefit particular persons
or special interests. The phrases "particular persons" and "special
interests" may well refer to the poor, 82 the indigenous cultural
communities,83 labor,84 farmers,85 fisherfolk,86 women,87 or those
connected with education, science and technology, arts, culture and
sports.88
In contrast, the monopolies and combinations described in Article 186 of
the Revised Penal Code are punishable because, as specifically defined
therein, they are "on restraint of trade or commerce or to prevent by
artificial means of free competition in the market, or the object is "to alter
the price" of any merchandise "by spreading false rumors," or to
manipulate market prices in restraint of trade. There are no similar
elements of monopolies or combinations as described in the Plunder Law
to make the acts wrongful.
If, as interpreted by the Solicitor General, "series" means a "repetition" or
pertains to "two or more" acts, and "combination as defined in the
Webster’s Third New International Dictionary is "the result or product of
combining one thing with another," 89 then, the commission of two or
more acts falling under paragraphs (4) and (5) of Section 1(d) would
make innocent acts protected by the Constitution as criminal, and
punishable by reclusion perpetua to death.
34
R.A. No. 7080 does not define "pattern,"
an essential element of the crime of plunder.
Granting arguendo that, as asserted by the majority, "combination" and
"series" simplistically mean the commission of two or more of the acts
enumerated in Section 1(d),90 still, this interpretation does not cure the
vagueness of R.A. No. 7080. In construing the definition of "plunder,"
Section 2 of R.A. No. 7080 must not be read in isolation but rather, must
be interpreted in relation to the other provisions of said law. It is a basic
rule of statutory construction that to ascertain the meaning of a law, the
same must be read in its entirety. 91 Section 1 taken in relation to Section
4 suggests that there is something to plunder beyond simply the number
of acts involved and that a grand scheme to amass, accumulate or
acquire ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1
and 2 pertain only to the nature and quantitative means or acts by which
a public officer, by himself or in connivance with other persons,
"amasses, accumulates or acquires ill-gotten wealth." Section 4, on the
other hand, requires the presence of elements other than those
enumerated in Section 2 to establish that the crime of plunder has been
committed because it speaks of the necessity to establish beyond
reasonable doubt a "pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy."
Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty
Million Pesos and that this was acquired by any two or more of the acts
described in Section 1(d); it is necessary that these acts constitute a
"combination or series" of acts done in furtherance of "the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth", and which
constitute "a pattern of overt or criminal acts indicative of the overall
scheme or conspiracy."
That pattern is an essential element of the crime of plunder is evident
from a reading of the assailed law in its entirety. It is that which would
distinguish plunder from isolated criminal acts punishable under the
Revised Penal Code and other laws, for without the existence a "pattern
of overt or criminal acts indicative of the overall scheme or conspiracy" to
[Document title]
acquire ill-gotten wealth, a person committing several or even all of the
acts enumerated in Section 1(d) cannot be convicted for plunder, but
may be convicted only for the specific crimes committed under the
pertinent provisions of the Revised Penal Code or other laws.
For this reason, I do not agree that Section 4 is merely a rule of evidence
or a rule of procedure. It does not become such simply because its
caption states that it is, although its wording indicates otherwise. On the
contrary, it is of substantive character because it spells out a distinctive
element of the crime which has to be established, i.e., an overall unlawful
"scheme or conspiracy" indicated by a "pattern of overt or criminal acts"
or means or similar schemes "to amass, accumulate or acquire ill-gotten
wealth."
The meaning of the phrase "pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy," however, escapes me. As in
"combination" and "series," R.A. No. 7080 does not provide a definition of
"pattern" as well as "overall unlawful scheme." Reference to the legislative
history of R.A. No. 7080 for guidance as to the meanings of these
concepts would be unavailing, since the records of the deliberations in
Congress are silent as to what the lawmakers mean by these terms.
Resort to the dictionary meanings of "pattern" and "scheme" is, in this
case, wholly inadequate. These words are defined as:
pattern: an arrangement or order of things or activity. 92
scheme: design; project; plot.93
At most, what the use of these terms signifies is that while multiplicity of
the acts (at least two or more) is necessary, this is not sufficient to
constitute plunder. As stated earlier, without the element of "pattern"
indicative of an "overall unlawful scheme," the acts merely constitute
isolated or disconnected criminal offenses punishable by the Revised
Penal Code or other special laws.
35
The commission of two or more of the acts falling under Section 1(d) is no
guarantee that they fall into a "pattern" or "any arrangement or order." It
is not the number of acts but the relationship that they bear to each
other or to some external organizing principle that renders them
"ordered" or "arranged":
A pattern is an arrangement or order of things, or activity, and the mere
fact that there are a number of predicates is no guarantee that they fall
into an arrangement or order. It is not the number of predicates but the
relationship that they bear to each other or to some external organizing
principle that renders them ‘ordered’ or ‘arranged.’  94
In any event, it is hardly possible that two predicate acts can form a
pattern:
The implication is that while two acts are necessary, they may not be
sufficient. Indeed, in common parlance, two of anything will not generally
form a ‘pattern.’95
In H. J. Inc. v. Northwestern Bell Telephone Co. et al. 96 (hereinafter
referred to as Northwestern), the U.S. Court reiterated the foregoing
doctrine:
xxx Nor can we agree with those courts that have suggested that a
pattern is established merely by proving two predicate acts. 97
Respondents’ metaphorical illustration of "pattern" as a wheel with
spokes (the overt or criminal acts of the accused) meeting at a common
center (the acquisition of ill-gotten wealth) and with a rim (the overall
unlawful scheme or conspiracy) of the wheel enclosing the spokes, is off
tangent. Their position that two spokes suffice to make a wheel, even
without regard to the relationship the spokes bear to each other clearly
demonstrates the absurdity of their view, for how can a wheel with only
two spokes which are disjointed function properly?
[Document title]
That "pattern" is an amorphous concept even in U.S. jurisprudence
where the term is reasonably defined is precisely the point of the incisive
concurring opinion of Justice Antonin Scalia in Northwestern where he
invited a constitutional challenge to the RICO law on "void-for-
vagueness" ground.98 The RICO law is a federal statute in the United
States that provides for both civil and criminal penalties for violation
therefor. It incorporates by reference twenty-four separate federal crimes
and eight types of state felonies. 99 One of the key elements of a RICO
violation is that the offender is engaged in a "pattern of racketeering
activity."100 The RICO law defines the phrase "pattern of racketeering
activity" as requiring "at least two acts of racketeering activity, one of
which occurred after the effective date of 18 USCS § 1961, and within ten
years (excluding any period of imprisonment) after the commission of a
prior act of racketeering activity." 101 Incidentally, the Solicitor General
claims that R.A. No. 7080 is an entirely different law from the RICO law.
The deliberations in Congress reveal otherwise. As observed by Rep.
Pablo Garcia, Chairman of the House of Representatives Committee on
Justice, R.A. No. 7080 was patterned after the RICO law.102
In Northwestern, conceding that "[the U.S. Congress] has done nothing . .
. further to illuminate RICO’s key requirement of a pattern of
racketeering," the U.S. Supreme Court, through Justice William J.
Brennan, Jr., undertook the task of developing a meaningful concept of
"pattern" within the existing statutory framework. 103 Relying heavily on
legislative history, the US Supreme Court in that case construed
"pattern" as requiring "continuity plus relationship." 104 The US Supreme
Court formulated the "relationship requirement" in this wise: "Criminal
conduct forms a pattern if it embraces criminal acts that have the same
or similar purposes, results, participants, victims, or methods of
commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events."105 Continuity is clarified as
"both a closed and open-ended concept, referring either to a closed
period of repeated conduct, or to past conduct that by its nature projects
into the future with a threat of repetition."106
36
In his separate concurring opinion, Justice Scalia rejected the majority’s
formulation. The "talismanic phrase" of "continuity plus relationship" is,
as put by Justice Scalia, about as helpful as advising the courts that "life
is a fountain." He writes:
x x x Thus, when §1961(5) says that a pattern "requires at least two acts
of racketeering activity" it is describing what is needful but not sufficient.
(If that were not the case, the concept of "pattern" would have been
unnecessary, and the statute could simply have attached liability to
"multiple acts of racketeering activity"). But what that something more is,
is beyond me. As I have suggested, it is also beyond the Court. Today’s
opinion has added nothing to improve our prior guidance, which has
created a kaleidoscope of Circuit positions, except to clarify that RICO
may in addition be violated when there is a "threat of continuity." It
seems to me this increases rather than removes the vagueness. There is
no reason to believe that the Court of Appeals will be any more unified in
the future, than they have in the past, regarding the content of this law.
That situation is bad enough with respect to any statute, but it is
intolerable with respect to RICO. For it is not only true, as Justice
Marshall commented in Sedima, S.P.R.L. vs. Imrex Co., 473 U.S. 479 x x
x, that our interpretation of RICO has "quite simply revolutionize[d]
private litigation" and "validate[d] the federalization of broad areas of
state common law of frauds," x x x so that clarity and predictability in
RICO’s civil applications are particularly important; but it is also true
that RICO, since it has criminal applications as well, must, even in its
civil applications, possess the degree of certainty required for criminal
laws x x x. No constitutional challenge to this law has been raised in the
present case, and so that issue is not before us. That the highest court in
the land has been unable to derive from this statute anything more than
today’s meager guidance bodes ill for the day when that challenge is
presented.107
It bears noting that in Northwestern the constitutionality of the RICO law
was not challenged.108 After Northwestern, the U.S. Supreme Court has
[Document title]
so far declined the opportunity to hear cases in which the void-for-
vagueness challenge to the pattern requirement was raised. 109
Admittedly, at the district courts level, the state statutes (referred to as
Little RICOS)110 have so far successfully survived constitutional challenge
on void-for-vagueness ground. However, it must be underscored
that, unlike R.A. No. 7080, these state anti-racketeering laws have
invariably provided for a reasonably clear, comprehensive and
understandable definition of "pattern."111 For instance, in one state,
the pattern requirement specifies that the related predicate acts must
have, among others, the same or similar purpose, result, principal,
victims or methods of commission and must be connected with
"organized crime.112 In four others, their pattern requirement provides
that two or more predicate acts should be related to the affairs of the
enterprise, are not isolated, are not closely related to each other and
connected in point of time and place, and if they are too closely related,
they will be treated as a single act. 113 In two other states, pattern
requirements provide that if the acts are not related to a common
scheme, plan or purpose, a pattern may still exist if the participants have
the mental capacity required for the predicate acts and are associated
with the criminal enterprise.114
All the foregoing state statutes require that the predicate acts be
related and that the acts occur within a specified time frame.
Clearly, "pattern" has been statutorily defined and interpreted in
countless ways by circuit courts in the United States. Their divergent
conclusions have functioned effectively to create variant criminal
offenses.115 This confusion has come about notwithstanding that almost
all these state laws have respectively statutorily defined "pattern". In
sharp contrast, R.A. No. 7080, as earlier pointed out, lacks such
crucial definition. As to what constitutes pattern within the meaning of
R.A. No. 7080 is left to the ad hoc interpretation of prosecutors and
judges. Neither the text of R.A. No. 7080 nor legislative history afford any
guidance as to what factors may be considered in order to prove beyond
37
reasonable doubt "pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy."
Be that as it may, it is glaringly fallacious to argue that "series" simply
means a "repetition" or "pertaining to two or more" and "combination" is
the "result or product or product of combining." Whether two or more or
at least three acts are involved, the majority would interpret the phrase
"combinations' or "series" only in terms of number of acts committed.
They entirely overlook or ignore Section 4 which requires "a pattern of
overt of criminal acts indicative of the overall unlawful scheme or
conspiracy" to convict.
If the elements of the offense are as what the majority has suggested, the
crime of plunder could have been defined in the following manner:
Where a public official, by himself or in conspiracy with others, amasses
or acquires money or property by committing two or more acts in
violation of Section 3 of the Anti-Graft and Corrupt Practices Act (R.A.
3019), or Articles 210, 211, 212, 213, 214, 215, 216 and 217 of the
Revised Penal Code, he shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death.
The above would be a straightforward and objective definition of the
crime of plunder. However, this would render meaningless the core
phrases "a combination or series of" "overt or criminal acts indicative of
the overall unlawful scheme or conspiracy," or the phrase "any
combination or series of the following means or similar schemes" or "a
pattern of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy."
But that obviously is not the definition of the crime of plunder under R.A.
7080. There is something more. A careful reading of the law would
unavoidably compel a conclusion that there should be a connecting link
among the "means or schemes" comprising a "series or combination" for
the purpose of acquiring or amassing "ill-gotten wealth." The bond or link
[Document title]
is an "overall unlawful scheme or conspiracy mentioned in Section 4. The
law contemplates a combination or series of criminal acts in plunder
done by the accused "in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth." It does not postulate
acts committed randomly, separately or independently or
sporadically. Otherwise stated, if the legislature intended to define
plunder as the acquisition of ill-gotten wealth in the manner espoused by
the majority, the use in R.A. 7080 of such words and phrases as
"combination" and "series of overt or criminal acts" xxx "in furtherance of
the scheme or conspiracy" is absolutely pointless and meaningless.
R.A. No. 7080 makes it possible for a person
conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.
Section 2 of R.A. No. 7080 states that "[a]ny person who participated
with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court." Both parties
share the view that the law as it is worded makes it possible for a person
who participates in the commission of only one of the component crimes
constituting plunder to be liable as co-conspirator for plunder, not
merely the component crime in which he participated. 116 While petitioner
concedes that it is easy to ascertain the penalty for an accomplice or
accessory under R.A. No. 7080, such is not the case with respect to a co-
principal of the accused.117 In other words, a person who conspires with
the accused in the commission of only one of the component crimes may
be prosecuted as co-principal for the component crime, or as co-principal
for the crime of plunder, depending on the interpretation of the
prosecutor. The unfettered discretion effectively bestowed on law
enforcers by the aforequoted clause in determining the liability of the
participants in the commission of one or more of the component crimes
38
of a charge for plunder undeniably poses the danger of arbitrary
enforcement of the law.118
R.A. No. 7080 does not clearly state
the prescriptive period of the crime of plunder.
Section 6 of R.A. No. 7080 provides that the crime punishable under said
Act shall prescribe in twenty (20) years. Considering that the law was
designed to cover a "combination or series of overt or criminal acts," or "a
pattern of overt or criminal acts," from what time shall the period of
prescription be reckoned? From the first, second, third or last act of the
series or pattern? What shall be the time gap between two succeeding
acts? If the last act of a series or combination was committed twenty or
more years after the next preceding one, would not the crime have
prescribed, thereby resulting in the total extinction of criminal liability
under Article 89(b) of the Revised Penal Code? In antithesis, the RICO
law affords more clarity and definiteness in describing "pattern of
racketeering activity" as "at least two acts of racketeering activity, one of
which occurred within ten years (excluding any period of imprisonment)
after the commission of a prior act of racketeering activity." 119119 119 The
U.S. state statutes similarly provide specific time frames within which
racketeering acts are committed.
The Solicitor General enjoins the Court to rectify the deficiencies in the
law by judicial construction. However, it certainly would not be feasible
for the Court to interpret each and every ambiguous provision without
falling into the trap of judicial legislation. A statute should be
construed to avoid constitutional question only when an alternative
interpretation is possible from its language. 120 Borrowing from the
opinion of the court121 in Northwestern,122 the law "may be a poorly
drafted statute; but rewriting it is a job for Congress, if it so inclined,
and not for this Court." But where the law as the one in question is void
on its face for its patent ambiguity in that it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ as to its application, the Court cannot breathe life to
it through the guise of construction.
[Document title]
R.A. No. 7080 effectively eliminates mens rea
or criminal intent as an element of the crime of plunder.
Section 4 provides that for the purpose of establishing the crime of
plunder, "it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy."
The majority would interpret this section to mean that the prosecution
has the burden of "showing a combination or series resulting in the
crime of plunder." And, once the minimum requirements for a
combination or a series of acts are met, there is no necessity for the
prosecution to prove each and every other act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate, or
acquire ill-gotten wealth.123
By its language, Section 4 eliminates proof of each and every component
criminal act of plunder by the accused and limits itself to establishing
just the pattern of overt or criminal acts indicative of unlawful scheme or
conspiracy. The law, in effect, penalizes the accused on the basis of a
proven scheme or conspiracy to commit plunder without the necessity of
establishing beyond reasonable doubt each and every criminal act done
by the accused in the crime of plunder. To quote Fr. Bernas again: "How
can you have a ‘series’ of criminal acts if the elements that are supposed
to constitute the series are not proved to be criminal?" 124
Moreover, by doing away with proof beyond reasonable doubt of each and
every criminal act done by the accused in the furtherance of the scheme
or conspiracy to acquire ill-gotten wealth, it being sufficient just to prove
a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy, the Plunder Law effectively eliminated the mens
rea or criminal intent as an element of the crime. Because of this, it is
easier to convict for plunder and sentence the accused to death than to
39
convict him for each of the component crimes otherwise punishable
under the Revised Penal Code and other laws which are bailable offenses.
The resultant absurdity strikes at the very heart if the constitutional
guarantees of due process and equal protection.
Plunder is a malum in se.
The acts enumerated in Section 1(d) are mostly defined and penalized by
the Revised Penal Code, e.g. malversation, estafa, bribery and other
crimes committed by public officers. As such, they are by nature mala in
se crimes. Since intent is an essential element of these crimes, then, with
more reason that criminal intent be established in plunder which, under
R.A. No. 7659, is one of the heinous crimes 125 as pronounced in one of its
whereas clauses.126
The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made
criminal by special law does not necessarily make the same mala
prohibita where criminal intent is not essential, although the term refers
generally to acts made criminal by special laws. For there is a marked
difference between the two. According to a well-known author on
criminal law:
There is a distinction between crimes which are mala in se, or wrongful
from their nature, such as theft, rape, homicide, etc., and those that
are mala prohibita, or wrong merely because prohibited by statute, such
as illegal possession of firearms.
Crimes mala in se are those so serious in their effects on society as to
call for almost unanimous condemnation of its members; while
crimes mala prohibita are violations of mere rules of convenience
designed to secure a more orderly regulation of the affairs of society.
(Bouvier’s Law Dictionary, Rawle’s 3rd Revision)
[Document title]
(1) In acts mala in se, the intent governs; but in those mala prohibit the
only inquiry is, has the law been violated? (People vs. Kibler, 106 N.Y.,
321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited for
reasons of public policy, as in illegal possession of firearms. (People vs.
Conosa, C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies defined and penalized
by the Revised Penal Code. When the acts are inherently immoral, they
are mala in se, even if punished by special laws. On the other hand,
there are crimes in the Revised Penal Code which were originally defined
and penalized by special laws. Among them are possession and use of
opium, malversation, brigandage, and libel. 127
The component acts constituting plunder, a heinous crime, being
inherently wrongful and immoral, are patently mala in se, even if
punished by a special law and accordingly, criminal intent must clearly
be established together with the other elements of the crime; otherwise,
no crime is committed. By eliminating mens rea, R.A. 7080 does not
require the prosecution to prove beyond reasonable doubt the component
acts constituting plunder and imposes a lesser burden of proof on the
prosecution, thus paving the way for the imposition of the penalty
of reclusion perpetua to death on the accused, in plain violation of the
due process and equal protection clauses of the Constitution. Evidently,
the authority of the legislature to omit the element of scienter in the proof
of a crime refers to regulatory measures in the exercise of police power,
where the emphasis of the law is to secure a more orderly regulations of
the offense of society, rather than the punishment of the crimes. So that
in mala prohibita prosecutions, the element of criminal intent is a
requirement for conviction and must be provided in the special law
penalizing what are traditionally mala in se crimes. As correctly pointed
out by petitioner,128 citing U.S. Supreme Court decisions, the Smith Act
was ruled to require "intent" to advocate 129 and held to require knowledge
of illegal advocacy.130 And in another case,131 and ordinance making
40
illegal the possession of obscene books was declared unconstitutional for
lack of scienter requirement.
Mens rea is a substantive due process requirement under the
Constitution, and this is a limitation on police power. Additionally, lack
of mens rea or a clarifying scienter requirement aggravates the vagueness
of a statute.
In Morisette v. U.S.132 the U.S. Supreme Court underscored the
stultifying effect of eliminating mens rea, thus:
The Government asks us by a feat of construction radically to change the
weights and balances in the scales of justice. The purpose and obvious
effect of doing away with the requirement of a guilty intent is to ease the
prosecution’s party to conviction, to strip the defendant of such benefit
as he derived at common law from innocence of evil purpose, and to
circumscribe the freedom heretofore allowed juries. Such a manifest
impairment of the immunities of the individual should not be extended to
common law crimes on judicial initiative.
In the same breath, Justice Florenz Regalado expreses serious doubts as
to the authority of the legislature to complex mala in se crimes with mala
prohibita, saying:
x x x although there has been a tendency to penalize crimes under
special laws with penalties "borrowed" from the Code, there is still the
question of legislative authority to consolidate crimes punished under
different statutes. Worse, where one is punished under the Code and the
other by the special law, both of these contingencies had not been
contemplated when the concept of a delito complejo was engrafted into
the Code.133
Petitioner is not estopped from questioning
the constitutionality of R.A. No. 7080.
[Document title]
The case at bar has been subject to controversy principally due to the
personalities involved herein. The fact that one of petitioner’s
counsels134 was a co-sponsor of the Plunder Law 135 and petitioner himself
voted for its passage when he was still a Senator would not in any put
him in estoppel to question its constitutionality. The rule on estoppel
applies to questions of fact, not of law. 136 Moreover, estoppel should be
resorted to only as a means of preventing injustice. 137 To hold that
petitioner is estopped from questioning the validity of R.A. No. 7080
because he had earlier voted for its passage would result in injustice not
only to him, but to all others who may be held liable under this statute.
In People vs. Vera,138 citing the U.S. case of Attorney General v.
Perkins, the Court held:
x x x The idea seems to be that the people are estopped from questioning
the validity of a law enacted by their representatives; that to an
accusation by the people of Michigan of usurpation upon their
government, a statute enacted by the people of Michigan is an 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 justify
action under it it had never been enacted. the constitution is the
supreme law, and to its behests the courts, the legislature, and the
people must bow. x x x139
The Court should not sanction the use of an equitable remedy to defeat
the ends of justice by permitting a person to be deprived of his life and
liberty under an invalid law.
Undoubtedly, the reason behind the enactment of R.A. 7080 is
commendable. It was a response to the felt need at the time that existing
laws were inadequate to penalize the nature and magnitude of corruption
that characterized a "previous regime." 140 However, where the law, such
as R.A. 7080, is so indefinite that the line between innocent and
condemned conduct becomes a matter of guesswork, the indefiniteness
runs afoul of due process concepts which require that persons be given
full notice of what to avoid, and that the discretion of law enforcement
officials, with the attendant dangers of arbitrary and discriminatory
41
enforcement, be limited by explicit legislative standards. 141 It obfuscates
the mind to ponder that such an ambiguous law as R.A. No. 7080 would
put on the balance the life and liberty of the accused against whom all
the resources of the State are arrayed. It could be used as a tool against
political enemies and a weapon of hate and revenge by whoever wields
the levers of power.
I submit that the charge against petitioner in the Amended Information
in Criminal Case No. 26558 does not constitute "plunder" under R.A. No.
7080, as amended by R.A. No. 7659. If at all, the acts charged may
constitute offenses punishable under the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019) or the Revised Penal Code. Hence, the
information charging petitioner with plunder must be quashed. Such
quashal, however, should be without prejudice to the filing of new
informations for acts under R.A. No. 3019, of the Revised Penal Code and
other laws. Double jeopardy would not bar the filing of the same because
the dismissal of the case is made with the express consent of the
petitioner-accused.142
In view of the foregoing, I vote to GRANT the petition.
Footnotes
1
 Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his
column "Sounding Board", Today, September 26, 2001, p. 6.
2
 An Act to Impose the Death Penalty on Certain Heinous Crimes,
amending for that purpose the Revised Penal Code and Other
Special Penal Laws, namely: Dangerous Drugs Act, Crime of
Plunder, and Anti-Carnapping Act (1993).
3
 87 O.G. 38, pp. 5488-5490 (1991).
[Document title]
4
 Annex "C" of Petition.
5
 Amended Petition, p. 8.
6
 Section 1(d).
7
 Memorandum for Petitioner, p.11.
8
 Amended Petition., pp. 13-17; Memorandum for Petitioner, pp.
16-24.
According to petitioners:
a. While American federal courts in the First Circuit in the
U.S. have defined "series of acts or transactions" for
purposes of Rule 8(b) of the Federal Rules of Criminal
Procedure to refer only to "joint criminal enterprise" [U.S.
v. Turkette (1980, CA 1 Mass. 632 F 2d 896)] under
a common scheme [U.S. v. J. Tirocchi & Sons, Inc. (1960
DC RI) 187 F. Supp. 778], the courts in the Second
Circuit insist that "series of acts and transactions" should
mean that there should be "connection between the
offenses" [U.S. v. Charney (1962, SD BY) 211 F. Supp. 904]
or "direct relationship between counts" [U.S. v.
Haim (1963 SD NY), 218 F. Supp. 922] or "substantial
identity of facts and participants" [U.S. v. Olin Corp.
(1979, WD NY), 465 S. Supp. 1120].
b. Still on the U.S. Federal courts, the courts in the Third
Circuit define "series of acts" following the "direct
relationship between acts" standard of the Second Circuit;
for example, U.S. v. Stafford (1974, ED Pa.), 382 F. Supp.
1401) using "factual relationship between acts"; U.S. v.
Slawik (1975, DC Del.) 408 F. Supp. 190, using
"connection between charges"; U.S. v. Cohen (1978, ED
42
Pa.) 444 F. Supp. 1314, using "direct relationship
between offenses"; and U.S. v. Serubo (1978, ED Pa.) 460
F. Supp. 689), using "direct relationship between
offenses", but the federal courts in the Fourth
Circuit follow the "common scheme" standard, as in Rakes
v. U.S. (169 F2d 730).
c. The Sixth Circuit courts define "series" to mean
"common scheme" (e.g. U.S. v. Russo (480 F2d 1228) and
so do the courts in the Seventh Circuit (e.g. U.S. v. Scott,
(1969, CA 7 Ill.) (413 F2d 932), and Eighth Circuit
Courts (e.g. Haggard v. U.S. (1966, CA 8 Mo.) 369 F2d
968), but the courts in the Fifth Circuit follow the "close
connection between acts" standard, (e.g. U.S. v. Laca
(1974 CA 5 Tex) 593 F2d 615) or "substantial identity of
facts and participants" (e.g. U.S. v. Levine (1977 CA 5 Fla.)
546 F2d 658; U.S. v. Marionneaux (1975 CA 5 La.) 514 F2d
1244) together with federal courts in the Ninth Circuit (e.g.
U.S. v. Ford (1980 CA 9 Cal..) 632 F2d 1354) and those in
the District of Columbia Circuit (U.S. v. Jackson (1977)
562 F2d 789; U.S. v. Bachman, (1958 DC Dist. Col.) 164 F.
Suppl. 898). [Amended Petition, pp. 14-16; Memorandum
for Petitioner, pp. 20-22.]
9
 Amended Petition, pp. 18-19; Memorandum for Petitioner, pp.
34-45.
10
 Id., at 13-14; Id., at 19.
11
 Id., at 16-17; Id., at 23.
12
 Id., at 25-34.
13
 Id., at 27-31;Id., at. 66-76.
[Document title]

14
 Id., at 27-35; Id.,. at 76-83. x x x What then is the standard of due process which must
exist both as a procedural and a substantive requisite to
15
 Comment, pp. 11-13; Memorandum for Respondents, pp. 30-32. free the challenged ordinance, or any governmental action
for that matter, from the imputation of legal infirmity
16
 Ibid.; Id., at 49-50. sufficient to spell its doom? It is responsiveness to the
supremacy of reason, obedience to the dictates of justice.
17
 Id., at 13-25; Id., at 58-59. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official
18
 Id., at 28-33; Id.., at 70-77. action, to paraphrase Cardozo, must not outrun the bounds
of reason and result in sheer oppression. Due process is
19 thus hostile to any official action marred by lack of
 Id., at 33-34.
reasonableness. Correctly it has been identified as freedom
20 from arbitrariness. It is the embodiment of the sporting idea
 Comment, pp. 37-42; Memorandum for Respondents, pp. 82-84.
of fair play. It exacts fealty 'to those strivings for justice' and
21
judges the act of officialdom of whatever branch 'in the light
 Reply to Comment, p. 12. of reason drawn from considerations of fairness that reflect
22
[democratic] traditions of legal and political thought.' It is
 Id., at 14-15. not a narrow or 'technical conception with fixed content
unrelated to time, place and circumstances,' decisions
23
 TSN, Hearing on oral arguments, September 18, 2001, pp. 2-3. based on such a clause requiring a 'close and perceptive
inquiry into fundamental principles of our society."
24
 Tan vs. People, 290 SCRA 117 (1998); see also Padilla vs. Court Questions of due process are not to be treated narrowly or
of Appeals, 269 SCRA 402 (1997). pedantically in slavery to form or phrases (at pp. 860-861).
25
 Morfe vs. Mutuc, 22 SCRA 424 (1968). 29
 ART. III, Section 14.
26
 State v. Vogel, 467 N.W.2d 86 (1991). 30
 People v. Nazario, 165 SCRA 186 (1988).
27
 See Id. 31
 347 U.S. 612 (1954).
28
 ART. III, Sections 1, 12 and 14. 32
 Id., at 617.

In Ermita-Malate Hotel and Motel Operators Association, Inc. 33

 Kolender v. Lawson, 461 U.S. 352 (1983).
vs. City Mayor of Manila (20 SCRA 849 [1967]), the Court
expounded on the concept of due process as follows: 34
 Ibid.

43
[Document title]

35
 See Grayned v. City of Rockford, 408 U.S. 104 (1972). (2nd) [1998], p. 1033 citing Lanzetta v. New Jersey, 306 U.S. 451
[1939]. See also Springfield Armory, Inc. v City of Columbus, 29
36
 Ibid. F.3d 250, 1994 FED App 239P [6th Cir. 1994]; Connally v.
General Construction Company, 269 U.S. 385 [1926]; Lambert v.
37
 Kolender, supra. California, 355 U.S. 225 [1957]; Kolender v. Lawson, 461 U.S.
352 [1953].
38
 Ibid.
48
 413 U.S. 601 [1973].
39
 Section 2.
49
 VAGUENESS AND OVERBREADTH, AN OVERVIEW, Lockhart et
40
 See FCC v. American Broadcasting Co., 347 US 284 (1954). al. Constitutional Law, Cases-Comments-Questions [6th Ed,
1986], p. 740.
41
 See Dissenting Opinion of Justice Vicente V. Mendoza, pp. 10- 50
12.  Springfield v. Oklahoma, supra; Kolender v. Lawson, supra.

51
42
 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH –  Supra.
THE VOID FOR VAGUE DOCTRINE, American Constitutional Law
52
(2nd) (1998), p. 1033 citing Lanzetta v. New Jersey, 306 U.S. 451  Supra.
(1939). See also Springfield Armory, Inc. v City of Columbus, 29
53
F.3d 250, 1994 FED App 239P (6th Cir. 1994); Connally v.  At p. 253.
General Construction Company, 269 U.S. 385 (1926); Lambert v.
54
California, 355 U.S. 225 1957); Kolender v. Lawson, supra.  See Concurring Opinion of Justice Mendoza, p. 5.

43 55
 THE OVERBREADTH DOCTRINE, Treatise on Constitutional  See Decision, p. 7.
Law – Substance and Procedure, Vol. IV (1992), pp. 25-31; 36-37.
56
 The transcript of Stenographic Notes of the Hearing in Criminal
44
 See Note 42. Case No. 26561 on June 13, 2001, p. 16 reads:

45
 Springfield Armory, Inc. v City of Columbus, supra. PJ Garchitorena:

46
 See Concurring Opinion of Justice Vicente V. Mendoza, pp. 10- xxx
12.
But you see, I will provoke you. Forgive us for provoking
47
 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – you, but we ourselves have been quarrelling with each other
THE VOID FOR VAGUE DOCTRINE, American Constitutional Law

44
[Document title]
in finding ways to determine what we understand by
plunder.
xxx
57
 Infra.
58
 In his column on the April 25, 2001 issue of Today, Fr. Bernas
stated:
xxx
One question that has come up is whether a public official
can commit more than one crime of plunder during his or
her incumbency. There are those who hold that the law
describes only one crime and that it cannot be split into
several offenses. This would mean that the prosecution
must weave a web of offenses out of the six ways of illegally
amassing wealth and show how the various acts reveal a
combination or series of means or schemes which reveal a
pattern of criminality. My understanding is that under such
a reading the six ways of amassing wealth should not be
seen as separate from each other but must be shown to be
parts of one combination or scheme. The interrelationship
of the separate acts must be shown.
An alternate reading of the law, which is perhaps easier to
prove but harsher on the accused, is that each one of the
six ways of amassing wealth can constitute plunder if the
total take adds up to the required P75 million.
xxx
There is another provision in the law which I find
intriguing. It says: "For purposes of establishing the crime
45
of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt criminal acts indicative
of the overall unlawful scheme or conspiracy." Is this an
indication that there is only one crime of plunder under the
statute?
Fr. Bernas also discussed the vagueness of "combination"
or "series" in the July 1, 2001 issue of Today:
Taken individually, the elements that are supposed to
constitute the series can be well understood. But now the
Estrada lawyers are asking when precisely these elements
constitute a "combination or series". The question is
important because of an intriguing provision in the plunder
law: "For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable
doubt a pattern of overt criminal acts indicative of the
overall unlawful scheme or conspiracy." How can you have
a "series of criminal acts if the elements that are supposed
to constitute the series are not proved to be criminal?
59
 Decision, p. 12.
60
 Id., at 14.
61
 Decision, pp. 12-14.
62
 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE
ON JUSTICE AND COMMITTEE ON CONSTITUTIONAL
[Document title]

AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991, pp. 39- Sec. 1. No person shall be deprived of life, liberty or
40. property without due process of law, nor shall any person
be denied the equal protection of the laws.
63
 Decision, p. 14.
xxx
64
 RECORDS OF THE SENATE, June 6, 1989, pp. 92-93.
Sec. 19(1) Excessive fines shall not be imposed, nor
65
 RECORDS OF THE SENATE, June 5, 1989, pp. 34. cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed unless,
66
 Reply to Comment, p. 33. for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty
67
 Ibid. already imposed shall be reduced to reclusion
perpetua. (Emphasis supplied.)
68
 Id. 78
 Reply to Comment, pp.16-18; Memorandum for Petitioner, pp.
69
 Id. 62-63.

79
70
 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE  Article 335, Revised Penal Code.
ON JUSTICE AND COMMITTEE ON CONSTITUTIONAL 80
AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991, p. 40.  Article 249, Revised Penal Code.

81
71
 Ibid.  Rubi vs. Provincial Board of Mindoro, 39 Phil 660 (1919).

82
72
 Id.  See Article XIII, Section 1 and 2, Constitution.

83
73
 Id.  Id., at Section 6.

84
74
 Id.  Id., at Section 3.

85
75
 Id., at 40-41.  Id., at Section 5.

86
76
 Id., at 42-43.  Id., at Section 7.

87
77
 Article III of the Constitution provides:  Id., at Section 14.

46
[Document title]

88
 See Article XIV, Constitution.. within the meaning of section 2, title 18, United States
Code, to use or invest, directly or indirectly, any part of
89
 Comment, p. 13. such income, or the proceeds of such income, in acquisition
of any interest in, or the establishment or operation of, any
90
 Decision, pp. 14-15. enterprise which is engaged in, or the activities of which
effect, interstate or foreign commerce. A purchase of
91
 Alpha Investigation and Security Agency, 272 SCRA 653 (1997). securities on the open market for purposes of investment,
and without the intention of controlling or participating in
92
 11 Oxford English Dictionary 357 (2d ed 1989). the control of the issuer, or of assisting another to do so,
shall not be unlawful under this subsection if the securities
93 of the issuer held by the purchaser, the members of his
 Webster’s Third New International Dictionary, p. 2029 (1976).
immediate family, and his or their accomplices in any
94 pattern or racketeering activity or the collection of an
 H.J. Inc., et al. v. Northwestern Bell Telephone Co., et al., 492 US
unlawful debt after such purchase do not amount in the
229 (1989)
aggregate to one percent of the outstanding securities of
95
any one class, an do not confer, either in law or in fact, the
 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). power to elect one or more directors of the issuer.
96
 Supra. (b) It shall be unlawful for any person through a pattern of
97
racketeering activity or through collection of an unlawful
 Id., at 236. debt to acquire or maintain, directly or indirectly, any
interest in or control of any enterprise which is engaged in,
98
 Justice Scalia was joined by Chief Justice Rehnquist, Justices or the activities of which affect, interstate or foreign
O’Connor and Kennedy. commerce.
99
 Atkinson, Jeff. "RACKETEER INFLUENCED AND CORRUPT (c) It shall be unlawful for any person employed by or
ORGANIZATIONS," § § 1961-68: Broadest of the Federal Criminal associated with any enterprise engaged in, or the activities
Statutes, 69 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 1 of which affect, interstate or foreign commerce, to conduct
(1978). or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering
100
 18 U.S.C. § 1962 (1970): activity or collection of unlawful debt.

(a) It shall be unlawful for any person who has received any (d) It shall be unlawful for any person to conspire to violate
income derived, directly or indirectly, from a pattern of any of the provisions of subsections (a), (b), or (c) of this
racketeering activity or through collection of an unlawful section.
debt in which such person has participated as a principal

47
[Document title]
101
 Id., at § 1961(5).
102
 See RECORDS JOINT CONFERENCE COMMITTEE MEETING,
May 7, 1991, p. 12.
103
 Northwestern, supra.
104
 Id., at 239:
RICO’s legislative history reveals Congress’ intent that to
prove a pattern of racketeering activity a plaintiff or
prosecutor must show that the racketeering predicates are
related, and that they amount to or pose a threat of
continued criminal activity. Citing 116 Cong Rec 18940
(1970)
105
 Id., at 240.
106
 Id.,at 241.
107
 Separate Concurring Opinion, pp. 255-256.
108
 The issue involved in this case was whether Northwestern Bell
Telephone Co., Inc. was liable under the RICO Law for bribing the
members of the Minnesota Public Utilities Commission to approve
rates for the company in excess of a fair and reasonable amount.
The U.S. Supreme Court reversed the District Court of Minnesota
and held that (1) to prove a "pattern of racketeering activity"
within the meaning of RICO, it must be shown that the predicate
acts of racketeering activity are related and that they amount to or
pose a threat of continued criminal activity; (2) it is not only by
proof of multiple schemes that continuity of criminal activity may
be shown; (3) a pattern of racketeering activity may be shown
regardless of whether the racketeering activities are characteristic
of "organized crime"; and (4) remand was necessary because,
48
under the facts alleged, it might be possible to prove that the
defendants' actions satisfied the requirements of relatedness and
continuity and they thus constituted a "pattern of racketeering
activity".
109
 See United States v. Masters, 924 F.2d 1362 (7th Cir.), cert.
denied 11 S. Ct. 2019 (1991); United States v. Pungitore, 910
F.2d 1084 (3rd Cir. 1990), cert. denied, 11 S.Ct. 2009-11 (1991);
United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied,
111 S. Ct. 130 (1990). All cases cited in Moran, Christopher, infra.
110
 Bauerschmidt, Joseph E., Mother of Mercy – Is this the End of
RICO? – Justice Scalia Invites Constitutional Void-for-Vagueness
Challenge to RICO "Pattern", 65 NOTRE DAME LAW REVIEW
1106 (1990).
111
 Moran, Christopher. Is the "Darling" in Danger? "Void for
Vagueness" – The Constitutionality of the RICO Pattern
Requirement, 36 VILLANOVA LAW REVIEW 1697 (1991) citing:
COLO. REV. STAT. § 18-17-103(3): "Pattern of racketeering
activity" means engaging in at least two acts of racketeering
activity which are related to the conduct of the enterprise, if
at least one of such acts occurred in this state after July 1,
1981, and if the last of such acts occurred within ten years
(excluding any period of imprisonment) after a prior act of
racketeering activity.
CONN. GEN. STAT. ANN. § 53-394(e) (West 1985): "Pattern
of racketeering activity" means engaging in at least two
incidents of racketeering activity that have the same or
similar purposes, results, participants, victims or methods
of commission or otherwise are interrelated by
distinguishing characteristics, including a nexus to the
same enterprise, and are not isolated incidents, provided at
[Document title]
least one of such incidents occurred after the effective date
of this act and that the last of such incidents occurred
within five years after a prior incident of racketeering
conduct.
GA. CODE ANN. § 16-14-3(8) (Supp. 1991): "Pattern of
racketeering activity" means engaging in at least two
incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims, or methods of
commission or otherwise are interrelated by distinguishing
characteristics and are not isolated incidents, provided at
least one of such incidents occurred after July 1, 1980, and
that the last of such incidents occurred within four years,
excluding any periods of imprisonment, after the
commission of a prior incident of racketeering activity.
IDAHO CODE § 18-7803(d) (1987): "Pattern of racketeering
activity" means engaging in at least two (2) incidents of
racketeering conduct that have the same or similar intents,
results, accomplices, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics
and are not isolated incidents, provided at least one (1) of
such incidents occurred after the effective date of this act
and that the last of such incidents occurred within five (5)
years after a prior incident of racketeering conduct.
IND. CODE ANN. § 35-45-6-1 (West 1986): "Pattern of
racketeering activity" means engaging in at least two (2)
incidents of racketeering activity that have the same or
similar intent, result, accomplice, victim, or method of
commission, or that are otherwise interrelated by
distinguishing characteristics [sic] that are not isolated
incidents. However, the incidents are a pattern of
racketeering activity only if at least one (1) of the incidents
occurred after August 31, 1980, and if the last of the
49
incidents occurred within five (5) years after a prior incident
of racketeering activity.
LA. REV. STAT. ANN. § 15:1352 (C) (West Supp. 1992):
"Pattern of drug racketeering activity" means engaging in at
least two incidents of drug racketeering activity that have
the same or similar intents, results, principals, victims, or
methods of commission or otherwise are interrelated by
distinguishing characteristics and are not isolated
incidents, provided at least one of such occurs after a prior
incident of drug racketeering activity.
MISS. CODE ANN. § 97-43-3(d) (Supp 1989): "Pattern of
racketeering activity" means engaging in at least two (2)
incidents of racketeering conduct that have the same or
similar intents, results, accomplices, victims, or methods of
commission or otherwise are interrelated by distinguishing
characteristics and are not isolated incidents, provided at
least one (1) of such incidents occurred after the effective
date of this chapter and that the last of such incidents
occurred within five (5) years after a prior incident of
racketeering conduct.
N.C. GEN. STAT. § 75D-3(b) (1990): "Pattern of racketeering
activity means engaging in at least two incidents of
racketeering activity that have the same or similar
purposes, results, accomplices, victims or methods of
commission or otherwise are interrelated by distinguishing
characteristics and are not isolated and unrelated
incidents, provided at least one of such incidents occurred
after October 1, 1986, and that at least one other of such
incidents occurred within a four-year period of time of the
other, excluding any periods of imprisonment, after the
commission of a prior incident of racketeering activity.
[Document title]
OR. REV. STAT. § 166.715(4) (1990): "Pattern of
racketeering activity" means engaging in at least two
incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims, or methods of
commission or otherwise are interrelated by distinguishing
characteristics, including a nexus to the same enterprise,
and are not isolated incidents, provided at least one of such
incidents occurred after November 1, 1981, and that the
last of such incidents occurred within five years after a
prior incident of racketeering activity.
TENN. CODE ANN. § 39-12-203(6) (1991): "Pattern of
racketeering activity" means engaging in at least two (2)
incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims or methods of
commission or otherwise are interrelated by distinguishing
characteristics and are not isolated incidents; provided,
that at least one (1) of such incidents occurred after July 1,
1986, and that the last of such incidents occurred within
two (2) years after a prior incident of racketeering conduct.
WASH. REV. CODE ANN. § 9A.82.010(15) (1988): "Pattern
of criminal profiteering activity" means engaging in at least
three acts of criminal profiteering, one of which occurred
after July 1, 1985, and the last of which occurred within
five years, excluding any period of imprisonment, after the
commission of the earliest act of criminal profiteering. In
order to constitute a pattern, the three acts must have the
same or similar intent, results, accomplices, principals,
victims or methods of commission, or be otherwise
interrelated by distinguishing characteristics including a
nexus to the same enterprise, and must not be isolated
events.
112
 Id., citing:
50
CAL. PENAL CODE § 186.2(b) (West 1988): "Pattern of
criminal profiteering activity" means engaging in at least to
incidents of criminal profiteering, as defined by this act,
which meet the following requirements: (1) Have the same
or similar purpose, result, principals, victims or methods of
commission, or are otherwise interrelated by distinguishing
characteristics[;] (2) Are not isolated events[; and] (3) Were
committed as criminal activity of organized crime.
113
 Id., citing:
DEL. CODE ANN. Tit. 11. § 1502(5) (1987): "Pattern of
racketeering activity" shall mean 2 or more incidents of
conduct: a. That: 1. Constitute racketeering activity; 2. Are
related to the affairs of the enterprise; 3. Are not so closely
related to each other and connected in point of time and
place that they constitute a single event; and b. Where: 1.
At least 1 of the incidents of conduct occurred after July 9,
1986; 2. The last incident of conduct occurred within 10
years after a prior occasion of conduct . . .
OHIO REV. CODE ANN. §2923.31(E) (Anderson Supp.
1991): "Pattern of corrupt activity" means two or more
incidents of corrupt activity, whether or not there has been
a prior conviction, that are related to the affairs of the same
enterprise, are not isolated, and are not so closely related to
each other and connected in time and place that they
constitute a single event. At least one of the incidents
forming the pattern shall occur on or after January 1,
1986. Unless any incident was an aggravated murder or
murder, the last incidents forming the pattern shall occur
within six years after the commission of any prior incident
forming the pattern, excluding any period of imprisonment
served by any person engaging in the corrupt activity.
[Document title]
OKLA. STAT. ANN. tit. 22, § 1402(5) (West Supp. 1992):
Pattern of racketeering activity" means two or more
occasions of conduct: a. that include each of the following:
(1) constitute racketeering activity, (2) are related to the
affairs of the enterprise, (3) are not isolated, (4) are not so
closely related to each other and connected in point of time
and place that they constitute a single event, and b. where
each of the following is present: (1) at least one of the
occasions of conduct occurred after November 1, 1988, (2)
the last of the occasions of conduct occurred within three
(3) years, excluding any period of imprisonment served by
the person engaging in the conduct, of a prior occasion of
conduct . . .
WIS. STAT. ANN. § 946.82(3) (West Supp. 1991): "Pattern of
racketeering activity" means engaging in at least 3 incidents
of racketeering activity that the same or similar intents,
results, accomplices, victims or methods of commission or
otherwise are interrelated by distinguishing characteristics,
provided at least one of the incidents occurred after April
27, 1982 and that the last of the incidents occurred within
7 years after the first incident of racketeering activity. Acts
occurring at the same time and place which may form the
basis for crimes punishable under more than one statutory
provision may count for only one incident of racketeering
activity.
114
 Id., citing:
MINN. STAT. ANN. §609.902(6) (West Supp. 1992): "Pattern
of criminal activity" means conduct consisting constituting
three or more criminal acts that: (1) were committed within
ten years of the commencement of the criminal proceedings;
(2) are neither isolated incidents, nor so closely related and
connected in point of time or circumstance of commission
as to constitute a single criminal offense; and (3) were
51
either: (i) related to one another through a common scheme
or plan or shared criminal purpose or (ii) committed,
solicited, requested, importuned, or intentionally aided by
persons acting with the mental culpability required for the
commission of the criminal acts and associated with or in
an enterprise involved in these activities.
N.Y. PENAL LAW §460.10(4) (McKinney 1989): "Pattern of
criminal activity" means conduct engaged in by persons
charged in an enterprise corruption count constituting
three or more criminal acts that: (a) were committed within
ten years of the commencement of the criminal action; (b)
are neither isolated incidents, nor so closely related and
connected in point in time or circumstance of commission
as to constitute a criminal offense or criminal transaction . .
. ; and (c) are either: (i) related to one another through a
common scheme or plan or (ii) were committed, solicited,
requested, importuned or intentionally aided by persons
acting with the mental culpability required for the
commission thereof and associated with or in the criminal
enterprise.
115
 Luskin, Robert D. Behold, The Day of Judgment: Is the RICO
Pattern Requirement Void for Vagueness? 64 ST. JOHN’S LAW
REVIEW 779 (1990).
116
 Memorandum for Petitioner, p. 47; TSN, Oral Arguments,
September 18, 2001, see pp. 224-233.
117
 Memorandum for Petitioner, p. 47.
118
 See Kolender v. Lawson, supra
119
 18 U.S.C. § 1961 (5). .
[Document title]

120 133
 See U.S. v. Batchelder, 442 US 114, 60 L Ed 2d 755, 99 S  Regalado, Florenz, Criminal Law Conspectus (2001 ed.), 161-
Ct 2198 (1979). 162.

121 134
 Through Justice Brennan.  Atty. Rene A.V. Saguisag.

122 135
 Supra.  Senate Bill No. 733.

123 136
 Decision, pp. 21-22.  Tañada and Macapagal vs. Cuenco, 103 Phil. 1093.

124 137
 Today, July 1, 2001 issue.  Commercial National Bank v. Rowe, 666 So. 2d 1312 (1996).

125 138
 In People vs. Echegaray (267 SCRA 682) the word "heinous"  65 Phil. 56 (1937).
was traced to the early Spartans’ word "haineus" which means
hateful and abominable. In turn, the word came from the Greek 139
 Id., at 90.
prefix "haton" indicating acts so hateful or shockingly evil. (at 715)
140
 See Explanatory Note, Senate Bill No. 733, Records of the
126
 WHEREAS, the crimes punishable by death under this Act are Senate, June 1, 1989, pp. 1-2.
heinous for being grievous, odious and hateful offenses and which,
by reason of their inherent or manifest wickedness, viciousness, 141
 See Papachristou v. Jacksonville, 405 U.S. 156 (1972).
atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, 142
 One of the reliefs sought in the Prayer contained in the Petition
civilized and ordered society. (at p. 37) and in Petitioner’s Memorandum (at p. 84) is for the
quashal of the Information in Criminal case No. 26558 for being
127
 Reyes, Luis B. The Revised Penal Code, Book One (13th ed.), p. null and void.
56.
Double jeopardy attaches only when all of the following
128
 Petitioner’s Memorandum, p. 81. circumstances are present: (1) upon a valid indictment; (2)
before a competent court; (3) after arraignment; (4) when a
129
 Dennis v. U.S., 314 U.S. 494 (1951). valid plea has been entered; and (5) when the accused was
acquitted or convicted or the case was dismissed or
130
 Scales v. U.S., 203 (1961). otherwise terminated without the express consent of the
accused (Tecson vs. Sandiganbayan, 318 SCRA 80, 89
131
 Smith v. California, 361 U.S. 147 (1959). [1999]).

132
 342 U.S. 246 (1952).

52
[Document title]
The Lawphil Project - Arellano Law Foundation
SEPARATE DISSENTING OPINION
PARDO, J.:
With due respect, I vote to grant the petition on the second ground raised
therein, that is, multiplicity of offenses charged in the amended
information.1 Consequently, the resolution of the Sandiganbayan must
be set aside, and the case remanded to the Ombudsman for the
amendment of the information to charge only a single offense.
In my view, it is unnecessary to rule on the unconstitutionality of the
entire law,2 R. A. No. 7080, as amended by R. A. No. 7659, although I
share the opinion of the dissenting justices in the case of People v.
Echagaray,3 that the heinous crime law is unconstitutional. Hence, the
amendments to the plunder law prescribing the death penalty therefor
are unconstitutional. I am of the view that the plunder law penalizes acts
that are mala in se, and consequently, the charges must be the specific
acts alleged to be in violation of the law, committed with malice and
criminal intent. At any rate, I venture the view that Section 4, R. A. No.
7080, must be interpreted as requiring proof beyond reasonable doubt of
all the elements of plunder as prescribed in the law, including the
elements of the component crimes, otherwise, the section will be
unconstitutional.
Footnotes
53
1
 Petition, Annex "B", Motion to Quash, Ground II.
2
 ‘The Court will not pass upon a constitutional question although
properly presented by the record if the case can be disposed of on
some other ground." (Laurel v. Garcia, 187 SCRA 797, 813 [1990],
citing Siler v. Louisville and Nashville R. Co., 312 U.S. 175 [1909];
Railroad Commission v. Pullman Co., 312 U.S. 496 [1941]; Lalican
v. Vergara, 342 Phil. 485, 498 [1997]; Mirasol v. Court of Appeals,
G. R. No. 128448, February 1, 2001.
3
 335 Phil. 343 [1997].
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
SANDOVAL–GUTIERREZ, J.:
At times when speaking against popular views can subject a member of
this Court to all sorts of unfair criticism and pressure from the media,
the lure not to wield the judicial pen is at its crest. Nevertheless, I cannot
relent to such enticement. Silence under such circumstances may mean
not only weakness, but also insensibility to the legal consequence of a
constitutional adjudication bound to affect not only the litigants, but the
citizenry as well. Indeed, the core issue in this case is highly significant,
the resolution of which is inevitably historical. Thus, today, I prefer to
take a stand and, therefore, dissent from the majority opinion.
It is beyond dispute that Republic Act No. 7080 (R.A. No. 7080), 1 entitled
"An Act Penalizing the Crime of Plunder," is controversial and far-
reaching. Nonetheless, it is my view that it is also vague and fuzzy,
[Document title]
inexact and sweeping. This brings us to the query - may R.A. No. 7080
be enforced as valid and its shortcomings supplied by judicial
interpretation? My answer, to be explained later, is "NO."
As a basic premise, we have to accept that even a person accused of a
crime possesses inviolable rights founded on the Constitution which even
the welfare of the society as a whole cannot override. The rights
guaranteed to him by the Constitution are not subject to political
bargaining or to the calculus of social interest. Thus, no matter how
socially-relevant the purpose of a law is, it must be nullified if it tramples
upon the basic rights of the accused.
Enshrined in our Constitution is the ultimate guaranty that "no person
shall be deprived of life, liberty, or property without due process of
law."2 This provision in the Bill of Rights serves as a protection of the
Filipino people against any form of arbitrariness on the part of the
government, whether committed by the legislature, the executive or the
judiciary. Any government act that militates against the ordinary norms
of justice and fair play is considered an infraction of the due process; and
this is true whether the denial involves violation merely of the procedure
prescribed by law or affects the very validity of the law itself. 3
The same Due Process Clause protects an accused against conviction
except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged. The reason for this was
enunciated in In Re Winship:4 "[t]he accused during a criminal
prosecution has at stake interest of immense importance, both because
of the possibility that he may lose his liberty (or life) upon conviction and
because of the certainty that he would be stigmatized by the conviction."
In view thereof, any attempt on the part of the legislature to diminish the
requirement of proof in criminal cases should be discouraged.
I of public funds or raids on the public treasury;
54
R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did
not directly lower the degree of proof required in the crime of plunder
from proof beyond reasonable doubt to mere preponderance of or
substantial evidence, it nevertheless lessened the burden of the
prosecution by dispensing with proof of the essential elements of
plunder. Let me quote the offending provision:
SEC. 4. Rule of Evidence. – For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal
act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate, or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy.
In every criminal prosecution, the law recognizes certain elements as
material or essential. Calling a particular fact an "essential element"
carries certain legal consequences. In this case, the consequence that
matters is that the Sandiganbayan cannot convict the accused unless it
unanimously5 finds that the prosecution has proved beyond reasonable
doubt each element of the crime of plunder.
What factual elements must be proved beyond reasonable doubt to
constitute the crime of plunder?
Ordinarily, the factual elements that make up a crime are specified in the
law that defines it. Under R.A. No 7080, as amended, the essential
elements of the crime of plunder are: a) that the offender is a public
officer; b) that he amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts described in
Section 1 (d), to wit:
1) Through misappropriation, conversion, misuse, or malversation
[Document title]
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks, or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivision,
agencies or instrumentalities or government –owned or controlled
corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly, or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular person or special
interests; or
6) By taking undue advantage of official position, authority,
relationship, connection, or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.
and c) that the aggregate amount or total value of the ill-gotten wealth is
at least Fifty Million Pesos (P50,000,000.00). 6
Does the phrase "combination or series of overt or criminal acts
described in Section 1 (d)" mean that the "criminal acts" merely
constitute the means to commit plunder? Or does it mean that those
"criminal acts," are essential elements of plunder?
55
When Section 4 of R.A. No. 7080 mandates that it shall not be necessary
for the prosecution to prove each and every criminal act done by the
accused, the legislature, in effect, rendered the enumerated "criminal
acts" under Section 1 (d) merely as means and not as essential
elements of plunder. This is constitutionally infirmed and repugnant to
the basic idea of justice and fair play. 7 As a matter of due process, the
prosecution is required to prove beyond reasonable doubt every fact
necessary to constitute the crime with which the defendant is
charged. The State may not specify a lesser burden of proof for an
element of a crime.8 With more reason, it should not be allowed to go
around the principle by characterizing an essential element of plunder
merely as a "means" of committing the crime. For the result is the
reduction of the burden of the prosecution to prove the guilt of the
accused beyond reasonable doubt.
Let me elucidate on the vices that come with Section 4.
First, treating the specific "criminal acts" merely as means to commit the
greater crime of plunder, in effect, allows the imposition of the death
penalty even if the Justices of the Sandiganbayan did not "unanimously"
find that the accused are guilty beyond reasonable doubt of those
"criminal acts." The three Justices need only agree that the accused
committed at least two of the criminal acts, even if not proved by
evidence beyond reasonable doubt. They do not have to agree
unanimously on which two.
Let us consider the present case against former President Joseph Ejercito
Estrada. The accusatory portion of the information in Criminal Case No.
26558 charges Mr. Estrada and others of willfully, unlawfully and
criminally amassing, accumulating and acquiring ill-gotten wealth in the
aggregate amount of P4,097,804,173.17 more or less, through
a combination and series of overt and criminal acts described as
follows:
[Document title]
"a) by receiving, collecting, directly or indirectly, on many
instances, so called "jueteng money" from gambling operators in
connivance with co-accused Jose "Jinggoy" Estrada, Yolanda
Ricaforte and Edward Serapio, as witnessed by Gov. Luis Chavit
Singson, among other witnesses, in the aggregate amount of FIVE
HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00),
more or less, in consideration of their protection from arrest or
interference by law enforcers in their illegal "jueteng" activities;
and
b) by misappropriating, converting and misusing his gain and
benefit public fund in the amount of ONE HUNDRED THIRTY
MILLION PESOS (P130,000,000.00), more or less, representing a
portion of the One Hundred Seventy Million Pesos
(P170,000,000.00) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, in conspiracy with co-
accused Charlie "Atong" Ang, Alma Alfaro, Eleuterio Tan a.k.a
Eleuterio Ramos Tan or Mr. Uy., and Jane Doe a.k.a Delia Rajas
as witnesses by Gov. Luis "Chavit" Singson, among other
witnesses; and
c) by directing, ordering and compelling the Government Service
Insurance System (GSIS) and the Social Security System (SSS) to
purchase and buy a combined total of P681,733,000. shares of
stock of Belle Corporation in the aggregate value of One Billion
Eight Hundred Forty Seven Pesos and Fifty Centavos
(P1,847,578,057.50), for the purpose of collecting for his personal
gain and benefit, as in fact he did collect and receive the sum
of ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (P189,700,000.00), as commission from said
stock purchase; and
d) by unjustly enriching himself in the amount of THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17)
56
comprising his unexplained wealth, acquired, accumulated and
amassed by him under his account name "Jose Velarde" with
Equitable PCI Bank."
Since it is not necessary to prove each criminal act, the inevitable
conclusion is that Mr. Estrada may be convicted of the crime of plunder
without the Justices of the Sandiganbayan "unanimously" deciding
which two of the four criminal acts have actually been committed. In
short, all that R.A. No. 7080 requires is that each Justice must be
convinced of the existence of a "combination or series." As to which
criminal acts constitute a combination or series, the Justices need not be
in full agreement. Surely, this would cover-up a wide disagreement
among them about just what the accused actually did or did not do.
Stated differently, even if the Justices are not unified in their
determination on what criminal acts were actually committed by the
accused, which need not be proved under the law, still, they could
convict him of plunder.
Considering that what R.A. No. 7080 punishes is the plurality of criminal
acts indicative of the grand scheme or conspiracy to amass ill-gotten
wealth, it is imperative to focus upon the individual "criminal acts" in
order to assure the guilt of the accused of plunder.
Second, R.A. No. 7080 lumps up into one new offense of plunder six (6)
distinct crimes which by themselves are currently punishable under
separate statutes or provisions of law. The six (6) separate crimes become
mere "means or similar schemes" to commit the single offense of plunder.
It bears emphasis that each of the separate offenses is a crime mala in
se. The commission of any offense mala in se is inherently accompanied
by a guilty mind or a criminal intent.9 Unfortunately, R.A. No. 7080
converted the six mala in se offenses into one crime which is mala
prohibita wherein the intent becomes insignificant. Upon the
commission of the proscribed act, without proof of intent, the law is
considered violated.10 Consequently, even acts recklessly committed (i.e.
without intent) can be punished by death.
[Document title]
Third, Section 4 mandates that it shall not be necessary for the
prosecution to prove each and every criminal act done by the
accused x x x it being sufficient to prove beyond reasonable doubt a
pattern of overt or criminal acts. By its own terminology, Section 4
requires that the "pattern" be proved by evidence beyond reasonable
doubt. Initially, we must disassociate the specific "criminal acts" from the
"pattern of criminal acts." These two phrases do not refer to one and the
same thing. Pattern, as defined in the dictionary, means an established
mode of behavior.11 In the crime of plunder, the existence of a "pattern"
can only be inferred from the specific "criminal acts" done by the
accused. Several queries may be raised to determine the existence of a
"pattern." Are these criminal acts related or tied to one another? Is the
subsequent criminal act a mere continuation of the prior criminal act?
Do these 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 connection it bears with the other criminal
acts, and from there determine whether a certain "pattern" exists. But
how could "pattern" be proved beyond reasonable doubt when in the
first place the specific "criminal acts" from which such pattern may
be inferred are not even required to be proved?
And fourth, plunder is a very serious offense. What is at stake under the
law is not only the liberty of the accused but his life and property as well.
Thus, it will be extremely unjust to lessen the prosecution’s burden of
proof to such a degree not commensurate to what the accused stands to
suffer. If a person will lose his life, justice requires that every fact on
which his guilt may be inferred must be proved beyond reasonable
doubt.
Providing a rule of evidence which does not require proof beyond
reasonable doubt to establish every fact necessary to constitute the crime
is a clear infringement of due process. While the principles of the law of
evidence are the same whether applied on civil or criminal trials, they are
more strictly observed in criminal cases.12 Thus, while the legislature of
a state has the power to prescribe new or alter existing rules of
evidence, or to prescribe methods of proof, the same must not
57
violate constitutional requirements or deprive any person of his
constitutional rights.13 Unfortunately, under R.A. No. 7080, the
State did not only specify a lesser burden of proof to sustain an
element of the crime; it even dispensed with proof by not
considering the specific "criminal acts" as essential elements. That it
was the clear intention of the legislature is evident from the Senate
deliberation, thus:
"Senator Guingona. Since it is a series or a scheme,what amount of
evidence will, therefore, be required? Must there be a pattern of the
criminal acts? Must there be a series of briberies, for example? Or, can
there be only one?
Senator Tanada. Under Section 4 of the bill, Mr. President, it is provided
that:
"For purposes of establishing the OFFENSE, of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate, or
acquire ill-gotten wealth… But, there must be enough evidence
"sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts of the overall unlawful scheme or conspiracy."
So, that is the quantum of evidence that would be required under this
proposal measure.
Senator Guingona. That is sufficient to establish the prima facie case.14
xxxxxx
Senator Romulo. That, perhaps, is a good provision of the bill. But, may
I ask, Mr. President, what is in this bill that would insure that there
would be a speedier process by which this crime of plunder would readily
and immediately processed and convicted or acquitted than is now
existing in present laws?
[Document title]
Senator Tanada. Yes, x x x.
Now, on the second point, Mr. President, I believe that what could make
faster and speedier prosecutions of these grafters would be a change that
will be authorized in this bill, at least, in the filing of information against
the perpetrators. Under the existing criminal procedure, as I said earlier,
there can only be one offense charged per information. So, if there is
going to be a series of overt or criminal acts committed by the grafter,
then that would necessitate the filing of so many informations against
him. Now, if this bill becomes a law, then that means that there can be
only one information filed against the alleged grafter. And the evidence
that will be required to convict him would not be evidence for each
and every individual criminal act but only evidence sufficient to
establish the conspiracy or scheme to commit this crime of
plunder.15
xxxxxx
Senator Guingona. May I just be clarified Mr. President. In this Section
4, a pattern of the criminal acts is all that is required. Would this pattern
of criminal acts be also sufficient to establish a prima facie case?
Senator Tanada. Mr. President, under Section 4, it would not only be
sufficient to establish a prima facie case. It would be sufficient to
establish guilt as long as the evidence, necessary to establish guilt
beyond reasonable doubt is presented."16
In dispensing with proof of each criminal act, the clear objective of
Congress is to render it less difficult for the prosecution to prove the
crime of plunder. While this presupposes a noble intention, I do not
think there is a sufficient justification. I, too, have the strong desire to
eliminate the sickness of corruption pervading in the Philippine
government, but more than anything else, I believe there are certain
principles which must be maintained if we want to preserve fairness in
our criminal justice system. If the prosecution is not mandated to prove
58
the specific "criminal acts," then how can it establish the existence of the
requisite "combination or series" by proof beyond reasonable doubt?
II
Another valid constitutional objection to R.A. No. 7080 is the vagueness
of the term "pattern." As stated by Mr. Justice Kapunan, in his Dissent,
the concept of "pattern of overt or criminal acts" embodied in the law was
derived by Congress from the RICO (Racketeer Influenced and Corrupt
Organizations) statute.17 I am, therefore, constrained to refer to US law
and jurisprudence. "Pattern" as defined in the RICO statute means "as
requiring at least two acts of racketeering activity….the last of which
occurred within ten years….after the commission of the prior act of
racketeering activity.18
Mr. Justice Kapunan observed that unlike the RICO law, the law on
plunder does not specify a) the number of criminal acts necessary before
there could be a "pattern," as well as b) the period within which the
succeeding criminal acts should be committed. These failures render the
law void for its vagueness and broadness.
Indeed, Congress left much to be desired. I am at a quandary on how
many delictual acts are necessary to give rise to a "pattern of overt or
criminal acts" in the crime of plunder. If there is no numerical standard,
then, how should the existence of "pattern" be ascertained? Should it be
by proximity of time or of relationship? May an act committed two
decades after the prior criminal act be linked with the latter for the
purpose of establishing a pattern?
It must be remembered that plunder, being a 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 criminal act.
This will expose the person concerned to criminal prosecution ad
infinitum. Surely, it will undermine the purpose of the statute of
limitations, i.e., to discourage prosecution based on facts obscured by
[Document title]
the passage of time, and to encourage law enforcement officials to
investigate suspected criminal activity promptly. 19 All these undesirable
consequences arise from the fact that the plunder law fails to
provide a period within which the next criminal act must be
committed for the purpose of establishing a pattern. I believe R.A.
No. 7080 should have provided a cut-off period after which a succeeding
act may no longer be attached to the prior act for the purpose of
establishing a pattern. In reiteration, the RICO law defines "pattern" as
requiring at least two acts of racketeering activity… the last of which
occurred within ten years… after the commission of the prior act of
racketeering activity. Such limitation prevents a subsequent racketeering
activity, separated by more than a decade from the prior act of
racketeering, from being appended to the latter for the purpose of coming
up with a pattern. We do not have the same safeguard under our law.
Significantly, in Sedima, S.P.R.L v. Imrex Co.,20 the United States
Supreme Court expressed dismay that Congress has failed to properly
define the term "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 more than two acts, and after
examining RICO’s legislative history, settled on "continuity plus
relationship" as the additional requirement.
Years later, in H.C. Inc. v. The Northwestern Bell Tel., 21 the U.S. Supreme
Court conceded that "the continuity plus relationship" means different
things to different circuits. Nevertheless, it held firm to
the Sedima requirement that "in order to establish a pattern, the
government has to show "that the racketeering predicates are related,
and that they amount to or pose a threat of continued criminal activity."
Justice Scalia, in a concurring opinion in which three other justices
joined, derided the "relationship" requirement as not "much more helpful
[to the lower courts] than telling them to look for a "pattern" - - which is
what the statute already says." As for the continuity requirement, Justice
Scalia said: "Today’s opinion has added nothing to improve our prior
guidance, which has created a kaleidoscope of circuit positions, except to
clarify that RICO may in addition be violated when there is a 'threat of
59
continuity'. It seems to me this increases rather than removes the
vagueness. There is no reason to believe that the Court of Appeals will be
any more unified in the future, than they have in the past, regarding the
content of this law."
Aware of the ambiguities present in the RICO law the drafters of the New
York "Organized Crime Control Act" (a progeny of RICO) now more
specifically define "pattern of criminal activity" as conduct engaged in by
persons charged in an enterprise corruption count constituting three or
more criminal acts that (a) were committed within ten years from the
commencement of the criminal action; (b) are neither isolated incidents,
nor so closely related and connected in point of time or circumstance of
commission as to constitute a criminal offense or criminal transaction,
as those terms are defined in section 40.10 of the criminal procedure
law; and (c) are either: (i) related to one another through a common
scheme or plan or (ii) were committed, solicited, requested, importuned
or intentionally aided by persons acting with the mental culpability
required for the commission thereof and associated with or in the
criminal enterprise.22
If the term "pattern" as defined in the RICO law is continuously subjected
to constitutional attacks because of its alleged vagueness, how much
more the term "pattern" in R.A. No. 7080 which does not carry with it
any limiting definition and can only be read in context. Indeed, there is
no doubt that the invalidity of the law based on vagueness is not merely
debatable - it is manifest. Thus, this Court should declare R.A. No. 7080
unconstitutional.
III
Lastly, the terms "combination" and "series" are likewise vague. Hence,
on the basis of the law, a conviction of an accused cannot be sustained.
A statute that does not provide adequate standards for adjudication, by
which guilt or innocence may be determined, should be struck
down.23 Crimes must be defined in a statute with appropriate certainty
[Document title]
and definiteness.24 The standards of certainty in a statute prescribing
punishment for offenses are higher than in those depending primarily on
civil sanctions for their enforcement.25 A penal statute should therefore
be clear and unambiguous.26 It should explicitly establish the elements of
the crime which it creates 27 and provide some reasonably ascertainable
standards of guilt.28 It should not admit of such a double meaning that a
citizen may act on one conception of its requirements and the courts on
another.29
I agree with the observation of Mr. Justice Kapunan that "resort to the
dictionary meaning of the terms ‘combination’ and ‘series’ as well as
recourse to the deliberations of the lawmakers only serve to prove that
R.A. No. 7080 failed to satisfy the requirement of the Constitution on
clarity and definiteness." The deliberations of our law-makers, as quoted
verbatim in Justice Kapunan's Dissent, indeed, failed to shed light on
what constitute "combination" and "series." 30
I believe this is fatal.
The essence of the law on plunder lies in the phrase "combination or
series of overt or criminal acts." As can be gleaned from the Record of the
Senate, the determining factor of R.A. 7080 is the plurality of the overt
acts or criminal acts under a grand scheme or conspiracy to amass
ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds
fifty million pesos, a person cannot be prosecuted for the crime of
plunder if there is only a single criminal act. 31
Considering that without plurality of overt or criminal acts, there can be
no crime of plunder, due process of law demands that the terms
"combination" and "series" be defined with exactitude in the law itself.
Equating these terms with mere "plurality" or "two or more," is
inaccurate and speculative. For one, a "series" is a group of
usually three or more things or events standing or succeeding in order
and having like relationship to each other. 32 The Special Prosecution
Division Panel defines it as "at least three of the acts enumerated under
60
Section 1(d) thereof."33 But it can very well be interpreted as only one act
repeated at least three times. And the Office of the Solicitor General,
invoking the deliberations of the House of Representatives, contends
differently. It defines the term series as a "repetition" or pertaining to
"two or more."34 The disparity in the Prosecution and OSG’s positions
clearly shows how imprecise the term "series" is.
This should not be countenanced. Crimes are not to be created by
inference.35 No one may be required, at 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 only under a clear
and valid law.
Respondents argue that the vagueness of R.A. No. 7080, as amended, is
cured when the Information clearly specified the acts constituting the
crime of plunder. I do not agree. It is the statute and not the accusation
under it that prescribes the rule to govern conduct and warns against
aggression.37 If on its face, a statute is repugnant to the due process
clause on account of vagueness, specification in the Information of the
details of the offense intended to be charged will not serve to validate it. 38
On the argument that this Court may clarify the vague terms or explain
the limits of the overbroad provisions of R.A. No. 7080, I should
emphasize that this Court has no power to legislate.
Precision must be the characteristic of penal legislation. For the Court to
define what is a crime is to go beyond the so-called positive role in the
protection of civil liberties or promotion of public interests. As stated by
Justice Frankfurter, the Court should be wary of judicial attempts to
impose justice on the community; to deprive it of the wisdom that comes
from self-inflicted wounds and the strengths that grow with the burden
of responsibility.39
A statute which is so vague as to permit the infliction of capital
punishment on acts already punished with lesser penalties by clearly
[Document title]
formulated law is unconstitutional. The vagueness cannot be cured by
judicial construction.
Also, not to be glossed over is the fact that R.A. 7080, as amended, is a
novel law. Hence, there is greater need for precision of terms. The
requirement that law creating a crime must be sufficiently explicit to
inform those subject to it, what conduct on their part will render them
liable to its penalties, has particular force when applied to statutes
creating new offenses. For that reason, those statutes may not be
generally understood, or may be subject of generally accepted
construction.40
Today, I recall what James Madison remarked in presenting the Bill of
Rights to the United States Congress in 1789: "if they (Bill of Rights) are
incorporated into the Constitution, independent tribunals of justice will
consider themselves in a peculiar manner the guardians of those rights;
they will be an impenetrable bulwark against every assumption of power
in the legislative or executive; and they will be naturally led to resist
every encroachment upon rights expressly stipulated for in the
Constitution by the declaration of rights."41 Time did not render his
foreboding stale. Indeed, in every constitutional democracy, the judiciary
has become the vanguard of these rights. Now, it behooves this Court to
strike an unconstitutional law. The result, I concede, may not be
politically desirable and acceptable, nevertheless, I am fully convinced
that it is constitutionally correct.
To recapitulate, R.A. No. 7080 is unconstitutional because it violates the
DUE PROCESS CLAUSE of the Constitution. The vagueness of its terms
and its incorporation of a rule of evidence that reduces the burden of the
prosecution in proving the crime of plunder tramples upon the basic
constitutional rights of the accused.
In fine, I can only stress that the one on trial here is not Mr. Estrada, but
R.A. No. 7080. The issue before this Court is not the guilt or innocence of
the accused, but the constitutionality of the law. I vote to grant the
61
petition, not because I favor Mr. Estrada, but because I look beyond
today and I see that this law can pose a serious threat to the life, liberty
and property of anyone who may come under its unconstitutional
provisions. As a member of this Court, my duty is to see to it that the law
conforms to the Constitution and no other. I simply cannot, in good
conscience, fortify a law that is patently unconstitutional.
WHEREFORE, I vote to grant the petition.
Footnotes
1
 As amended by Republic Act No. 7659 - "An Act to Impose the
Death Penalty on Certain Heinous Crimes, Amending for that
Purpose the Revised Penal Code, other Special Penal Laws and for
other Purpose (1993).
2
 Section 1, Article III of the 1987 Constitution.
3
 Cruz, Constitutional Law, 1995 Ed. p. 95.
4
 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2nd 368.
5
 Section 1 (b) Rule XVIII, Revised Rules of the Sandiganbayan
"The unanimous vote of three Justices in a division shall be
necessary for the rendition of a judgment or order. In the
event that three Justices do not reach a unanimous vote,
the Presiding Justice shall designate by raffle two justices
from among the other members of the Sandiganbayan to sit
temporarily with them forming a special division of five
Justices, and the vote of a majority of such special division
shall be necessary for the rendition of a judgment or order.
[Document title]

6 16
 Section 2 of R.A. No. 7080.  Records of the Senate, June 16, 1989, Vol. IV, No. 141, p. 1403.

7 17
 It is an elementary principle of criminal jurisprudence, a  See Records Joint Conference Committee Meeting, May 7, 1991,
principle firmly embedded in the organic law of every free state p. 12. Representative Pablo Garcia, Chairman of the House of
and vindicated by statutory guarantee as well as by innumerable Representatives Committee on Justice, observed that R.A. No.
judicial decisions, that every criminal, however hideous his alleged 7080 was patterned after the RICO law.
crime, or however, debauched and fiendish his character, may
require that the elements of that crime shall be clearly and 18
 Rotella v. Wood, United States Supreme Court, February 23,
indisputably defined by law, and that his commission of and 2000.
relationship to the alleged offense shall be established by legal
evidence delivered in his presence. (Rice, The Law of Evidence on 19
 Toussie vs. United States, 397 U.S. 112, 115 (1970).
Evidence, Vol. 3, p. 421.
20
 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
8
 29 Am Jur 2d Section 168, p. 192. Re Winship, 397 US 358, 25
L Ed 2d 368; State v. Krantz, 498 US 938, 112 L Ed 2d 306. 21
 492 U.S. 229, 109 S. Ct. 2893, 106 L Ed. 2d 195 (1989).
9
 In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the 22
 The People of the State of New York v. Capaldo et al., 151 Misc.
crime must be the product of a free, intelligent, and intentional 2d 114 (1991).
act.
23
10
 21 Am Jur §349, p.399.
 U.S. vs. Go Chico, 14 Phil. 134 (1909-1910).
24
11
 22 C.J.S. §24 (2) p. 62; Pierce v. United States 314 US 306; 86
 Webster, Third New International Dictionary, Unabridged, 1993, L. Ed 226.
p. 1657.

12
"The constitutional vice in a vague or indefinite statute is
 Harris and Wilshere’s Criminal Law, Seventeenth Division, the injustice to accused in placing him on trial for an
1943, pp.513-514. offense as to the nature of which he is given no fair notice.
(American Communications Associations C.I.O. v. Douds,
13
 Burgett v. Texas, 389 US 109, 19 L Ed 2d 319, 88 Ct 258; 29 N.Y. 70 S. Ct. 674, 339 U.S. 382, 94 L. Ed 1391) In
Am Jur 6. determining whether a statute meets the requirement of
certainty, the test is whether the language conveys
14
 Records of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1314. sufficiently definite warning as to the proscribe conduct
when measured by a common understanding and practices.
15
 Records of the Senate, Vol. IV, No. 140, p. 1316. Penal statutes affecting public officers and employees and
public funds or property will be held invalid where the

62
[Document title]
prohibited conduct is not sufficiently defined. (Jordan v. De
George III341 U.S. 223, 95 L. Ed. 886; Winters v. People of
State of New York. 333 U.S. 507; 92 L. Ed 840) The
requirement of statutory specificity has the dual purpose of
giving adequate notice of acts which are forbidden and of
informing accused of the nature of offense charged so that
he may defend himself. (Amsel v. Brooks, 106 A. 2d 152,
141 Conn. 288; 67 S. Ct. 125, 348 U.S. 880, 91 L. Ed.
693)".
25
 "Winters v. People of State of Newyork 333 US 507; 92 L. Ed.
840 -- "A penal statute must set up ascertainable standards so
that men of common intelligence are not required to guess at its
meaning, either as to persons within the scope of the act or as to
the apllicable test to ascertain guilt."
26
 Sullivan v. United States 332 U.S. 689; 92 L. Ed. 297.
27
 United States v. Dettra Flag co. D.C. Pa., 86 F. Supp. 84.
28
 Winters v. People of State of New York, supra.
29
 State v. Tsutomu Ikeda, 143 P. 2d 880, followed in State v.
Waller 143 P. 2d 884.
30
 "Senator Gonzales. To commit the offense of plunder, as defined
in this Act and while constituting a single offense, it must consist
of a series of overt or criminal acts, such as bribery, extortion,
malversation, of public funds, swindling, falsification of public
documents, coercion, theft, fraud and illegal exaction, and graft or
corrupt practices act and like offenses. Now, Mr. President, I
think, this provision, by itself, will be vague. I am afraid that it
might be faulted for being violative of the due process clause and
the right to be informed of the nature and cause of accusation of
an accused. Because, what is meant by "series of overt or criminal
63
acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the
period of amendments, can we establish a minimum of overt acts
like, for example, robbery in band? The law defines what is
robbery in band by the number of participants therein. In this
particular case, probably, we can statutorily provide for the
definition of "series" so that two, for example, would that already
be a series? Or, three, what would be the basis for such a
determination?" (Record of the Senate, June 5, 1989, Vol. IV, No.
140, p. 1310).
31
 "Senator Paterno. Mr. President, not too clear yet on the reason
for trying to define a crime of plunder. Could I get some further
clarification?
Senator Tanada. Yes, Mr. President.
Because of our experience in the former regime, we feel that
there is a need for Congress to pass the legislation which
would cover a crime of this magnitude. While it is true, we
already have the Anti-Graft Law. But that does not directly
deal with plunder. That covers only the corrupt practices of
public officials as well as their spouses and relatives within
the civil degree, and the Anti-Graft law as presently worded
would not adequately or sufficiently address the problems
that we experienced during the past regime.
Senator Paterno. May I try to give the Gentleman, Mr.
President, my understanding of the bill?
Senator Tanada. Yes.
Senator Paterno. I envision that this bill or this kind of
plunder would cover a discovered interconnection of certain
acts, particularly, violations of Anti-Graft and Corrupt
Practices Act when, after the different acts are looked at, a
[Document title]
scheme of conspiracy can be detected, such scheme or
conspiracy consummated by the different criminal acts or
violations of Anti-Graft and Corrupt Practices Act, such that
the scheme or conspiracy becomes a sin, as a large scheme
to defraud the public or rob the public treasury. It
is parang robo and banda. It is considered as that. And,
the bill seeks to define or says that P100 million is that
level at which ay talagang sobra na dapat nang parusahan
ng husto. Would it be a correct interpretation or
assessment of the intent of the bill?
Senator Tanada. Yes, Mr. President. The fact that under
existing law, there can be only one offense charged in the
information, that makes it very cumbersome and difficult to
go after these grafters if we would not come out with this
bill. That is what is happening now; because of that rule
that there can be only one offense charged per information,
then we are having difficulty in charging all the public
officials who would seem to have committed these corrupt
practices. With this bill, we could come out with just one
information, and that would cover all the series of criminal
acts that may have been committed by him.
xxxxxx
Senator Romulo. To follow up the interpolations of Senator
Paterno and Maceda, this crime of plunder as envisioned
here contemplates of a series or a scheme as responded by
the distinguished Sponsor.
Senator Tanada. That is correct, Mr. President. (Record of
Senate, June 5, 1989, Vol. IV, No. 140, p. 1315)
xxxxxx
64
Senator Romulo. Mr. President, I was going to suggest prior
to Senator Maceda that on line 24: "SHALL THROUGH ONE
overt or criminal act OR…." I was just thinking of one which
is really not a "series.",
The President. If there is only one, then he has to be
prosecuted under the particular crime. But when we say
"acts of plunder" there should be, at least, two or more.
(Record of the Senate, June 6, 1989, Vol. IV, No. 141, p.
1399).
32
 Tarsia v. Nick’s Laundry & Linen Supply Co., 399 P. 2d 28, 29,
239 Or. 562; Words and Phrases, 38A p. 441.
For purposes of Rule permitting government to charge
several defendants under one indictment if they have
participated in same "series" of acts or transactions, a
"series" is something more than mere "similar" acts.
33
 Opposition to the Motion to Quash of Accused Joseph Estrada
dated June 21, 2001, p. 9.
34
 Comment to the Amended Petition dated July 16, 2001, p. 14.
35
 United States v. Laub, 385 US 475, 17 L Ed 2d 526, 87 S Ct
574.
36
 State v. Nelson, 95 N.W. 2d 678.
37
 22 C.J.S. §24 (2); People v. Bevilacqua, 170 N.Y. S. 2d 423;
Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S Ct 618, 83 L.
Ed. 888; United States v. DeCadena, D.C. 105 F. Supp. 202.
38
 21 Am Jur §17 p. 129.
[Document title]
39
 Tresolini and Shapiro, American Constitutional Law, 3rd
Edition, p. 23.
40
 State v. Evans, 245 P. 2d 788, 73 Idaho 50.
41
 Abraham, Perry, Freedom and the Court, 1998, p. 25.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
YNARES-SANTIAGO, J.:
It is an ancient maxim in law that in times of frenzy and excitement,
when the desire to do justice is tarnished by anger and vengeance, there
is always the danger that vital protections accorded an accused may be
taken away.
The Plunder Law and its amendment were enacted to meet a national
problem demanding especially immediate and effective attention. By its
very nature, the law deserved or required legislative drafting of the
highest order of clarity and precision.
Substantive due process dictates that there should be no arbitrariness,
unreasonableness or ambiguity in any law which deprives a person of his
life or liberty. The trial and other procedures leading to conviction may be
fair and proper. But if the law itself is not reasonable legislation, due
process is violated. Thus, an accused may not be sentenced to suffer the
lethal injection or life imprisonment for an offense understood only after
judicial construction takes over where Congress left off, and
interpretation supplies its meaning.
65
The Constitution guarantees both substantive and procedural due
process1 as well as the right of the accused to be informed of the nature
and cause of the accusation against him. 2 Substantive due process
requires that a criminal statute should not be vague and
uncertain.3 More explicitly –
That the terms of a penal statute. . . must be sufficiently explicit to
inform those who are subject to it what conduct on their part will render
them liable to penalties, is a well–recognized requirement, consonant
alike with ordinary notions of fair play and the settled rules of law. And a
statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due
process.4
The doctrine of constitutional uncertainty is also based on the right of
the accused to be informed of the nature and cause of the
accusation.5 Fundamental fairness dictates that a person cannot be sent
to jail for a crime that he cannot with reasonable certainty know he was
committing.6 Statutes defining crimes run afoul of the due process clause
if they fail to give adequate guidance to those who would be law-abiding,
to advise defendants of the nature of the offense with which they are
charged or to guide courts trying those who are accused. 7 In short, laws
which create crime ought to be so explicit that all men subject to their
penalties may know what acts it is their duty to avoid.8
A reading of the Plunder Law immediately shows that it is phrased in a
manner not susceptible to ready or clear understanding. In the desire to
cover under one single offense of plunder every conceivable criminal
activity committed by a high government official in the course of his
duties, Congress has come out with a law unduly vague, uncertain and
broad.
The doctrines of overbreadth and void-for-vagueness in Constitutional
Law were developed in the context of freedom of speech and of the press.
[Document title]
However, they apply equally, if not more so, to capital offenses. In the
present case, what the law seeks to protect or regulate involves the
deprivation of life itself and not merely the regulation of expression.
In its early formulation, the overbreadth doctrine states that a
governmental purpose to control or prevent activities constitutionally
subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.9
A statute, especially one involving criminal prosecution, must be definite
to be valid. A statute is vague or overbroad, in violation of the due
process clause, where its language does not convey sufficiently definite
warning to the average person as to the prohibited conduct. A statute is
unconstitutionally vague if people of common intelligence must
necessarily guess at its meaning.10
It is not only prosecutors and judges who are concerned. The need for
definiteness applies with greater force to the accused and those in
positions where opportunities for them to commit the proscribed offense
are present. They must understand exactly what prohibited activity will
be punished by capital punishment. Sadly, even the record of
deliberations in Congress cited in the motion to quash shows that even
the members of the Senate who are illustrious lawyers found the Plunder
Law vague.
Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the
acquisition of at least P50,000,000.00 of ill-gotten wealth is punished
by reclusion perpetua to death, if committed as follows:
1) Through misappropriation, conversion, misuse, or malversation
of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from
66
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6) By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.11
The crimes of malversation of public funds and bribery, which appear to
be included among the modes of committing plunder, have acquired well-
defined meanings under our present penal statutes. The accused
immediately knows how to defend and justify his actions. The
prosecution understands the quantum and nature of the evidence he has
to produce in court. The Judge can apply the law with straight and
positive judgment because there is no vagueness about it.
The Sandiganbayan, however, has ruled that the Plunder Law does not
make any reference to any specific provision of laws other than R.A.
7080, as amended. It is an entirely new offense where malversation or
[Document title]
bribery become "generic terms" according to the court. And since
"generic" refers to an entire group or class of related matters, the
discretion given to the prosecutor and the judge figuratively runs riot.
Under the same paragraph of the Plunder Law, malversation is lumped
with "misuse of public funds." Misuse can be as innocuous as error or it
can be as severe as corruption or embezzlement. The terms "abuse,"
"distortion," "misapplication," "mismanagement," "poor stewardship,"
"malpractice," "debasement," or "breach of trust," all conceivably fall
under the generic term "misuse." Exactly when does an administrative
offense of misuse become the capital crime of plunder? What degree of
misuse is contemplated under the law?
A penal law violates due process where inherently vague statutory
language permits selective law enforcement. 12 Under the Plunder Law, a
crusading public officer who steps on too many important toes in the
course of his campaign could be prosecuted for a capital offense, while
for exactly the same acts, an official who tries to please everybody can be
charged whether administratively or for a much lighter offense.
For instance, direct bribery under Article 210 of the Revised Penal Code
is punished with prision mayor in its medium or minimum
periods, prision correccional in its medium period, or prision mayor in its
minimum period, depending on the manner of commission. 13 Indirect
bribery under Article 211 is punished with prision correccional in its
medium and maximum periods.14 Under the Plunder Law, the penalty
is reclusion perpetua to death. The void-for-vagueness infirmity becomes
all the more apparent if the proscribed activity is "misuse of public
funds." The prosecutor is given broad powers of selective law
enforcement. For "misuse," exactly the same acts could be punished with
death under the Plunder Law, or mere dismissal with prejudice to future
government employment under the Civil Service Law.
The provision in the Plunder Law on "implementation of decrees and
orders intended to benefit particular persons or special interests" also
67
calls for more specific elucidation. If the only person benefited is himself,
does that fall under "particular person?" Decrees and orders issued by a
top government official may be intended to benefit certain segments of
society such as farmers, manufacturers, residents of a geographical area
and the like. If in the process a close relative acquires P50,000,000.00
because of development in that sector solely because of the decree and
without lifting a finger, is that plunder? The vagueness can be better
appreciated by referring to petitioner’s arguments that the element
of mens rea in mala in se crimes has been abolished and the offenses
have been converted to mala prohibita. If the guilty intent is eliminated,
even innocent acts can be plunder. The law was not drafted for petitioner
alone. It applies to all public officers.
As petitioner has stated, what Congress did in enacting the Plunder Law
was to take out the provisions of the Revised Penal Code on
malversation, estafa, bribery, and other crimes committed by public
officers, mix these with special laws on graft and corruption and together
with a couple of non-criminal acts, combine them into a special law and
call it "plunder."
Early in the history of this Court, it ruled that in acts mala in se, the
criminal intent governs. But in those acts mala prohibita, the only
inquiry is: has the law been violated? 15 Acts constituting malversation,
estafa, and bribery are mala in se. The courts must inquire into the
criminal intent, the evil nature or wrongful disposition behind the
criminal acts. In mala prohibita crimes, there is a violation of a
prohibitory law and the inquiry is, therefore, has the law been violated?
In the crime of plunder, it is enough that the acts defining malversation
or bribery are described. The court then proceeds to determine whether
the acts fall under the prohibitory terms of the law. Criminal intent no
longer has to be proved. The criminal intent to commit the crime is not
required to be proved. The desire to benefit particular persons does not
have to spring from criminal intent under the special law creating the
crime of plunder. In malversation or bribery under the Revised Penal
[Document title]
Code, the criminal intent is an important element of the criminal acts.
Under the Plunder Law, it is enough that the acts are committed.
Thus, even if the accused can prove lack of criminal intent with respect
to crimes mala in se, this will not exonerate him under the crime mala
prohibita. This violates substantive due process and the standards of fair
play because mens rea is a constitutional guarantee under the due
process clause. Indeed, as stated by the U.S. Supreme Court in Morisette
v. U.S.:16
The Government asks us by a feat of construction radically to change the
weights and balances in the scales of justice. The purpose and obvious
effect of doing away with the requirement of a guilty intent is to
ease the prosecution’s party to conviction, to strip the defendant of
such benefit as he derived at common law from innocence of evil
purpose, and to circumscribe the freedom heretofore allowed juries.
Such a manifest impairment of the immunities of the individual
should not be extended to common law crimes on judicial
initiative. (Emphasis ours)
By grafting several felonies, some mala in se and some mala
prohibita, to constitute the crime of plunder and by doing away with the
standard of proof beyond reasonable doubt for the component elements,
the State would practically be given the judicial imprimatur to impose
the extreme penalty of death on the basis of proof only of the overall
pattern of overt or criminal acts showing unlawful scheme or conspiracy.
This attempt of Congress to tip the scales of criminal justice in favor of
the state by doing away with the element of mens rea and to pave the
way for the accused to be convicted by depriving him of the defense of
criminal intent as to mala in se components of plunder will be anathema
to substantive due process which insures "respect for those personal
immunities which are so rooted in the traditions and conscience of our
people as to be ranked as fundamental."17
68
Equally disagreeable is the provision of the Plunder Law which does away
with the requirement that each and every component of the criminal act
of plunder be proved and instead limits itself to proving only a pattern of
overt acts indicative of the unlawful scheme or conspiracy. 18 In effect, the
law seeks to penalize the accused only on the basis of a proven scheme
or conspiracy, and does away with the rights of the accused insofar as
the component crimes are concerned. In other words, R.A. No. 7080
circumvents the obligation of the prosecution to prove beyond reasonable
doubt every fact necessary to constitute the crime of plunder, because
the law requires merely proof of a pattern of overt acts showing an
unlawful scheme or conspiracy. What aggravates matters on this point is
that under controlling case law, conspiracy to defraud is not punishable
under the Revised Penal Code.19 Cutting corners on the burden of proof
is unconstitutional because the standard of reasonable doubt is part of
the due process safeguard accorded an accused. The due process clause
protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with
which he is charged.20
Under R.A. 7659, plunder is a heinous crime punishable by death. It is
described as grievous, odious and hateful because of its inherent or
magnified wickedness, viciousness, atrocity, and perversity. There can be
no quarrel with the legislative objective of reducing the upsurge of such
crimes which affect sustainable economic development and undermine
the people’s faith in Government and the latter’s ability to maintain
peace and order. Nevertheless, due process commands that even though
the governmental purpose is legitimate and substantial, that purpose
cannot be pursued by means so vague and broad that they infringe on
life or stifle liberty when the end can be more narrowly achieved through
existing penal statutes.
Where the statute has an overbroad sweep just as when it is vague, the
hazard of loss or impairment of life or liberty is critical. 21
The problem of vagueness is reduced or eliminated if the different
schemes mentioned in the law as used in the acquisition of ill-gotten
[Document title]
wealth are prosecuted under existing penal law. The offenses are by their
nature distinct and separate from each other and have acquired
established meanings.
Thus, the acts of misappropriation or malversation may be prosecuted as
separate offenses. So may the receipt of commissions, gifts, or kickbacks
by higher officials in connection with government contracts. The four
other methods or schemes mentioned in the law may be the objects of
separate penal statutes.
When the law creates a new crime of plunder through a combination or
series of overt or criminal acts, the courts have to supply missing
elements if conviction is to be achieved.
Bribery is punished as plunder under the law only when there is a
combination or series of criminal acts. But when do certain acts
constitute a combination or series? Does the Plunder law provide that
two or three acts of one crime of bribery constitute a combination or
series which qualify bribery into plunder? Or does bribery have to be
conjoined with the separate offense of malversation to become a
combination? Or with malversation and fraudulent conveyance or
disposition of public assets or one of the other means or schemes before
it becomes a series?
I find it difficult to accept the wide discretion given to the prosecution by
the Plunder Law. An elective official who is a political threat may be
charged for plunder as one single offense punishable by death while one
in the good graces of the powers-that-be is charged only under the
Revised Penal Code.
The confusion generated by a vague law is exemplified in the
informations filed against petitioner in this case. Petitioner was charged
with eight crimes, namely: [1] plunder; [2] violation of Section 3 (e) of R.A.
3019; [3] violation of Section 3 (a) of R.A. 3019; [4] another violation of
69
Section 3 (e) of R.A. 3019; [5] violation of Section 3 (c) of R.A. 3019; [6]
violation of Section 7 (d) of R.A. 6713; [7] perjury; [8] illegal use of alias.
Only twelve days later, the prosecution withdrew five (5) of the
informations which it consolidated into only one offense of plunder. The
prosecution was not clear about the steps to take in instances where the
words "combination" or "series" may or may not apply. It could not
understand the coverage of the law as acts repetitive of the same offense
or acts constituting one crime lumped up with other crimes or both
criminal and non-criminal acts punished as one new offense of plunder.
In the following exchange during the deliberations on Senate Bill No.
733, Senators Neptali Gonzales and Wigberto Tanada voiced serious
doubts on the constitutionality of the definition of plunder, thus:
Senator Gonzales:
To commit the offense of plunder, as defined in this act, and while
constituting a single offense, it must consist of a series of overt or
criminal acts, such as bribery, extortion, malversation of public funds,
swindling, falsification of public documents, coercion, theft, fraud, and
illegal exaction and graft or corrupt practices and like offenses. Now, Mr.
President, I think this provision, by itself will be vague. I am afraid
that it may be faulted for being violative of the due process clause
and the right to be informed of the nature and cause of accusation
of an accused. Because what is meant by "series of overt or criminal
acts?" I mean, would 2, 4, or 5 constitute a series? During the period
of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is robbery in band by
the number of participants therein. In this particular case, probably, we
can statutorily provide for the definition of "series" so that two, for
example, would that already be a series? Or, three, what would be
the basis for such determination?
Senator Tanada:
[Document title]
I think, Mr. President, that would be called for, this being a penal
legislation, we should be very clear as to what it encompasses;
otherwise, we may contravene the constitutional provision on the
right of accused to due process. (Emphasis ours)22
The foregoing concerns to statutorily provide for the definition of "series"
or "combination" have, however, not been addressed and the terms were
left undefined. The law, as presently crafted, does not specify whether a
"series" means two, three, four or even more of the overt or criminal acts
listed in Section 1 (d) of R.A. 7080.
Even more difficult to accept is when the trial court has to supply the
missing elements, in effect taking over corrective or punitive legislation
from Congress. The attempts of the Sandiganbayan in the questioned
Resolution do not clarify. They instead serve to confuse and increase the
ambiguity even more.
The Sandiganbayan interprets the words "combination" and "series" of
overt or criminal acts through terms found in American decisions like
"pattern," "conspiracy," "over-all unlawful scheme," or "general plan of
action or method."
The above definitions are not found in the Plunder Law. The use of such
phrases as "over-all scheme" or "general plan" indicates that the
Sandiganbayan is expanding the coverage of the law through the use of
ambiguous phrases capable of dual or multiple applications. When do
two or three acts of the same offense of malversation constitute a
"pattern," "a general plan of action," or an "over-all scheme?" Would one
malversation in the first week of a public officer’s tenure and another
similar act six (6) years later become a "combination," a "pattern," or a
"general plan of action?"
I agree with petitioner’s concern over the danger that the trial court may
allow the specifications of details in an information to validate a statute
inherently void for vagueness. An information cannot rise higher than
70
the statute upon which it is based. Not even the construction by the
Sandiganbayan of a vague or ambiguous provision can supply the
missing ingredients of the Plunder Law.
The right of an accused to be informed of the nature and cause of the
accusation against him is most often exemplified in the care with which a
complaint or information should be drafted. However, the clarity and
particularity required of an information should also be present in the law
upon which the charges are based. If the penal law is vague, any
particularity in the information will come from the prosecutor. The
prosecution takes over the role of Congress.
The fact that the details of the charges are specified in the Information
will not cure the statute of its constitutional infirmity. If on its face the
challenged provision is repugnant to the due process clause,
specification of details of the offense intended to be charged would not
serve to validate it.23 In other words, it is the statute, not the accusation
under it, that prescribes the rule to govern conduct and warns against
transgression. No one may be required at peril of life, liberty or property
to speculate as to the meaning of penal statutes. All are entitled to be
informed as to what the State commands or forbids. 24
Definiteness is a due process requirement. It is especially important in
its application to penal statutes. Vagueness and unintelligibility will
invariably lead to arbitrary government action. The purpose of the due
process clause is to exclude everything that is arbitrary and capricious
affecting the rights of the citizen. 25 Congress, in exercising its power to
declare what acts constitute a crime, must inform the citizen with
reasonable precision what acts it intends to prohibit so that he may have
a certain understandable rule of conduct and know what acts it is his
duty to avoid.26
The questioned statutes were enacted purportedly in the interest of
justice, public peace and order, and the rule of law. These purposes are
not served by R.A. Nos. 7080 and 7659. These statutes allow the
[Document title]

prosecutors and the courts arbitrary and too broad discretionary powers
in their enforcement. Fair, equal and impartial justice would be denied.
For all the foregoing reasons, I vote to grant the petition and nullify the
Plunder Law for being unconstitutional.
Footnotes
12
 Smith v. Goguen, 415 U.S. 566.
13
 "Any public officer who shall agree to perform an act
constituting a crime, in connection with the performance of his
official duties, in consideration of any offer, promise, gift or
present received by such officer, personally or through the
mediation of another, shall suffer the penalty of prision mayor in
its medium and minimum periods and a fine of not less than three
times the value of the gift, in addition to the penalty corresponding
to the crime agreed upon, if the same shall have been committed.

1
 Constitution, Article III, Sections 1, 12 & 14. "If the gift was accepted by the officer in consideration of
the execution of an act which does not constitute a crime,
2
 Constitution, Article III, Section 14. and the officer executed said act, he shall suffer the same
penalty provided in the preceding paragraph; and if said act
3
 People v. Nazario, 165 SCRA 186, 195 [1988]. shall not have been accomplished, the officer shall suffer
the penalties of prision correccional in its medium period
4 and a fine of not less than twice the value of such gift.
 Connally v. General Construction Co., 269 U.S. 385 [1926].

5 "If the object for which the gift was received or promised
 Yu Cong Eng v. Trinidad, 271 U.S. 500 [1926].
was to make the public officer refrain from doing something
6 which it was his official duty to do, he shall suffer the
 People v. Nazario, supra; Scull v. Commonwealth, 359 U.S. 344,
penalties of prision correccional in its maximum period
353.
to prision mayor in its minimum period and a fine of not
7
less than three times the value of such gift.
 Musser v. Utah, 333 U.S. 95; 92 L Ed. 562.

8
"In addition to the penalties provided in the preceding
 U.S. v. Brewer, 139 U.S. 278, 35 L Ed. 190, 193. paragraphs, the culprit shall suffer the penalty of special
9
temporary disqualification.
 National Association for the Advancement of Colored People
(NAACP) v. Alabama, 377 U.S. 288. "The provisions contained in the preceding paragraphs shall
10
be made applicable to assessors, arbitrators, appraisal and
 U.S. v. Petrillo, 332 U.S. 1; U.S. v. Spector, 343 U.S. 169; claim commissioners, experts or any other persons
U.S. v. Darby, 312 U.S. 100. performing public duties."
11
 Republic Act No. 7080, Section 1 (d).

71
[Document title]

14 26
 "The penalties of prision correccional in its medium and  Musser v. Utah, supra; Giaccio v. Pennsylvania, 382 U.S. 399;
maximum periods, suspension and public censure shall be United States v. Brewer, supra.
imposed upon any public officer who shall accept gifts offered to
him by reason of his office."
The Lawphil Project - Arellano Law Foundation
15
 U.S. v. Go Chico, 14 Phil. 134 [1909].

16
 342 U.S. 246.

17
 Rochin v. California, 324 U.S. 165, 168. MENDOZA, J., concurring in the judgment:

18
 Republic Act No. 7080, "Section 4. Rule of Evidence. –-- For
purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass,
accumulate of acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt criminal acts
indicative of the overall unlawful scheme or conspiracy."
19
 U.S. v. Lim Buanco, 14 Phil. 472 [1910]; U.S. v. Remigio, 39
Phil. 599 [1919].
20
 In re Winship, 397 U.S. 358 ,364.
Before I explain my vote, I think it necessary to restate the basic facts.
Petitioner Joseph Ejercito Estrada was President of the Philippines until
January 20, 2001 when he was forced to vacate the presidency by people
power and then Vice President Gloria Macapagal-Arroyo succeeded him
in office.1 He was charged, in eight cases filed with the Sandiganbayan,
with various offenses committed while in office, among them plunder, for
allegedly having amassed ill-gotten wealth in the amount of P4.1 billion,
more or less. He moved to quash the information for plunder on the
ground that R.A. No. 7080, otherwise called the Anti-Plunder Law, is
unconstitutional and that the information charges more than one
offense.

21
 See Keyshian v. Board of Regents of the University of the State In its resolution dated July 9, 2001, the Sandiganbayan denied
of New York, 385 U.S. 589; and Shelton v. Tucker, 364 U.S. 479. petitioner’s motion, along with those filed by his co-accused, Edward
Serapio, and his son, Jose "Jinggoy" Estrada. Petitioner brought this
22
 Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310. petition for certiorari and prohibition under Rule 65 to set aside the
Sandiganbayan’s resolution principally on the ground that the Anti-
23 Plunder Law is void for being vague and overbroad. We gave due course
 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
to the petition and required respondents to file comments and later
24 heard the parties in oral arguments on September 18, 2001 and on their
 Ibid., p. 453.
memoranda filed on September 28, 2001 to consider the constitutional
25
claims of petitioner.
 Nebbia v. New York, 291 U.S. 502.

72
[Document title]
I. THE ANTI-PLUNDER LAW
The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July
12, 1991 pursuant to the constitutional mandate that "the State shall
maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption." 2 Section 2 of the
statute provides:
Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by
himself or in connivance with members of his family, relatives by affinity
or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section
1(d) hereof in the aggregate amount or total value of at least Fifty million
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated
with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived
from the deposit or investment thereof forfeited in favor of the State. (As
amended by Sec. 12, R.A. No. 7659).
The term "ill-gotten wealth" is defined in §1(d) as follows:
"Ill-gotten wealth," means any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
73
1) Through misappropriation, conversion, misuse, or malversation
of public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries.
4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6) By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.
Section 4 of the said law states:
Rule of Evidence. ¾ For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish
[Document title]
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy.
II. ANTI-PLUNDER LAW NOT TO BE JUDGED
"ON ITS FACE"
The amended information against petitioner charges violations of §2, in
relation to §1(d)(1)(2), of the statute. It reads:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office
of the Ombudsman, hereby accuses former President of the Republic of
the Philippines, Joseph Ejercito Estrada a.k.a "Asiong Salonga" and a.k.a
"Jose Velarde," together with Jose "Jinggoy" Estrada, Charlie "Atong"
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a.
Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, and John Does & Jane Does, of the crime of plunder, defined and
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, then a public officer, being then the President of
the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his
family, relatives by affinity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his
official position, authority, relationship, connection, or influence, did
then and there wilfully, unlawfully and criminally amass, accumulate
and acquire by himself, directly or indirectly, ill-gotten wealth in the
aggregate amount or total value of four billion ninety seven million eight
hundred four thousand one hundred seventy three pesos and seventeen
centavos [₱4,097,804,173.17], more or less, thereby unjustly enriching
himself or themselves at the expense and to the damage of the Filipino
74
people and the Republic of the Philippines, through any or a combination
or a series of overt or criminal acts, or similar schemes or means,
described as follows:
(a) by receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of five hundred forty-
five million pesos (₱545,000,000.00), more or less, from illegal
gambling in the form of gift, share, percentage, kickback or any
form of pecuniary benefit, by himself and/or in connivance with
co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda
T. Ricaforte, Edward Serapio, and John Does and Jane Does, in
consideration of toleration or protection of illegal gambling;
(b) by diverting, receiving, misappropriating, converting or
misusing directly or indirectly, for his or their personal gain and
benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS [₱130,000,000.00], more or less, representing a
portion of the two hundred million pesos [₱200,000,000.00]
tobacco excise tax share allocated for the Province of Ilocos Sur
under R.A. No. 7171, by himself and/or in connivance with co-
accused Charlie "Atong" Ang, Alma Alfaro, John Doe a.k.a.
Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe
a.k.a. Delia Rajas, and other John Does and Jane Does;
(c) by directing, ordering and compelling, for his personal gain and
benefit, the Government Service Insurance System (GSIS) to
purchase 351,878,000 shares of stocks, more or less, and the
Social Security System (SSS), 329,855,000 shares of stocks, more
or less, of the Belle Corporation in the amount of more or less one
billion one hundred two million nine hundred sixty five thousand
six hundred seven pesos and fifty centavos [₱1,102,965,607.50]
and more or less seven hundred forty four million six hundred
twelve thousand and four hundred fifty pesos [₱744,612,450.00],
respectively, or a total of more or less one billion eight hundred
forty seven million five hundred seventy eight thousand fifty seven
pesos and fifty centavos [₱1,847,578,057.50]; and by collecting or
[Document title]
receiving, directly or indirectly, by himself and/or in connivance
with John Does and Jane Does, commissions or percentages by
reason of said purchases of shares of stock in the amount of one
hundred eighty nine million seven hundred thousand pesos
[₱189,700,000.00], more or less, from the Belle Corporation which
became part of the deposit in the Equitable-PCI Bank under the
account name "Jose Velarde";
(d) by unjustly enriching himself from commissions, gifts, shares,
percentages, kickbacks, or any form of pecuniary benefits, in
connivance with John Does and Jane Does, in the amount of more
or less three billion two hundred thirty three million one hundred
four thousand one hundred seventy three pesos and seventeen
centavos [₱3,233,104,173.17] and depositing the same under his
account name "Jose Velarde" at the Equitable-PCI Bank.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001
But, although this is a prosecution under §2, in relation to §1(d)(1)(2),
what we are seeing here is a wholesale attack on the validity of the entire
statute. Petitioner makes little effort to show the alleged invalidity of the
statute as applied to him. His focus is instead on the statute as a whole
as he attacks "on their face" not only §§1(d)(1)(2) of the statute but also
its other provisions which deal with plunder committed by illegal or
fraudulent disposition of government assets (§1(d)(3)), acquisition of
interest in business (§1(d)(4)), and establishment of monopolies and
combinations or implementation of decrees intended to benefit particular
persons or special interests (§1(d)(5)).
These other provisions of the statute are irrelevant to this case. What
relevance do questions regarding the establishment of monopolies and
combinations, or the ownership of stocks in a business enterprise, or the
illegal or fraudulent dispositions of government property have to the
75
criminal prosecution of petitioner when they are not even mentioned in
the amended information filed against him? Why should it be important
to inquire whether the phrase "overt act" in §1(d) and §2 means the same
thing as the phrase "criminal act" as used in the same provisions when
the acts imputed to petitioner in the amended information are criminal
acts? Had the provisions of the Revised Penal Code been subjected to
this kind of line-by-line scrutiny whenever a portion thereof was involved
in a case, it is doubtful if we would have the jurisprudence on penal law
that we have today. The prosecution of crimes would certainly have been
hampered, if not stultified. We should not even attempt to assume the
power we are asked to exercise. "The delicate power of pronouncing an
Act of Congress unconstitutional is not to be exercised with reference to
hypothetical cases . . . . In determining the sufficiency of the notice a
statute must of necessity be examined in the light of the conduct with
which a defendant is charged." 3
Nonetheless, it is contended that because these provisions are void for
being vague and overbroad, the entire statute, including the part under
which petitioner is being prosecuted, is also void. And if the entire
statute is void, there is no law under which he can be prosecuted for
plunder. Nullum crimen sine lege, nullum poena sine lege.
Two justifications are advanced for this facial challenge to the validity of
the entire statute. The first is that the statute comes within the specific
prohibitions of the Constitution and, for this reason, it must be given
strict scrutiny and the normal presumption of constitutionality should
not be applied to it nor the usual judicial deference given to the judgment
of Congress.4 The second justification given for the facial attack on the
Anti-Plunder Law is that it is vague and overbroad. 5
We find no basis for such claims either in the rulings of this Court or of
those of the U.S. Supreme Court, from which petitioner’s counsel
purports to draw for his conclusions. We consider first the claim that the
statute must be subjected to strict scrutiny.
[Document title]
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
Petitioner cites the dictum in Ople v. Torres6 that "when the integrity of a
fundamental right is at stake, this Court will give the challenged law,
administrative order, rule or regulation stricter scrutiny" and that "It will
not do for authorities to invoke the presumption of regularity in the
performance of official duties." As will presently be shown, "strict
scrutiny," as used in that decision, is not the same thing as the "strict
scrutiny" urged by petitioner. Much less did this Court rule that because
of the need to give "stricter scrutiny" to laws abridging fundamental
freedoms, it will not give such laws the presumption of validity.
Petitioner likewise cites "the most celebrated footnote in [American]
constitutional law," i.e., footnote 4 of the opinion in United States v.
Carolene Products Co.,7 in which it was stated:
There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a
specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be
embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts
those political processes which can ordinarily be expected to bring about
repeal of undesirable legislation, is to be subjected to more exacting
judicial scrutiny under the general prohibitions of the Fourteenth
Amendment than are most other types of legislation.
Nor need we inquire whether similar considerations enter into the review
of statutes directed at particular religious, or national, or racial
minorities: whether prejudice against discrete and insular minorities may
be a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching
judicial inquiry.
76
Again, it should be noted that what the U.S. Supreme Court said is that
"there may be narrower scope for the operation of the presumption of
constitutionality" for legislation which comes within the first ten
amendments to the American Federal Constitution compared to
legislation covered by the Fourteenth Amendment Due Process Clause.
The American Court did not say that such legislation is not to be
presumed constitutional, much less that it is presumptively invalid, but
only that a "narrower scope" will be given for the presumption of
constitutionality in respect of such statutes. There is, therefore, no
warrant for petitioner’s contention that "the presumption of
constitutionality of a legislative act is applicable only where the Supreme
Court deals with facts regarding ordinary economic affairs, not where the
interpretation of the text of the Constitution is involved." 8
What footnote 4 of the Carolene Products case posits is a double standard
of judicial review: strict scrutiny for laws dealing with freedom of the
mind or restricting the political process, and deferential or rational basis
standard of review for economic legislation. As Justice (later Chief
Justice) Fernando explained in Malate Hotel and Motel Operators Ass’n v.
The City Mayor,9 this simply means that "if the liberty involved were
freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the
liberty curtailed affects what are at the most rights of property, the
permissible scope of regulatory measures is wider."
Hence, strict scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race and facial challenges are
allowed for this purpose. But criminal statutes, like the Anti-Plunder
Law, while subject to strict construction, are not subject to strict
scrutiny. The two (i.e., strict construction and strict scrutiny) are not the
same. The rule of strict construction is a rule of legal hermeneutics
which deals with the parsing of statutes to determine the intent of the
legislature. On the other hand, strict scrutiny is a standard of judicial
review for determining the quality and the amount of governmental
interest brought to justify the regulation of fundamental freedoms. It is
set opposite such terms as "deferential review" and "intermediate review."
[Document title]
Thus, under deferential review, laws are upheld if they rationally further
a legitimate governmental interest, without courts seriously inquiring
into the substantiality of such interest and examining the alternative
means by which the objectives could be achieved. Under intermediate
review, the substantiality of the governmental interest is seriously looked
into and the availability of less restrictive alternatives are considered.
Under strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest. 10
Considering these degrees of strictness in the review of statutes, how
many criminal laws can survive the test of strict scrutiny to which
petitioner proposes to subject them? How many can pass muster if, as
petitioner would have it, such statutes are not to be presumed
constitutional? Above all, what will happen to the State’s ability to deal
with the problem of crimes, and, in particular, with the problem of graft
and corruption in government, if criminal laws are to be upheld only if it
is shown that there is a compelling governmental interest for making
certain conduct criminal and if there is no other means less restrictive
than that contained in the law for achieving such governmental interest?
B. Vagueness and Overbreadth Doctrines, as Grounds for Facial
Challenge,
Not Applicable to Penal Laws
Nor do allegations that the Anti-Plunder Law is vague and overbroad
justify a facial review of its validity. The void-for-vagueness doctrine
states that "a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application, violates the first
essential of due process of law." 11 The overbreadth doctrine, on the other
hand, decrees that "a governmental purpose may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms."12
77
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent
value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement
that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." 13 The
possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of
others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an ‘overbreadth’ doctrine
outside the limited context of the First Amendment." 14 In Broadrick v.
Oklahoma,15 the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For
this reason, it has been held that "a facial challenge to a legislative Act is
… the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid." 16 As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all
[Document title]
its possible applications. "A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied
to the conduct of others."17
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is
that "one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its
application might be unconstitutional."18 As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] ‘as
applied’ to a particular defendant."19 Consequently, there is no basis for
petitioner’s claim that this Court review the Anti-Plunder Law on its face
and in its entirety.
C. Anti-Plunder Law Should be Construed "As Applied"
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected. 20 It
constitutes a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts. 21 But, as the U.S. Supreme
Court pointed out in Younger v. Harris:22
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
78
and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
This is the reason "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly and
only as a last resort," 23 and is generally disfavored.24 In determining the
constitutionality of a statute, therefore, its provisions which are alleged
to have been violated in a case must be examined in the light of the
conduct with which the defendant is charged.25
This brings me to the question whether, as applied, §2, in relation to
§1(d)(1)(2), of the Anti-Plunder Law is void on the ground of vagueness
and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD
As earlier noted, the case against petitioner Joseph Ejercito Estrada in
the Sandiganbayan is for violation of §2, in relation to §1(d)(1)(2), of the
Anti-Plunder Law, which, so far as pertinent, provide:
SEC. 2. Definition of the Crime of Plunder; Penalties. ¾ Any public officer
who, by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section
1(d) hereof in the aggregate amount or total value of at least Fifty million
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death....
SEC. 1. Definition of Terms. ¾ ...
(d) "Ill-gotten wealth," means any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2)
[Document title]
hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation
of public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer concerned;
The charge is that in violation of these provisions, during the period June
1998 to January 2001, petitioner, then the President of the Philippines,
willfully, unlawfully, and criminally amassed wealth in the total amount
of P4,097,804,173.17, more or less, through "a combination or series of
overt or criminal acts," to wit: (1) by receiving or collecting the total
amount of P545,000,000.00, more or less, from illegal gambling by
himself and/or in connivance with his co-accused named therein, in
exchange for protection of illegal gambling; (2) by misappropriating,
converting, or misusing, by himself or in connivance with his co-accused
named therein, public funds amounting to P130,000,000.00, more or
less, representing a portion of the share of the Province of Ilocos Sur in
the tobacco excise tax; (3) by ordering the GSIS and the SSS to buy
shares of stocks of the Belle Corp., worth P1,102,965,607.50 and
P744,612,450.00 respectively, or the total amount of P1,847,578,057.50,
for which he received as commission the amount of P189,700,000.00,
more or less, from Belle Corp.; (4) by unjustly enriching himself from
commissions, gifts, shares, percentages, and kickbacks in the amount of
P3,233,104,173.17, which he deposited in the Equitable-PCI Bank under
the name of "Jose Velarde."
Anyone reading the law in relation to this charge cannot possibly be
mistaken as to what petitioner is accused of in Criminal Case No. 26558
79
of the Sandiganbayan. But, repeatedly, petitioner complains that the law
is vague and deprives him of due process. He invokes the ruling
in Connally v. General Constr. Co.26 that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law." He does
this by questioning not only §2, in relation to §1(d)(1)(2), as applied to
him, but also other provisions of the Anti-Plunder Law not involved in
this case. In 55 out of 84 pages of discussion in his Memorandum,
petitioner tries to show why on their face these provisions are vague and
overbroad by asking questions regarding the meaning of some words and
phrases in the statute, to wit:
1. Whether "series" means two, three, or four overt or criminal
acts listed in §1(d) in view of the alleged divergence of
interpretation given to this word by the Ombudsman, the Solicitor
General, and the Sandiganbayan, and whether the acts in a series
should be directly related to each other;
2. Whether "combination" includes two or more acts or at least two
of the "means or similar schemes" mentioned in §1(d);
3. Whether "pattern" as used in §1(d) must be related to the word
"pattern" in §4 which requires that it be "indicative of an overall
unlawful scheme or conspiracy";
4. Whether "overt" means the same thing as "criminal";
5. Whether "misuse of public funds" is the same as "illegal use of
public property or technical malversation";
6. Whether "raids on the public treasury" refers to raids on the
National Treasury or the treasury of a province or municipality;
[Document title]
7. Whether the receipt or acceptance of a gift, commission,
kickback, or pecuniary benefits in connection with a government
contract or by reason of his office, as used in §1(d)(2), is the same
as bribery in the Revised Penal Code or those which are
considered corrupt practices of public officers;
8. Whether "illegal or fraudulent conveyance or disposition of
assets belonging to the National Government," as used in §1(d)(3),
refers to technical malversation or illegal use of public funds or
property in the Revised Penal Code;
9. Whether mere ownership of stocks in a private corporation,
such as a family firm engaged in fishing, is prohibited under §1(d)
(4);
10. Whether the phrase "monopolies or other combinations in
restraint of trade" in §1(d)(5) means the same thing as "monopolies
and combinations in restraint of trade" in the Revised Penal Code
because the latter contemplates monopolies and combinations
established by any person, not necessarily a public officer; and
11. Whether under §1(d)(5) it is the public officer who intends to
confer benefit on a particular person by implementing a decree or
it is the decree that is intended to benefit the particular person
and the public officer simply implements it.
Many more questions of this tenor are asked in the memorandum of
petitioner27 as well as in the dissent of MR. JUSTICE KAPUNAN. Not only
are they irrelevant to this case, as already pointed out. It is also evident
from their examination that what they present are simply questions of
statutory construction to be resolved on a case-to-case basis. Consider,
for example, the following words and phrases in §1(d) and §2:
A. "Combination or series of overt or criminal acts"
80
Petitioner contends that the phrase "combination or series of overt, or
criminal acts" in §1(d) and §2 should state how many acts are needed in
order to have a "combination" or a "series." It is not really required that
this be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites the
following remarks of Senators Gonzales and Tañada during the
discussion of S. No. 733 in the Senate:
SENATOR GONZALES. To commit the offense of 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 of public
funds, swindling, falsification of public documents, coercion, theft, fraud,
and illegal exaction, and graft or corrupt practices act and like offenses.
Now, Mr. President, I think, this provision, by itself, will be vague. I am
afraid that it might be faulted for being violative of the due process
clause and the right to be informed of the nature and cause of
accusation of an accused. Because, what is meant by "series of overt or
criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the
period of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is robbery in band by
the number of participants therein.
In this particular case, probably, we can statutorily provide for the
definition of "series" so that two, for example, would that be already a
series? Or, three, what would be the basis for such a determination?
SENATOR TAÑADA. I think, Mr. President, that would be called for, this
being a penal legislation, we should be very clear as to what it
encompasses; otherwise, we may contravene the constitutional provision
on the right of the accused to due process.28
But, as the later discussion in the Senate shows, the senators in the end
reached a consensus as to the meaning of the phrase so that an
enumeration of the number of acts needed was no longer proposed.
Thus, the record shows:
[Document title]
SENATOR MACEDA. In line with our interpellations that sometimes "one"
or maybe even "two" acts may already result in such a big amount, on
line 25, would the Sponsor consider deleting the words "a series of overt
or." To read, therefore: "or conspiracy COMMITTED by criminal acts
such." Remove the idea of necessitating "a series." Anyway, the criminal
acts are in the plural.
SENATOR TAÑADA. That would mean a combination of two or more of
the acts mentioned in this.
THE PRESIDENT. Probably, two or more would be . . .
SENATOR MACEDA. Yes, because "a series" implies several or many; two
or more.
SENATOR TAÑADA: Accepted, Mr. President.
....
THE PRESIDENT: If there is only one, then he has to be prosecuted
under the particular crime. But when we say "acts of plunder" there
should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing
laws, Mr. President.29
Indeed, the record shows that no amendment to S. No. 733 was proposed
to this effect. To the contrary, Senators Gonzales and Tañada voted in
favor of the bill on its third and final reading on July 25, 1989. The
ordinary meaning of the term "combination" as the "union of two things
or acts" was adopted, although in the case of "series," the senators
agreed that a repetition of two or more times of the same thing or act
would suffice, thus departing from the ordinary meaning of the word as
"a group of usually three or more things or events standing or succeeding
in order and having a like relationship to each other," or "a spatial or
81
temporal succession of persons or things," or "a group that has or admits
an order of arrangement exhibiting progression." 30
In the Bicameral Conference Committee on Justice meeting held on May
7, 1991, the same meanings were given to the words "combination" and
"series." Representative Garcia explained that a combination is composed
of two or more of the overt or criminal acts enumerated in §1(d), while a
series is a repetition of any of the same overt or criminal acts. Thus:
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say, THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL
ACTS AS MENTIONED IN SECTION ONE HEREOF. Now 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
else are included, how about a series of the same act? For example,
through misappropriation, conversion, misuse, will these be included
also?
....
REP. ISIDRO: When we say combination, it seems that ¾
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
THE CHAIRMAN (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes, combination is not twice ¾ but
combination, two acts.
[Document title]
REP. ISIDRO: So in other words, that’s it. When we 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 series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: That’s not [a] series. It’s a combination. Because when we
say combination or series, we seem to say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it, really, from
ordinary crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime but we have
here a combination or series of overt or criminal acts. So. . .
....
REP. ISIDRO: When you say "combination", two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAÑADA): Two different. . . .
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha. . .
REP. ISIDRO: Now a series, meaning, repetition. . .31
Thus, resort to the deliberations in Congress will readily reveal that the
word "combination" includes at least two different overt or criminal acts
listed in R.A. No. 7080, such as misappropriation (§1(d)(1)) and taking
undue advantage of official position (§1(d)(6)). On the other hand, "series"
82
is used when the offender commits the same overt or criminal act more
than once. There is no plunder if only one act is proven, even if the ill-
gotten wealth acquired thereby amounts to or exceeds the figure fixed by
the law for the offense (now P50,000,000.00). The overt or criminal acts
need not be joined or separated in space or time, since the law does not
make such a qualification. It is enough that the prosecution proves that
a public officer, by himself or in connivance with others, amasses wealth
amounting to at least P50 million by committing two or more overt or
criminal acts.
Petitioner also contends that the phrase "series of acts or transactions" is
the subject of conflicting decisions of various Circuit Courts of Appeals in
the United Sates. It turns out that the decisions concerned a phrase in
Rule 8(b) of the Federal Rules of Criminal Procedure which provides:
(b) Joinder of Defendants: Two or more defendants may be charged in the
same indictment or information if they are alleged to have participated in
the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses. Such defendants may be
charged in one or more counts together or separately and all of the
defendants need not be charged on each count. (Emphasis added)
The fact that there is a conflict in the rulings of the various courts does
not mean that Rule 8(b) is void for being vague but only that the U.S.
Supreme Court should step in, for one of its essential functions is to
assure the uniform interpretation of federal laws.
We have a similar provision in Rule 3, §6 of the 1997 Code of Civil
Procedure. It reads:
SEC. 6. Permissive joinder of parties. ¾ All persons in whom or against
whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise provided in
these Rules, join as plaintiffs or be joined as defendants in one
[Document title]
complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the court
may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with
any proceedings in which he may have no interest. (Emphasis added)
This provision has been in our Rules of Court since 1940 but it has never
been thought of as vague. It will not do, therefore, to cite the conflict of
opinions in the United States as evidence of the vagueness of the phrase
when we do not have any conflict in this country.
B. "Pattern of overt or criminal acts"
Petitioner contends that it is not enough that there be at least two acts to
constitute either a combination or series because §4 also mentions "a
pattern of overt or criminal acts indicative of the overall scheme or
conspiracy," and "pattern" means "an arrangement or order of things or
activity."
A "pattern of overt or criminal acts" is required in §4 to prove "an
unlawful scheme or conspiracy." In such a case, it is not necessary to
prove each and every criminal act done in furtherance of the scheme or
conspiracy so long as those proven show a pattern indicating the scheme
or conspiracy. In other words, when conspiracy is charged, there must be
more than a combination or series of two or more acts. There must be
several acts showing a pattern which is "indicative of the overall scheme
or conspiracy." As Senate President Salonga explained, if there are 150
constitutive crimes charged, it is not necessary to prove beyond
reasonable doubt all of them. If a pattern can be shown by proving, for
example, 10 criminal acts, then that would be sufficient to secure
conviction.32
The State is thereby enabled by this device to deal with several acts
constituting separate crimes as just one crime of plunder by allowing
their prosecution by means of a single information because there is a
83
common purpose for committing them, namely, that of "amassing,
accumulating or acquiring wealth through such overt or criminal acts."
The pattern is the organizing principle that defines what otherwise would
be discreet criminal acts into the single crime of plunder.
As thus applied to petitioner, the Anti-Plunder Law presents only
problems of statutory construction, not vagueness or overbreadth.
In Primicias v. Fugoso,33 an ordinance of the City of Manila, prohibiting
the holding of parades and assemblies in streets and public places
unless a permit was first secured from the city mayor and penalizing its
violation, was construed to mean that it gave the city mayor only the
power to specify the streets and public places which can be used for the
purpose but not the power to ban absolutely the use of such places. A
constitutional doubt was thus resolved through a limiting construction
given to the ordinance.
Nor is the alleged difference of opinion among the Ombudsman, the
Solicitor General, and the Sandiganbayan as to the number of acts or
crimes needed to constitute plunder proof of the vagueness of the statute
and, therefore, a ground for its invalidation. For sometime it was thought
that under Art. 134 of the Revised Penal Code convictions can be had for
the complex crime of rebellion with murder, arson, and other common
crimes. The question was finally resolved in 1956 when this Court held
that there is no such complex crime because the common crimes were
absorbed in rebellion.34 The point is that Art. 134 gave rise to a difference
of opinion that nearly split the legal profession at the time, but no one
thought Art. 134 to be vague and, therefore, void.
Where, therefore, the ambiguity is not latent and the legislative intention
is discoverable with the aid of the canons of construction, the void for
vagueness doctrine has no application.
In Connally v. General Constr. Co.35 the test of vagueness was formulated
as follows:
[Document title]
[A] statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due
process of law.
Holmes’s test was that of the viewpoint of the bad man. In The Path of
the Law, Holmes said:
If you want to know the law and nothing else, you must look at it as a
bad man, who cares only for the material consequences which such
knowledge enables him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or outside of it, in the vaguer
sanctions of conscience.36
Whether from the point of view of a man of common intelligence or from
that of a bad man, there can be no mistaking the meaning of the Anti-
Plunder Law as applied to petitioner.
IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS REA
Petitioner argues that, in enacting the statute in question, Congress
eliminated the element of mens rea, or the scienter, thus reducing the
burden of evidence required for proving the crimes which are mala in
se.37
There are two points raised in this contention. First is the question
whether the crime of plunder is a malum in se or a malum prohibitum.
For if it is a malum prohibitum, as the Ombudsman and the Solicitor
General say it is,38 then there is really a constitutional problem because
the predicate crimes are mainly mala in se.
A. Plunder A Malum In Se Requiring Proof of Mens Rea
Plunder is a malum in se, requiring proof of criminal intent. Precisely
because the constitutive crimes are mala in se the element of mens
84
rea must be proven in a prosecution for plunder. It is noteworthy that
the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty
knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void,
petitioner cites the following remarks of Senator Tañada made during the
deliberation on S. No. 733:
SENATOR TAÑADA. . . . And the evidence that will be required to convict
him would not be evidence for each and every individual criminal act but
only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.39
However, Senator Tañada was discussing §4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman’s view,
would provide for a speedier and faster process of attending to this kind
of cases?
SENATOR TAÑADA. Yes, Mr. President . . .40
Señator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that ¾
[Document title]
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the
said 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 Justice
Holmes said: "We agree to all the generalities about not supplying
criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean." 41
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echagaray:42
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being. . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder,
rape, parricide, infanticide, kidnapping and serious illegal detention,
85
where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or
the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized
by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme
of the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that
so deeply entrenched itself in the structures of society and the psyche of
the populace. [With the government] terribly lacking the money to
provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an
actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators must
not be allowed to cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se43 and it does
not matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes are mainly mala in se. Indeed,
it 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
wrongness of the acts.
[Document title]
B. The Penalty for Plunder
The second question is whether under the statute the prosecution is
relieved of the duty of proving beyond reasonable doubt the guilt of the
defendant. It is contended that, in enacting the Anti-Plunder Law,
Congress simply combined several existing crimes into a single one but
the penalty which it provided for the commission of the crime is grossly
disproportionate to the crimes combined while the quantum of proof
required to prove each predicate crime is greatly reduced.
We have already explained why, contrary to petitioner’s contention, the
quantum of proof required to prove the predicate crimes in plunder is the
same as that required were they separately prosecuted. We, therefore,
limit this discussion to petitioner’s claim that the penalty provided in the
Anti-Plunder Law is grossly disproportionate to the penalties imposed for
the predicate crimes. Petitioner cites the following examples:
For example, please consider the following ‘combination’ or ‘series’ of
overt or criminal acts (assuming the P50 M minimum has been acquired)
in light of the penalties laid down in the Penal Code:
a. One act of indirect bribery (penalized under Art. 211 of the Revised
Penal Code with prision correccional in its medium and maximum
periods),
– combined with –
one act of fraud against the public treasury (penalized under Art. 213 of
the Revised Penal Code with prision correccional in its medium period
to prision mayor in its minimum period,
- equals -
plunder (punished by reclusion perpetua to death plus forfeiture of
assets under R.A. 7080)
86
b. One act of prohibited transaction (penalized under Art. 215 of the
revised Penal Code with prision correccional in its minimum period or
a fine ranging from P200 to P1,000 or both),
– combined with –
one act of establishing a commercial monopoly (penalized under Art. 186
of Revised Penal Code with prision correccional in its minimum period
or a fine ranging from P200 to P6,000, or both),
-equals-
plunder (punished by reclusion perpetua to death, and forfeiture of
assets under R.A. 7080.
c. One act of possession of prohibited interest by a public officer
(penalized with prision correccional in its minimum period or a fine of
P200 to P1,000, or both under Art. 216 of the Revised Penal Code),
– combined with –
one act of combination or conspiracy in restraint of trade (penalized
under Art. 186 of the Revised penal Code with prision correccional in
its minimum period, or a fine of P200 to P1,000, or both,
- equals -
plunder, punished by reclusion perpetua to death, and forfeiture of
assets)44
But this is also the case whenever other special complex crimes are
created out of two or more existing crimes. For example, robbery with
violence against or intimidation of persons under Art. 294, par. 5 of the
Revised Penal Code is punished with prision correccional in its maximum
period (4 years, 2 months, and 1 day) to prision mayor in its medium
[Document title]
period (6 years and 1 day to 8 years). Homicide under Art. 249 of the
same Code is punished with reclusion temporal (12 years and 1 day to
20 years). But when the two crimes are committed on the same occasion,
the law treats them as a special complex crime of robbery with homicide
and provides the penalty of reclusion perpetua to death for its
commission. Again, the penalty for simple rape under Art. 266-B of the
Revised Penal Code is reclusion perpetua, while that for homicide under
Art. 249 it is reclusion temporal (12 years and 1 day to 20 years). Yet,
when committed on the same occasion, the two are treated as one special
complex crime of rape with homicide and punished with a heavier
penalty of reclusion perpetua to death. Obviously, the legislature views
plunder as a crime as serious as robbery with homicide or rape with
homicide by punishing it with the same penalty. As the explanatory note
accompanying S. No. 733 explains:
Plunder, a term chosen from other equally apt terminologies
like kleptocracy and economic treason, punishes the use of high office for
personal enrichment, committed thru a series of acts done not in the
public eye but in stealth and secrecy over a period of time, that may
involve so many persons, here and abroad, and which touch so many
states and territorial units. The acts and/or omissions sought to be
penalized do not involve simple cases of malversation of public funds,
bribery, extortion, theft and graft but constitute the plunder of an entire
nation resulting in material damage to the national economy. The above-
described crime does not yet exist in Philippine statute books. Thus, the
need to come up with a legislation as a safeguard against the possible
recurrence of the depravities of the previous regime and as a deterrent to
those with similar inclination to succumb to the corrupting influences of
power.
Many other examples drawn from the Revised Penal Code and from
special laws may be cited to show that, when special complex crimes are
created out of existing crimes, the penalty for the new crime is heavier.
______________________
87
To recapitulate, had R.A. No. 7080 been a law regulating speech, I would
have no hesitation examining it on its face on the chance that some of its
provisions ¾ even though not here before us ¾ are void. For then the
risk that some state interest might be jeopardized, i.e., the interest in the
free flow of information or the prevention of "chill" on the freedom of
expression, would trump any marginal interest in security.
But the Anti-Plunder Law is not a regulation of speech. It is a criminal
statute designed to combat graft and corruption, especially those
committed by highly-placed public officials. As conduct and not speech is
its object, the Court cannot take chances by examining other provisions
not before it without risking vital interests of society. Accordingly, such
statute must be examined only "as applied" to the defendant and, if
found valid as to him, the statute as a whole should not be declared
unconstitutional for overbreadth or vagueness of its other provisions.
Doing so, I come to the following conclusions:
1. That the validity of R.A. No. 7080, otherwise known as the Anti-
Plunder Law, cannot be determined by applying the test of strict
scrutiny in free speech cases without disastrous consequences to
the State’s effort to prosecute crimes and that, contrary to
petitioner’s contention, the statute must be presumed to be
constitutional;
2. That in determining the constitutionality of the Anti-Plunder
Law, its provisions must be considered in light of the particular
acts alleged to have been committed by petitioner;
3. That, as applied to petitioner, the statute is neither vague nor
overbroad;
4. That, contrary to the contention of the Ombudsman and the
Solicitor General, the crime of plunder is a malum in se and not
a malum prohibitum and the burden of proving each and every
predicate crime is on the prosecution.
[Document title]

12
For these reasons, I respectfully submit that R.A. No. 7080 is valid and  NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338
that, therefore, the petition should be dismissed. (1958); Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231 (1960).

13
 Gooding v. Wilson, 405 U.S. 518, 521, 31 L.Ed.2d 408, 413
(1972) (internal quotation marks omitted).

14
Footnotes  United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697,
707 (1987). See also People v. De la Piedra, G.R. No. 121777, Jan.
1
 See Estrada v. Desierto, G.R. No. 146710, March 2, 2001; 24, 2001.
Estrada v. Macapagal-Arroyo, G.R. No. 146715, March 2, 2001.
15
 413 U.S. 601, 612-613, 37 L.Ed. 2d 830, 840-841 (1973).
2
 CONST., ART., Art. II, §27.
16
 United States v. Salerno, supra.
3
 United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33,
17
9 L.Ed.2d 561, 565-6 (1963) (internal quotation marks omitted).  Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494-95, 71 L.Ed.2d 362, 369 (1982).
4
 Memorandum for the Petitioner, pp. 4-7.
18
 United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529
5
 Id. at 11-66. (1960). The paradigmatic case is Yazoo & Mississippi Valley RR. v.
Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193 (1912).
6
 293 SCRA 161, 166 (1998).
19
 K. Sullivan & G. Gunther, Constitutional Law 1299 (14th ed.,
7
 304 U.S. 144, 152, 82 L.Ed. 1234, 1241 (1938) (cases cited 2001).
omitted).
20
 Id. at 1328. See also Richard H. Fallon, Jr., As Applied and
8
 Memorandum for the Petitioner, p. 5. Facial Challenges, 113 Harv. L. Rev. 1321 (2000), arguing that, in
an important sense, as applied challenges are the basic building
9
 20 SCRA 849, 865 (1967). blocks of constitutional adjudication and that determinations that
statutes are facially invalid properly occur only as logical
10
 Geoffrey R. Stone, Content-Neutral Restrictions, 54 Univ. of Chi. outgrowths of rulings on whether statutes may be applied to
L. Rev. 46, 50-53 (1987). particular litigants on particular facts.

11
 Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L.Ed.
328 (1926) cited in Ermita-Malate Hotel and Motel Operators
Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).
21
 Const., Art. VIII, §§1 and 5. Compare Angara v. Electoral
Commission, 63 Phil. 139, 158 (1936): "[T]he power of judicial
review is limited to actual cases and controversies to be exercised

88
[Document title]

31
after full opportunity of argument by the parties, and limited  Deliberations of the Joint Conference Committee on Justice held
further to the constitutional question raised or the very lis on May 7, 1991.
mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions 32
 Deliberations of the Conference Committee on Constitutional
unrelated to actualities." Amendments and Revision of Laws held on Nov. 15, 1988.
22
 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971). Accord, United 33
 80 Phil. 71 (1948).
States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of
Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 34
 People v. Hernandez, 99 Phil. 515 (1956); People v. Geronimo,
(1989). 100 Phil. 90 (1956).
23
 Broadrick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; 35
 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate
National Endowment for the Arts v. Finley, 524 U.S. 569, 580 Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849, 867
(1998). (1967).
24
 FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 36
 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.
(1990); Cruz v. Secretary of Environment and Natural Resources, Rev. 457, 459 (1897).
G.R. No. 135385, Dec. 6, 2000 (Mendoza, J., Separate Opinion).
37
 Memorandum for the Petitioner, p. 32.
25
 United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33,
9 L.Ed.2d 561, 565-6 (1963). 38
 See Memorandum for the Respondents, pp. 79-88.
26
 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate 39
 4 Record of the Senate 1316, June 5, 1989.
Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849, 867
(1967). 40
 Id.
27
 Memorandum for the Petitioner, pp. 11-66. 41
 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).
28
 4 Record of the Senate 1310, June 5, 1989. 42
 267 SCRA 682, 721-2 (1997) (emphasis added).
29
 4 Record of the Senate 1339, June 6, 1989. 43
 Black’s Law Dictionary 959 (1990); Lozano v. Martinez, 146
30
SCRA 324, 338 (1986).
 Webster’s Third New International Dictionary 2073 (1993).
44
 Memorandum for the Petitioner, pp. 62-63 (emphasis in the
original).

89
[Document title]
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
(Concurring)
PANGANIBAN, J.:
In his Petition for Certiorari under Rule 65 of the Rules of Court, former
President Joseph Ejercito Estrada seeks the annulment of the
Sandiganbayan Resolution dated July 9, 2001, which denied his Motion
to Quash. He further prays to prohibit the anti-graft court from
conducting the trial of petitioner in Criminal Case No. 26558, on the
ground that the statute under which he has been charged – the Anti-
Plunder Law or Republic Act (RA) 7080 -- is unconstitutional.
In sum, he submits three main arguments to support his thesis, as
follows:
1. "RA 7080 is vague and overbroad on its face and suffers from
structural deficiency and ambiguity." 1
2. "RA 7080 reduces the standard of proof necessary for criminal
conviction, and dispenses with proof beyond reasonable doubt of
each and every criminal act done in furtherance of the crime of
plunder."2
3. "RA 7080 has been admitted by respondent to be malum
prohibita which deprives petitioner of a basic defense in violation
of due process."3
90
I have read former President Estrada’s Petition, Reply, Memorandum and
other pleadings and listened carefully to his Oral Argument. However, I
cannot agree with his thesis, for the following reasons:
(1) RA 7080 is not vague or overbroad. Quite the contrary, it is
clear and specific especially on what it seeks to prohibit and to
penalize.
(2) The Anti-Plunder Law does not lessen the degree of proof
necessary to convict its violator -- in this case, petitioner.
(3) Congress has the constitutional power to enact laws that
are mala prohibita and, in exercising such power, does not violate
due process of law.
First Issue: "Void for Vagueness" Not Applicable
In the main, petitioner attacks RA 7080 for being allegedly vague and
ambiguous, for "wanting in its essential terms," and for failing to "define
what degree of participation means as [it] relates to the person or
persons charged with having participated with a public officer in the
commission of plunder."4
In Dans v. People,5 reiterated recently in Sajul v. Sandiganbayan,6 this
Court debunked the "void for vagueness" challenge to the
constitutionality of Section 3(g) of the Anti-Graft Law (RA 3019, as
amended) and laid down the test to determine whether a statute is
vague. It has decreed that as long as a penal law can answer the basic
query "What is the violation?," it is constitutional. "Anything beyond this,
the ‘hows’ and the ‘whys,’ are evidentiary matters which the law cannot
possibly disclose in view of the uniqueness of every case x x x."
Elements of Plunder
[Document title]
The Anti-Plunder Law more than adequately answers the question "What
is the violation?" Indeed, to answer this question, any law student --
using basic knowledge of criminal law -- will refer to the elements of the
crime, which in this case are plainly and certainly spelled out in a
straightforward manner in Sections 2 and 1(d) thereof. Those elements
are:
1. The offender is a public officer acting by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other
persons.
2. The offender amasses, accumulates or acquires ill-gotten
wealth.
3. The aggregate amount or total value of the ill-gotten wealth so
amassed, accumulated or acquired is at least fifty million
pesos (₱50,000,000).
4. Such ill-gotten wealth -- defined as any asset, property,
business enterprise or material possession of any of the aforesaid
persons (the persons within the purview of Section 2, RA 7080) --
has been acquired directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by
any combination or series of the following means or similar
schemes:
(i) through misappropriation, conversion, misuse or
malversation of public funds or raids on the public
treasury;
(ii) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in
connection with any government contract or project or by
91
reason of the office or position of the public officer
concerned;
(iii) by the illegal or fraudulent conveyance or disposition of
assets belonging to the national government or any of its
subdivisions, agencies or instrumentalities or government-
owned or controlled corporations and their subsidiaries;
(iv) by obtaining, receiving or accepting directly or indirectly
any shares of stock, equity or any other form of interest or
participation including the promise of future employment in
any business enterprise or undertaking;
(v) by establishing agricultural, industrial or commercial
monopolies or other combination and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
(vi) by taking undue advantage of official position,
authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the
Republic of the Philippines.7
Petitioner argues that, notwithstanding the above-detailed statement of
the elements of the crime, there is still vagueness because of the absence
of definitions of the terms combination, series and pattern in the text of
the law.
Citing People v. Nazario,8 petitioner adds that "a statute or act may be
said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as
to its application."
[Document title]
I say, however, that in that very case cited by petitioner, the Court
cautioned that "the act (or law) must be utterly vague on its face." When
it can be "clarified either by a saving clause or by construction," the law
cannot be decreed as invalid. In other words, the absence of statutory
definitions of words used in a statute will not render the law "void for
vagueness," if the meanings of such words can be determined through
the judicial function of construction.9
Solution: Simple
Statutory Construction
Indeed, simple statutory construction, not a declaration of
unconstitutionality, is the key to the allegedly vague words of the Anti-
Plunder Law. And the most basic rule in statutory construction is to
ascertain the meaning of a term from the legislative proceedings. Verily,
in the judicial review of a law’s meaning, the legislative intent is
paramount.10
Pervading the deliberations of the Bicameral Conference Committee on
Justice held on May 7, 1991 was the common understanding
of combination as a joining or combining of at least two dissimilar things
or acts, and series as a repetition or recurrence of the same thing at least
twice.11 As a matter of fact, the same understanding of those terms also
prevailed during the Senate deliberations on Senate Bill No. 733
(Plunder) earlier held on June 6, 1989. 12 The Records of those
deliberations speak for themselves.
It is true that during the deliberations in the Senate, the late Senator
Neptali A. Gonzales initially raised concerns over the alleged vagueness
in the use of the terms combination and series. I respectfully submit,
however, that the reliance13 of petitioner on such concerns is misplaced.
That portion of the interpellations, evincing the late senator’s
reservations on the matter, had taken place during the session of June 5,
1989.14 And the clarificatory remarks of Senate President Jovito R.
Salonga and Senators Wigberto Tañada, Alberto Romulo and Ernesto
92
Maceda, which threw light on the matters in doubt, happened the
following day, June 6, 1989. 15 In brief, the misgivings voiced by Senator
Gonzales as to the use of the two terms were adequately addressed,
answered and disposed of the following day.
Thus, Senate Bill No. 733, defining and penalizing plunder, was passed
and approved on third reading on July 25, 1989, with 19 affirmative
votes (including those of Senators Gonzales, Tañada, Maceda, and
petitioner himself) sans any negative vote or abstention. Indeed, some of
the sharpest legal minds in the country voted to approve the bill, even
though it was bereft of statutory definitions. Likewise, it would certainly
be inconceivable for Senator Gonzales to have voted for the approval of
the Bill had he believed that it was vague to the point of constitutional
infirmity; or at the very least, if he believed that his earlier reservations
or apprehensions were not fully satisfied.
At this juncture, may I call attention to the Record of the Joint
Conference Meeting held on May 7, 1991. 16 The portion thereof relied
upon by petitioner17 features the exchanges involving Representatives
Garcia and Isidro and Senator Tañada on the meanings of the
terms combination and series. The quoted part of the Record would
suggest that, somehow, particularly towards the end of the meeting, the
discussion among the legislators seemed to have degenerated into a
clutch of unfinished sentences and unintelligible phrases. Still, I believe
that the deliberations did not actually sound the way they were
subsequently transcribed or as they now appear on the Record. Even
more reluctant am I to agree with petitioner that the apparent tenor of
the deliberations evinced "a dearth of focus to render precise the
definition of the terms," or that the Committee members themselves were
not clear on the meanings of the terms in question.
Most of us in the legal profession are all too familiar with the vagaries of
stenographic note-taking, especially in courtrooms and legislative halls.
Too often, lawyers, parties-litigants and even judges find themselves at
the mercy of stenographers who are unfamiliar with certain legal terms;
or who cannot hear well enough or take notes fast enough; or who simply
[Document title]
get confused, particularly when two or more persons happen to be
speaking at the same time. Often, transcripts of stenographic notes have
portrayed lawyers, witnesses, legislators and judges as blithering idiots,
spouting utterly nonsensical jargon and plain inanities in the course of a
proceeding. The Record in question is no exception.
Rather than believe that the distinguished lawmakers went about their
business uttering senseless half-sentences to one another, I think that
these learned and intelligent legislators of both chambers knew what
they were talking about, spoke their minds, and understood each other
well, for the Record itself does not indicate the contrary. Neither does it
show any details or minutiae that would indicate that they abandoned
their earlier common understanding of the terms combination and series.
Specific Number or
Percentage Not Always Necessary
Regrettably, I shall also have to take issue with petitioner’s disquisition
to the effect that "when penal laws enacted by Congress make reference
to a term or concept requiring a quantitative definition, these laws are so
crafted as to specifically state the exact number or percentage necessary
to constitute the elements of a crime," followed by a recitation of
the minimum number of malefactors mentioned in the statutory
definitions of band, conspiracy, illegal recruitment by syndicate, large-
scale illegal recruitment, organized/syndicated crime
group, and swindling by a syndicate. Thus, he insinuates that, because
RA 7080 has failed to specify precisely the minimum number of
malefactors needed for an offense to be properly classified as plunder,
the law is vague or has somehow failed to meet the standard for penal
laws.
The aforequoted discourse would appear to be incongruous, if not totally
misleading. As pointed out during the Oral Argument on September 18,
2001, the crime of plunder can be committed by a public officer acting
alone. Section 2 of RA 7080 reads as follows: "Definition of the Crime of
93
Plunder; Penalties. – Any public officer who, by himself or in connivance
with x x x." Thus, the insistence on a mathematical specification or
precise quantification is essentially without basis. And lest anyone
believe that the Anti-Plunder Law is unusual in this respect, let me just
recall that the RICO law, to which petitioner made repeated references in
his Amended Petition, can likewise be violated by a single individual. 18
Not Oppressive
or Arbitrary
Neither can it be said that RA 7080 is oppressive or arbitrary for
imposing a more severe penalty on a combination or series of the offenses
enumerated in Section 1(d) of the law, than would otherwise be imposed
if the said offenses were taken separately. As Mr. Justice Mendoza lucidly
pointed out in his interpellation during the Oral Argument, the Anti-
Plunder Law is merely employing a familiar technique or feature of penal
statutes, when it puts together what would otherwise be various
combinations of traditional offenses already proscribed by existing laws
and attaching thereto higher or more severe penalties than those
prescribed for the same offenses taken separately.
Here, Mr. Justice Mendoza is referring to special complex crimes like
rape with homicide or robbery with homicide. During the Oral Argument,
he asked whether petitioner’s counsel was in fact suggesting that such
special complex crimes -- a very important part of the Revised Penal
Code and well-entrenched in our penal system -- were violative of due
process and the constitutional guarantees against cruel and unusual
punishment and should also be struck down. It goes without saying that
the legislature is well within its powers to provide higher penalties in
view of the grave evils sought to be prevented by RA 7080.
Innocent Acts Not
Penalized by RA 7080
[Document title]
Petitioner insists that innocent acts are in effect criminalized by RA
7080, because it allegedly penalizes combinations or series of acts
coming within the purview of the means or similar schemes enumerated
under items 4 and 5 of Section 1(d) of the law, which reads as follows:
"4. By obtaining, receiving or accepting directly or indirectly any shares
of stock, equity or any other forms of interest or participation including
the promise of future employment in any business enterprise or
undertaking;
"5. By establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests"
That such contention "deserves scant attention" is an understatement of
the extreme sort. The claim of "innocent acts" is possible only because
items 4 and 5 have been taken completely out of context and read in
isolation instead of in relation to the other provisions of the same law,
particularly Section 2. The above-enumerated acts, means or similar
schemes must be understood as having reference to or connection with
the acquisition of ill-gotten wealth by a public officer, by himself or in
connivance with others. Those acts are therefore not innocent acts.
Neither are those prohibitions new or unfamiliar. The proscribed acts
under item 4, for instance, may to some extent be traced back to some of
the prohibitions in RA 3019 (the Anti-Graft Law). Section 3, the pertinent
part of such law, reads as follows:
"SEC. 3. Corrupt practices of public officers. - In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
"(a) x x x x x x x x x
94
"(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in connection
with any contract or transaction between the Government and any other
party wherein the public officer in his official capacity has to intervene
under the law.
"(c) Directly or indirectly requesting or receiving any gift, present or other
pecuniary or material benefit, for himself or for another, from any person
for whom the public officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to
Section Thirteen of this Act.
"(d) Accepting or having any member of his family accept employment in
a private enterprise which has pending official business with him during
the pendency thereof or within one year after its termination.
x x x           x x x          x x x
"(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
x x x x x x x x x."
On the other hand, the prohibited acts under item 5 have antecedents in
the Revised Penal Code’s interdiction against monopolies and
combinations in restraint of trade. Clearly, the acts dealt with in Items 4
and 5 of Section 1(d) are in no wise the innocent or innocuous deeds that
petitioner would have us mistake them for.
RA 7080 Not Suffering from Overbreadth
[Document title]
In connection with the foregoing discussion, petitioner also charges that
RA 7080 suffers from "overbreadth." I believe petitioner misconstrues the
concept. In the very recent case People v. Dela Piedra, 19 this Court held:
"A statute may be said to be overbroad where it operates to inhibit the
exercise of individual freedoms affirmatively guaranteed by the
Constitution, such as the freedom of speech or religion. A generally worded
statute, when construed to punish conduct which cannot be
constitutionally punished, is unconstitutionally vague to the extent that
it fails to give adequate warning of the boundary between the
constitutionally permissible and the constitutionally impermissible
applications of the statute.
"In Blo Umpar Adiong vs. Commission on Elections, for instance, we
struck down as void for overbreadth provisions prohibiting the posting of
election propaganda in any place – including private vehicles – other than
in the common poster areas sanctioned by the COMELEC. We held that
the challenged provisions not only deprived the owner of the vehicle the
use of his property but also deprived the citizen of his right to free speech
and information. The prohibition in Adiong, therefore, was so broad that
it covered even constitutionally guaranteed rights and, hence, void for
overbreadth. In the present case, however, appellant did not even specify
what constitutionally protected freedoms are embraced by the definition
of ‘recruitment and placement’ that would render the same
constitutionally overbroad." (Italics supplied)
Similarly, in the instant case, petitioner has not identified which of his
constitutionally protected freedoms, if any, are allegedly being violated by
the Anti-Plunder Law. As Mr. Justice Mendoza pointed out to petitioner’s
counsel during the Oral Argument, specious and even frivolous is the
contention that RA 7080 infringes on the constitutional right of petitioner
by depriving him of his liberty pending trial and by 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
constitutional rights.
95
"Pattern of Overt or Criminal Acts"
Petitioner, in line with his "void for vagueness" attack on RA 7080, faults
the statute for failing to provide a 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 is crucial since,
according to him, such pattern is an essential element of the crime of
plunder.
A plain reading of the law easily debunks this contention. First, contrary
to petitioner’s suggestions, such pattern of overt or criminal acts and so
on is not and should not be deemed an essential or substantive element
of the crime of plunder. It is possible to give full force and effect to RA
7080 without applying Section 4 -- an accused can be charged and
convicted under the Anti-Plunder Law without resorting to that specific
provision. After all, the heading and the text of Section 4, which I quote
below, leave no room for doubt that it is not substantive in nature:
"SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy." (Boldface
supplied)
As Mr. Chief Justice Davide very astutely pointed out during the Oral
Argument, Section 2 in relation to Section 1(d) deals with how the crime
of plunder is committed. Hence, these two sections constitute the
substantive elements, whereas Section 4 deals with how the crime
is proved and is therefore not substantive, but merely procedural. It may
be disregarded or discarded if found defective or deficient, without
impairing the rest of the statute.
[Document title]
Actually, the root of this problem may be traced to an observation made
by Rep. Pablo Garcia, chair of the House Committee on Justice, that RA
7080 had been patterned after the RICO Law.20 Petitioner apparently
seized on this statement and on the assertions in H.J. Inc. v.
Northwestern Bell21 and other cases that a pattern of racketeering is a
"key requirement" in the RICO Law and a "necessary element" of
violations thereof. He then used these as the springboard for his
vagueness attacks on RA 7080. However, his reliance on the RICO law is
essentially misplaced. Respondent Sandiganbayan correctly held that the
said legislation was essentially different from our Anti-Plunder Law, as it
pointed out in its Resolution of July 9, 2001, which I quote:
"Accused Joseph E. Estrada claims that the Anti-Plunder Law does not
define ‘pattern of overt or criminal acts’ indicative of the overall scheme
or conspiracy, thereby giving prosecutors and judges unlimited discretion
to determine the nature and extent of evidence that would show
‘pattern.’" (Motion to Quash dated June 7, 2001, p. 13) The Court
disagrees with this contention.
"x x x. According to the sponsors of the Anti-Plunder Law in Congress,
the said law is similar to the U.S. RICO (Deliberations of the House of
Representatives Committee on Revision of Law and Justice, May 24,
1990). However, the similarities extend only insofar as both laws penalize
with severe penalties the commission by a single accused or multiple
accused of a pattern of overt or criminal acts as one continuing crime.
However, the legislative policies and objectives as well as the nature
of the crimes penalized respectively by the RICO and the Anti-Plunder
Law are different." (Boldface and underscoring supplied)
Indeed, a careful reading of RICO vis-à-vis RA 7080 can lead to no other
conclusion than that the crimes being penalized are completely different
in nature and character, and that the legislative objectives and policies
involved are quite dissimilar.
96
In the case of RICO, legislative concern focused on the threat of
continued racketeering activity, and that was why pattern was imbued
with such importance. "Congress was concerned in RICO with long-term
criminal conduct,"22 as the following quote indicates:
"RICO’s legislative history reveals Congress’ intent that to prove a pattern
of racketeering activity a plaintiff or prosecutor must show that the
racketeering predicates are related, and that they amount to or pose a
threat of continued criminal activity.23
x x x           x x x          x x x
"What a plaintiff or prosecutor must prove is continuity of racketeering
activity, or its threat, simpliciter. This may be done in a variety of ways,
thus making it difficult to formulate in the abstract any general test for
continuity. We can, however, begin to delineate the requirement.
"‘Continuity’ is both a closed and open-ended concept, referring either to
a closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition. x x x. It is, in
either case, centrally a temporal concept – and particularly so in the
RICO context, where what must be continuous, RICO’s predicate acts or
offenses, and the relationship these predicates must bear one to another,
are distinct requirements. A party alleging a RICO violation may
demonstrate continuity over a closed period by proving a series of related
predicates extending over a substantial period of time. Predicate acts
extending over a few weeks or months and threatening no future criminal
conduct do not satisfy this requirement. Congress was concerned in
RICO with long-term criminal conduct. Often a RICO action will be
brought before continuity can be established in this way. In such cases,
liability depends on whether the threat of continuity is
demonstrated."24 (italics and underscoring supplied)
However, in RA 7080, precisely because of the sheer magnitude of the
crimes in question and their extremely deleterious effects on society, the
[Document title]
legislative sentiment of great urgency – the necessity of immediate
deterrence of such crimes -- was incompatible with the RICO concept of
"pattern" as connoting either continuity over a substantial period of time or
threat of continuity or repetition. The legislative intent25 and policy of RA
7080 centered on imposing a heavy penalty in order to achieve a strong,
if not permanent, deterrent effect -- the sooner the better. The following
Senate deliberations are instructive:
"Senator Paterno. Mr. President, [I’m] not too clear yet on the reason for
trying to define a crime of plunder. Could I get some further clarification?
"Senator Tañada. Yes, Mr. President.
"Because of our experience in the former regime, we feel that there is a
need for Congress to pass the legislation which would cover a crime of
this magnitude. While it is true, we already have the Anti-Graft Law. But
that does not directly deal with plunder. That covers only the corrupt
practices of public officials as well as their spouses and relatives within
the civil degree, and the Anti-Graft law as presently worded would not
adequately or sufficiently address the problems that we experienced
during the past regime.
"Senator Paterno. May I try to give the Gentleman, Mr. President, my
understanding of the bill?
"Senator Tañada. Yes.
"Senator Paterno. I envision that this bill or this kind of plunder would
cover a discovered interconnection of certain acts, particularly, violations
of Anti-Graft and Corrupt Practices Act when, after the different acts are
looked at, a scheme or conspiracy can be detected, such scheme or
conspiracy consummated by the different criminal acts or violations of
Anti-Graft and Corrupt Practices Act, such that the scheme or
conspiracy becomes a sin, as a large scheme to defraud the public or rob
the public treasury. It is parang robo and banda. It is considered as
97
that. And, the bill seeks to define or says that P100 million is that level at
which ay talagang sobra na, dapat nang parusahan ng husto. Would it
be a correct interpretation or assessment of the intent of the bill?
"Senator Tañada. Yes, Mr. President. X x x x x.
"Senator Paterno. Would the Author not agree that this crime of plunder
should be considered a heinous crime, Mr. President?
"Senator Tañada. Yes, Mr. President. That is why, the penalty imposed
under this bill is life imprisonment, and permanent disqualification from
holding public office.
"Senator Paterno. I would really ask, Mr. President, whether the Author
would not consider that this is a heinous crime which, for compelling
reasons, namely to try and dampen the graft and corruption, Congress
should provide the death penalty for the crime of plunder.
"Senator Tañada. I personally would have some problem with that, Mr.
President, because I am against the restoration of death penalty in our
criminal code. I would submit that to this Body.
"Senator Paterno. I respect the ministerial attitude and the respect for
human life of the author, Mr. President, but I just feel that graft and
corruption is such a large problem in our society that, perhaps, it is
necessary for this Congress to express itself that this crime of plunder is
a heinous crime which should be levied the death penalty, Mr.
President."26
Thus, it is clear and unarguable that "pattern," a key requirement or
necessary element of RICO, is in no wise an essential element of RA
7080.
This conclusion is further bolstered by the fact that pattern, in the RICO
law context, is nowhere to be found in the language of RA 7080 or in the
[Document title]
deliberations of Congress. Indeed, the legislators were well aware of the
RICO Act; hence, they could have opted to adopt its concepts, terms and
definitions and installed pattern in the RICO sense as an essential
element of the crime of plunder, if that were their intent. At the very
least, they would not have relegated the term pattern to a procedural
provision such as Section 4.
Second, to answer petitioner’s contention directly, the Anti-Plunder Law
does in fact provide sufficient basis to get at the meaning of the
term pattern as used in Section 4. This meaning is brought out in the
disquisition of Respondent Sandiganbayan in its challenged Resolution,
reproduced hereunder:
"The term ‘pattern’ x x x is sufficiently defined in the Anti-Plunder Law,
specifically through Section 4 x x x, read in relation to Section 1(d) and
Section 2 of the same law. Firstly, under Section 1(d) x x x, a pattern
consists of at least a combination or a series of overt or criminal acts
enumerated in subsections (1) to (6) of Section 1(d). Secondly, pursuant
to Section 2 of the law, the ‘pattern’ of overt or criminal acts is directed
towards a common purpose or goal which is to enable a public officer to
amass, accumulate or acquire ill-gotten wealth; and [t]hirdly, there must
either be an ‘overall unlawful scheme’ or ‘conspiracy’ to achieve said
common goal. As commonly understood, the term ‘overall unlawful
scheme’ indicates ‘a general plan of action or method’ which the principal
accused and public officer and others conniving with him follow to
achieve the aforesaid common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used by multiple
accused vary, the overt or criminal acts must form part of a conspiracy to
attain said common goal.
"Parenthetically, it can be said that the existence of a pattern indicating
an overall scheme or a single conspiracy would serve as the link that will
tie the overt or criminal acts into one continuing crime of plunder. A
conspiracy exists when two or more persons come into an agreement
concerning the commission of a felony and decide to commit it. (Art. 8,
Revised Penal Code). To use an analogy made by U.S. courts in
98
connection with RICO violations, a pattern may be likened to a wheel
with spokes (the overt or criminal acts which may be committed by a
single or multiple accused), meeting at a common center (the acquisition
or accumulation of ill-gotten wealth by a public officer) and with the rim
(the over-all unlawful scheme or conspiracy) of the wheel enclosing the
spokes. In this case, the information charges only one count of [the]
crime of plunder, considering the prosecution’s allegation in the
amended information that the series or combination of overt or criminal
acts charged form part of a conspiracy among all the accused." 27
Judiciary Empowered to Construe and Apply the Law
At all events, let me stress that the power to construe law is essentially
judicial. To declare what the law shall be is a legislative power, but to
declare what the law is or has been is judicial. 28 Statutes enacted by
Congress cannot be expected to spell out with mathematical precision
how the law should be interpreted under any and all given situations.
The application of the law will depend on the facts and circumstances as
adduced by evidence which will then be considered, weighed and
evaluated by the courts. Indeed, it is the constitutionally mandated
function of the courts to interpret, construe and apply the law as would
give flesh and blood to the true meaning of legislative enactments.
Moreover, a statute should be construed in the light of the objective to be
achieved and the evil or mischief to be suppressed and should be given
such construction as will advance the purpose, suppress the mischief or
evil, and secure the benefits intended. 29 A law is not a mere composition,
but an end to be achieved; and its general purpose is a more important
aid to its meaning than any rule that grammar may lay down. 30 A
construction should be rejected if it gives to the language used in a
statute a meaning that does not accomplish the purpose for which the
statute was enacted and that tends to defeat the ends that are sought to
be attained by its enactment.31
[Document title]
As can be gleaned from the legislative deliberations, the Plunder Law was
enacted to curb the "despoliation of the National Treasury by some public
officials who have held the levers of power" and to penalize "this
predatory act which has reached unprecedented heights and has been
developed by its practitioners to a high level of sophistication during the
past dictatorial regime." Viewed broadly, "plunder involves not just plain
thievery but economic depredation which affects not just private parties
or personal interests but the nation as a whole." Invariably, plunder
partakes of the nature of "a crime against national interest which must be
stopped, and if possible, stopped permanently."32
No Patent and Clear Conflict with Constitution
Against the foregoing backdrop, I believe petitioner’s heavy reliance on
the void-for-vagueness concept cannot prevail, considering that such
concept, while mentioned in passing in Nazario and other cases, has yet
to find direct application in our jurisdiction. To this date, the Court has
not declared any penal law unconstitutional on the ground of
ambiguity.33 On the other hand, the constitutionality of certain penal
statutes has been upheld in several cases, notwithstanding allegations of
ambiguity in the provisions of law. In Caram Resources Corp. v.
Contreras34 and People v. Morato,35 the Court upheld the validity of BP 22
(Bouncing Checks Law) and PD 1866 (Illegal Possession of Firearms),
respectively, despite constitutional challenges grounded on alleged
ambiguity.
Similarly, the cases cited by petitioner involving U.S. federal court
decisions relative to the RICO Law did not at all arrive at a finding of
unconstitutionality of the questioned statute. To repeat, reference to
these U.S. cases is utterly misplaced, considering the substantial
differences in the nature, policies and objectives between the RICO Law
and the Anti-Plunder Law. Verily, "the RICO Law does not create a new
type of substantive crime since any acts which are punishable under the
RICO Law also are punishable under existing federal and state
statutes."36 Moreover, the main purpose of the RICO Law is "to seek the
eradication of organized crime in the United States." 37
99
On the other hand, the Plunder Law creates an entirely new crime that
may consist of both (a) criminal acts already punished by the Revised
Penal Code or special laws and (b) acts that may not be punishable by
previously existing laws. Furthermore, unlike in the RICO Law, the
motivation behind the enactment of the Anti-Plunder Law is "the need to
for a penal law that can adequately cope with the nature and magnitude
of the corruption of the previous regime"38 in accordance with the
constitutional duty of the State "to take positive and effective measures
against graft and corruption." 39
In sum, the law must be proven to be clearly and unequivocally
repugnant to the Constitution before this Court may declare its
unconstitutionality. To strike down the law, there must be a clear
showing that what the fundamental law prohibits, the statute allows to
be done.40 To justify the nullification of the law, there must be a clear,
unequivocal breach of the Constitution; not a doubtful, argumentative
implication.41 Of some terms in the law which are easily clarified by
judicial construction, petitioner has, at best, managed merely to point
out alleged ambiguities. Far from establishing, by clear and
unmistakable terms, any patent and glaring conflict with the
Constitution, the constitutional challenge to the Anti-Plunder law must
fail. For just as the accused is entitled to the presumption of innocence in
the absence of proof beyond reasonable doubt, so must a law be accorded
the presumption of constitutionality without the same requisite quantum of
proof.
Second Issue:
Quantum of Evidence Not Lowered by RA 7080
I will now tackle petitioner’s impassioned asseverations that the Anti-
Plunder Law violates the due process clause and the constitutional
presumption of innocence.
[Document title]
Section 4 of RA 7080 provides that, for purposes of establishing the
crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. This is
because it would be sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy.
Hence, petitioner now concludes that the Anti-Plunder Law "eliminates
proof of each and every component criminal act of plunder by the
accused and limits itself to establishing just the pattern of overt or
criminal acts indicative of unlawful scheme or conspiracy." He thus
claims that the statute penalizes the accused on the basis of a proven
scheme or conspiracy to commit plunder, without the necessity of
establishing beyond reasonable doubt each and every criminal act done
by the accused. From these premises, he precipitately, albeit
inaccurately, concludes that RA 7080 has ipso facto lowered the
quantum of evidence required to secure a conviction under the
challenged law. This is clearly erroneous.
First, petitioner’s allegation as to the meaning and implications of Section
4 can hardly be taken seriously, because it runs counter to certain basic
common sense presumptions that apply to the process of interpreting
statutes: that in the absence of evidence to the contrary, it will be
presumed that the legislature intended to enact a valid, sensible and just
law; that the law-making body intended right and justice to prevail; 42 and
that the legislature aimed to impart to its enactments such meaning as
would render them operative and effective and prevent persons from
eluding or defeating them.
Second, petitioner’s allegation is contradicted by the legislative Records
that manifest the real intent behind Section 4, as well as the true
meaning and purpose of the provision therein. This intent is carefully
expressed by the words of Senate President Salonga:
100
"Senate Pres. Salonga. Is that, if there are let’s say 150 crimes all in all,
criminal acts, whether bribery, misappropriation, malversation,
extortion, you need not prove all of those beyond reasonable doubt. If you
can prove by pattern, let’s say 10, but each must be proved beyond
reasonable doubt, you do not have to prove 150 crimes. That’s the
meaning of this."43 (italics supplied)
All told, the above explanation is in consonance with what is often
perceived to be the reality with respect to the crime of plunder -- that
"the actual extent of the crime may not, in its breadth and entirety, be
discovered, by reason of the ‘stealth and secrecy’ in which it is committed
and the involvement of ‘so many persons here and abroad and [the fact
that it] touches so many states and territorial units.’" 44 Hence,
establishing a pattern indicative of the overall unlawful scheme becomes
relevant and important.
Proof of Pattern Beyond Reasonable Doubt
Nevertheless, it should be emphasized that the indicative pattern must be
proven beyond reasonable doubt. To my mind, this means that the
prosecution’s burden of proving the crime of plunder is, in actuality,
much greater than in an ordinary criminal case. The prosecution, in
establishing a pattern of overt or criminal acts, must necessarily show a
combination or series of acts within the purview of Section 1(d) of the
law.
These acts which constitute the combination or series must still be proven
beyond reasonable doubt. On top of that, the prosecution must establish
beyond reasonable doubt such pattern of overt or criminal acts indicative
of the overall scheme or conspiracy, as well as all the other elements
thereof.
Thus, Respondent Sandiganbayan was correct in its ratiocination on that
point:
[Document title]
"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 the elements of plunder, which still remains proof
beyond reasonable doubt. For a clearer understanding of the import of
Section 4 of the Anti-Plunder Law, quoted hereunder are pertinent
portions of the legislative deliberations on the subject:
‘MR. ALBANO. Now, Mr. Speaker, it is also elementary in our criminal
law that what is alleged in the information must be proven beyond
reasonable doubt. If we will prove only one act and find him guilty of the
other acts enumerated in the information, does that not work against the
right of the accused especially so if the amount committed, say, by
falsification is less than P100 million, but the totality of the crime
committed is P100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
‘MR. GARCIA (P). Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to be
proved beyond reasonable doubt is every element of the crime charged.
For example, Mr. Speaker, there is an enumeration of the things taken
by the robber in the information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt, but these will not
prevent the conviction of a crime for which he was charged just because,
say, instead of 3 pairs of diamond earrings the prosecution proved only
two. Now, what is required to be proved beyond reasonable doubt is the
element of the offense.
‘MR. ALBANO. I am aware of that, Mr. Speaker, but considering that in
the crime of plunder the totality of the amount is very important, I feel
that such a series of overt (or) criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to accumulate only ₱50,000
and in the crime of extortion, he was only able to accumulate P1 million.
Now, when we add the totality of the other acts as required under this
bill through the interpretation on the rule of evidence, it is just one single
act, so how can we now convict him?
101
‘MR. GARCIA (P). With due respect, Mr. Speaker, for purposes of proving
an essential element of the crime, there is a need to prove that element
beyond reasonable doubt. For example, one essential element of the
crime is that the amount involved is P100 million. Now, in a series of
defalcations and other acts of corruption and in the enumeration the
total amount would be P110 or P120 million, but there are certain acts
that could not be proved, so, we will sum up the amounts involved in
these transactions which were proved. Now, if the amount involved in
these transactions, proved beyond reasonable doubt, is P100 million,
then there is a crime of plunder.’ (Deliberations of House of
Representatives on RA 7080, dated October 9, 1990).’
x x x           x x x          x x x
"According to the Explanatory Note of Senate Bill No. 733, the crime of
plunder, which is a ‘term chosen from other equally apt terminologies
like kleptocracy and economic treason, punishes the use of high office for
personal enrichment, committed through a series [or combination] of
acts done not in the public eye but in stealth or secrecy over a period of
time, that may involve so many persons, here and abroad, and which
touch so many states and territorial units.’ For this reason, it would be
unreasonable to require the prosecution to prove all the overt and
criminal acts committed by the accused as part of an ‘over-all unlawful
scheme or conspiracy’ to amass ill-gotten wealth as long as all the
elements of the crime of plunder have been proven beyond reasonable
doubt, such as, the combination or series of overt or criminal acts
committed by a public officer alone or in connivance with other persons
to accumulate ill-gotten wealth in the amount of at least Fifty Million
Pesos.
"The statutory language does not evince an intent to do away with the
constitutional presumption of guilt nor to lower the quantum of proof
needed to establish each and every element or ingredient of the crime of
plunder."45
[Document title]
In connection with the foregoing, I emphasize that there is no basis for
petitioner’s concern that the conspiracy to defraud, which is not
punishable under the Revised Penal Code, may have been criminalized
under RA 7080. The Anti-Plunder Law treats conspiracy as merely a
mode of incurring criminal liability, but does not criminalize or penalize
it per se.
In sum, it is clear that petitioner has misunderstood the import of
Section 4. Apropos the foregoing, I maintain that, between an
interpretation that produces questionable or absurd results and one that
gives life to the law, the choice for this Court is too obvious to require
much elucidation or debate.
Even granting arguendo that Section 4 of the Anti-Plunder law suffers
from some constitutional infirmity, the statute may nonetheless survive
the challenge of constitutionality in its entirety. Considering that this
provision pertains only to a rule on evidence or to a procedural matter
that does not bear upon or form any part of the elements of the crime of
plunder, the Court may declare the same unconstitutional and strike it
off the statute without necessarily affecting the essence of the legislative
enactment. For even without the assailed provision, the law can still
stand as a valid penal statute inasmuch as the elements of the crime, as
well as the penalties therein, may still be clearly identified or sufficiently
derived from the remaining valid portions of the law. This finds greater
significance when one considers that Section 7 of the law provides for a
separability clause declaring the validity, the independence and the
applicability of the other remaining provisions, should any other
provision of the law be held invalid or unconstitutional.
Third Issue:
The Constitutional Power of Congress to Enact Mala Prohibita Laws
Petitioner maintains that RA 7080 "eliminated the element of mens
rea from crimes which are mala in se and converted these crimes which
102
are components of plunder into mala prohibita, thereby rendering it
easier to prove" since, allegedly, "the prosecution need not prove criminal
intent."
This asseveration is anchored upon the postulate (a very erroneous one,
as already discussed above) that the Anti-Plunder Law exempts the
prosecution from proving beyond reasonable doubt the component
acts constituting plunder, including the element of criminal intent. It
thus concludes that RA 7080 violates the due process and the equal
protection clauses of the Constitution.
While I simply cannot agree that the Anti-Plunder Law eliminated mens
rea from the component crimes of plunder, my bottom-line position still
is: regardless of whether plunder is classified as mala prohibita or in
se, it is the prerogative of the legislature -- which is undeniably vested
with the authority -- to determine whether certain acts are criminal
irrespective of the actual intent of the perpetrator.
The Power of the Legislature to Penalize Certain Acts
Jurisprudence dating as far back as United States v. Siy Cong
Bieng46 has consistently recognized and upheld "the power of the
legislature, on grounds of public policy and compelled by necessity, ‘the
great master of things,’ to forbid in a limited class of cases the doing of
certain acts, and to make their commission criminal without regard to
the intent of the doer." Even earlier, in United States v. Go
Chico,47 Justice Moreland wrote that the legislature may enact criminal
laws that penalize certain acts, like the "discharge of a loaded gun,"
without regard for the criminal intent of the wrongdoer. In his words:
"In the opinion of this Court it is not necessary that the appellant should
have acted with criminal intent. In many crimes, made such by statutory
enactment, the intention of the person who commits the crime is entirely
immaterial. This is necessarily so. If it were not, the statute as a
deterrent influence would be substantially worthless. It would be
[Document title]
impossible of execution. In many cases the act complained of is itself
that which produces the pernicious effect which the statute seeks to
avoid. In those cases the pernicious effect is produced with precisely the
same force and result whether the intention of the person performing the
act is good or bad. The case at bar is a perfect illustration of this. The
display of a flag or emblem used, particularly within a recent period, by
the enemies of the Government tends to incite resistance to
governmental functions and insurrection against governmental authority
just as effectively if made in the best of good faith as if made with the
most corrupt intent. The display itself, without the intervention of any
other factor, is the evil. It is quite different from that large class of
crimes, made such by the common law or by statute, in which the
injurious effect upon the public depends upon the corrupt intention of
the person perpetrating the act. If A discharges a loaded gun and kills B,
the interest which society has in the act depends, not upon B’s death,
but upon the intention with which A consummated the act. If the gun
were discharged intentionally, with the purpose of accomplishing the
death of B, then society has been injured and its security violated; but if
the gun was discharged accidentally on the part of A, the society, strictly
speaking, has no concern in the matter, even though the death of B
results. The reason for this is that A does not become a danger to society
and its institutions until he becomes a person with a corrupt mind. The
mere discharge of the gun and the death of B do not of themselves make
him so. With those two facts must go the corrupt intent to kill. In the
case at bar, however, the evil to society and to the Government does not
depend upon the state of mind of the one who displays the banner, but
upon the effect which that display has upon the public mind. In the one
case the public is affected by the intention of the actor; in the other by
the act itself."
Without being facetious, may I say that, unlike the act of discharging a
gun, the acts mentioned in Section 1(d) -- bribery, conversion, fraudulent
conveyance, unjust enrichment and the like -- cannot be committed sans
criminal intent. And thus, I finally arrive at a point of agreement with
petitioner: that the acts enumerated in Section 1(d) are by their
nature mala in se, and most of them are in fact defined and penalized as
103
such by the Revised Penal Code. Having said that, I join the view that
when we speak of plunder, we are referring essentially to two or more
instances of mala in se constituting one malum prohibitum. Thus, there
should be no difficulty if each of the predicate acts be proven beyond
reasonable doubt as mala in se, even if the defense of lack of intent be
taken away as the solicitor general has suggested.
In brief, the matter of classification is not really significant, contrary to
what petitioner would have us believe. The key, obviously, is whether the
same burden of proof -- proof beyond reasonable doubt -- would apply.
Furthermore, I also concur in the opinion of the solicitor general: if it is
conceded that the legislature possesses the requisite power and authority
to declare, by legal fiat, that acts not inherently criminal in nature are
punishable as offenses under special laws, then with more reason can it
punish as offenses under special laws those acts that are already
inherently criminal. "This is so because the greater (power to punish not
inherently criminal acts) includes the lesser (power to punish inherently
criminal acts). In eo plus sit, semper inest et minus."48
Epilogue
"The constitutionality of laws is presumed. To justify nullification of a
law, there must be a clear and unequivocal breach of the Constitution,
not a doubtful or argumentative implication; a law shall not be declared
invalid unless the conflict with the Constitution is clear beyond a
reasonable doubt. ‘The presumption is always in favor of constitutionality
x x x. To doubt is to sustain.’ x x x."49
A law should not be overturned on the basis of speculation or conjecture
that it is unconstitutionally vague. Everyone is duty-bound to adopt a
reasonable interpretation that will uphold a statute, carry out its purpose
and render harmonious all its parts. Indeed, the constitutionality of a
statute must be sustained if, as in this case, a ground therefor can
possibly be found. For the unbending teaching is that a law cannot be
[Document title]

declared invalid, unless the conflict with the Constitution is shown to be to love. In short, the Court has rendered its judgment, and the heavens
clearly beyond reasonable doubt. have not fallen. Quite the contrary, petitioner is now accorded
the opportunity to prove his clear conscience and inculpability.
To lend color and vividness to the otherwise boring legalese that has
been used to dissect RA 7080, the parties to this case laced their WHEREFORE, I vote to DISMISS the Petition and to uphold the
arguments with interesting little stories. Thus, petitioner opened his Oral constitutionality of RA 7080.
Argument with an admittedly apocryphal account of a befuddled student
of law who could not make heads or tails of the meanings of series,
combination and pattern.

On the other hand, the solicitor general compares petitioner with Hans
Christian Andersen’s fabled tailors who tried to fool the emperor into
walking around naked by making him believe that anyone who did not
see the invisible garment, which they had supposedly sewn for him, was
"too stupid and incompetent to appreciate its quality." This is no doubt a
parody of the alleged vagueness of RA 7080, which is purportedly
"invisible only to anyone who is too dull or dense to appreciate its
quality."50

I do not begrudge petitioner (or his lawyers) for exhausting every known
and knowable legal tactic to exculpate himself from the clutches of the
law. Neither do I blame the solicitor general, as the Republic’s counsel,
for belittling the attempt of petitioner to shortcut his difficult legal
dilemmas. However, this Court has a pressing legal duty to discharge: to
render justice though the heavens may fall.

By the Court’s Decision, petitioner is now given the occasion to face

squarely and on the merits the plunder charges hurled at him by the
Ombudsman. He may now use this opportunity to show the courts and
the Filipino people that he is indeed innocent of the heinous crime of
plunder – to do so, not by resorting to mere legalisms, but by showing
the sheer falsity of the wrongdoings attributed to him.

I think that, given his repeated claims of innocence, petitioner owes

that opportunity to himself, his family, and the teeming masses he claims

104
[Document title]
G.R. No. 190889               January 10, 2011
ELENITA C. FAJARDO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking the reversal of the February 10, 2009 Decision 1 of the
Court of Appeals (CA), which affirmed with modification the August 29,
2006 decision2 of the Regional Trial Court (RTC), Branch 5, Kalibo,
Aklan, finding petitioner guilty of violating Presidential Decree (P.D.) No.
1866, as amended.X
The facts:
Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged
with violation of P.D. No. 1866, as amended, before the RTC, Branch 5,
Kalibo, Aklan, committed as follows:
That on or about the 28th day of August, 2002, in the morning, in
Barangay Andagao, Municipality of Kalibo, Province of Aklan, Republic of
the Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping
one another, without authority of law, permit or license, did then and
there, knowingly, willfully, unlawfully and feloniously have in their
possession, custody and control two (2) receivers of caliber .45 pistol,
[M]odel [No.] M1911A1 US with SN 763025 and Model [No.] M1911A1 US
with defaced serial number, two (2) pieces short magazine of M16
Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber
and fourteen (14) pieces live caliber .45 ammunition, which items were
confiscated and recovered from their possession during a search
conducted by members of the Provincial Intelligence Special Operation
105
Group, Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search
Warrant No. 01 (9) 03 issued by OIC Executive Judge Dean Telan of the
Regional Trial Court of Aklan.3X
When arraigned on March 25, 2004, both pleaded not guilty to the
offense charged.4 During pre-trial, they agreed to the following
stipulation of facts:X
1. The search warrant subject of this case exists;
2. Accused Elenita Fajardo is the same person subject of the search
warrant in this case who is a resident of Sampaguita Road, Park Homes,
Andagao, Kalibo, Aklan;
3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the
evening of August 27, 2002 but does not live therein;
4. Both accused were not duly licensed firearm holders;
5. The search warrant was served in the house of accused Elenita
Fajardo in the morning of August 28, 2002; and
6. The accused Elenita Fajardo and Valerio were not arrested
immediately upon the arrival of the military personnel despite the fact
that the latter allegedly saw them in possession of a firearm in the
evening of August 27, 2002.5X
As culled from the similar factual findings of the RTC and the CA, 6 these
are the chain of events that led to the filing of the information:X
In the evening of August 27, 2002, members of the Provincial Intelligence
Special Operations Group (PISOG) were instructed by Provincial Director
Police Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond
to the complaint of concerned citizens residing on Ilang-Ilang and
Sampaguita Roads, Park Homes III Subdivision, Barangay Andagao,
Kalibo, Aklan, that armed men drinking liquor at the residence of
petitioner were indiscriminately firing guns.
[Document title]
Along with the members of the Aklan Police Provincial Office, the
elements of the PISOG proceeded to the area. Upon arrival thereat, they
noticed that several persons scampered and ran in different directions.
The responding team saw Valerio holding two .45 caliber pistols. He fired
shots at the policemen before entering the house of petitioner.
Petitioner was seen tucking a .45 caliber handgun between her waist and
the waistband of her shorts, after which, she entered the house and
locked the main door.
To prevent any violent commotion, the policemen desisted from entering
petitioner’s house but, in order to deter Valerio from evading
apprehension, they cordoned the perimeter of the house as they waited
for further instructions from P/Supt. Mendoza. A few minutes later,
petitioner went out of the house and negotiated for the pull-out of the
police troops. No agreement materialized.
At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police
Officer 2 Clemencio Nava (SPO2 Nava), who was posted at the back
portion of the house, saw Valerio emerge twice on top of the house and
throw something. The discarded objects landed near the wall of
petitioner’s house and inside the compound of a neighboring residence.
SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T. Vega
(Vega), radio announcer/reporter of RMN DYKR, as witness, recovered
the discarded objects, which turned out to be two (2) receivers of .45
caliber pistol, model no. M1911A1 US, with serial number (SN) 763025,
and model no. M1911A1 US, with a defaced serial number. The
recovered items were then surrendered to SPO1 Nathaniel A. Tan (SPO1
Tan), Group Investigator, who utilized them in applying for and obtaining
a search warrant.
The warrant was served on petitioner at 9:30 a.m. Together with a
barangay captain, barangay kagawad, and members of the media, as
witnesses, the police team proceeded to search petitioner’s house. The
team found and was able to confiscate the following:
106
1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;
2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.
Since petitioner and Valerio failed to present any documents showing
their authority to possess the confiscated firearms and the two recovered
receivers, a criminal information for violation of P.D. No. 1866, as
amended by Republic Act (R.A.) No. 8294, was filed against them.
For their exoneration, petitioner and Valerio argued that the issuance of
the search warrant was defective because the allegation contained in the
application filed and signed by SPO1 Tan was not based on his personal
knowledge. They quoted this pertinent portion of the application:
That this application was founded on confidential information received
by the Provincial Director, Police Supt. Edgardo Mendoza. 7X
They further asserted that the execution of the search warrant was
infirm since petitioner, who was inside the house at the time of the
search, was not asked to accompany the policemen as they explored the
place, but was instead ordered to remain in the living room (sala).
Petitioner disowned the confiscated items. She refused to sign the
inventory/receipt prepared by the raiding team, because the items
allegedly belonged to her brother, Benito Fajardo, a staff sergeant of the
Philippine Army.
Petitioner denied that she had a .45 caliber pistol tucked in her
waistband when the raiding team arrived. She averred that such
situation was implausible because she was wearing garterized shorts and
a spaghetti-strapped hanging blouse.8X
Ruling of the RTC
[Document title]
The RTC rejected the defenses advanced by accused, holding that the
same were already denied in the Orders dated December 31, 2002 and
April 20, 2005, respectively denying the Motion to Quash Search Warrant
and Demurrer to Evidence. The said Orders were not appealed and have
thus attained finality. The RTC also ruled that petitioner and Valerio
were estopped from assailing the legality of their arrest since they
participated in the trial by presenting evidence for their defense.
Likewise, by applying for bail, they have effectively waived such
irregularities and defects.
In finding the accused liable for illegal possession of firearms, the RTC
explained:
Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier,
having served with the Philippine Army prior to his separation from his
service for going on absence without leave (AWOL). With his military
background, it is safe to conclude that Zaldy Valerio is familiar with and
knowledgeable about different types of firearms and ammunitions. As a
former soldier, undoubtedly, he can assemble and disassemble firearms.
It must not be de-emphasize[d] that the residence of Elenita Fajardo is
definitely not an armory or arsenal which are the usual depositories for
firearms, explosives and ammunition. Granting arguendo that those
firearms and ammunition were left behind by Benito Fajardo, a member
of the Philippine army, the fact remains that it is a government property.
If it is so, the residence of Elenita Fajardo is not the proper place to store
those items. The logical explanation is that those items are stolen
property.
xxxx
The rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is merely
possession which includes not only actual physical possession but also
constructive possession or the subjection of the thing to one’s control
107
and management. This has to be so if the manifest intent of the law is to
be effective. The same evils, the same perils to public security, which the
law penalizes exist whether the unlicensed holder of a prohibited weapon
be its owner or a borrower. To accomplish the object of this law[,] the
proprietary concept of the possession can have no bearing whatsoever.
xxxx
x x x. [I]n order that one may be found guilty of a violation of the decree,
it is sufficient that the accused had no authority or license to possess a
firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.
xxxx
To convict an accused for illegal possession of firearms and explosive
under P.D. 1866, as amended, two (2) essential elements must be
indubitably established, viz.: (a) the existence of the subject firearm
ammunition or explosive which may be proved by the presentation of the
subject firearm or explosive or by the testimony of witnesses who saw
accused in possession of the same, and (b) the negative fact that the
accused has no license or permit to own or possess the firearm,
ammunition or explosive which fact may be established by the testimony
or certification of a representative of the PNP Firearms and Explosives
Unit that the accused has no license or permit to possess the subject
firearm or explosive (Exhibit G).
The judicial admission of the accused that they do not have permit or
license on the two (2) receivers of caliber .45 pistol, model M1911A1 US
with SN 763025 and model M1911A1 of M16 Armalite rifle, thirty-five
(35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces
live caliber .45 ammunition confiscated and recovered from their
possession during the search conducted by members of the PISOG,
Aklan Police Provincial Office by virtue of Search Warrant No. 01 (9) 03
fall under Section 4 of Rule 129 of the Revised Rules of Court.9X
[Document title]
Consequently, petitioner and Valerio were convicted of illegal possession
of firearms and explosives, punishable under paragraph 2, Section 1 of
P.D. No. 1866, as amended by R.A. No. 8294, which provides:
The penalty of prision mayor in its minimum period and a fine of Thirty
thousand pesos (₱30,000.00) shall be imposed if the firearm is classified
as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .
45 and also lesser calibered firearms but considered powerful such as
caliber .357 and caliber .22 center-fire magnum and other firearms with
firing capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.
Both were sentenced to suffer the penalty of imprisonment of six (6)
years and one (1) day to twelve (12) years of prision mayor, and to pay a
fine of ₱30,000.00.
On September 1, 2006, only petitioner filed a Motion for Reconsideration,
which was denied in an Order dated October 25, 2006. Petitioner then
filed a Notice of Appeal with the CA.
Ruling of the CA
The CA concurred with the factual findings of the RTC, but disagreed
with its conclusions of law, and held that the search warrant was void
based on the following observations:
[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did
not have personal knowledge of the fact that appellants had no license to
possess firearms as required by law. For one, he failed to make a
categorical statement on that point during the application. Also, he failed
to attach to the application a certification to that effect from the Firearms
and Explosives Office of the Philippine National Police. x x x, this
certification is the best evidence obtainable to prove that appellant
indeed has no license or permit to possess a firearm. There was also no
explanation given why said certification was not presented, or even
108
deemed no longer necessary, during the application for the warrant.
Such vital evidence was simply ignored.10X
Resultantly, all firearms and explosives seized inside petitioner’s
residence were declared inadmissible in evidence. However, the 2
receivers recovered by the policemen outside the house of petitioner
before the warrant was served were admitted as evidence, pursuant to
the plain view doctrine.
Accordingly, petitioner and Valerio were convicted of illegal possession of
a part of a firearm, punishable under paragraph 1, Section 1 of P.D. No.
1866, as amended. They were sentenced to an indeterminate penalty of
three (3) years, six (6) months, and twenty-one (21) days to five (5) years,
four (4) months, and twenty (20) days of prision correccional, and
ordered to pay a ₱20,000.00 fine.
Petitioner moved for reconsideration,11 but the motion was denied in the
CA Resolution dated December 3, 2009.12 Hence, the present recourse.X
At the onset, it must be emphasized that the information filed against
petitioner and Valerio charged duplicitous offenses contrary to Section
13 of Rule 110 of the Rules of Criminal Procedure, viz.:
Sec. 13. Duplicity of offense. – A complaint or information must charge
but one offense, except only in those cases in which existing laws
prescribe a single punishment for various offenses.
A reading of the information clearly shows that possession of the
enumerated articles confiscated from Valerio and petitioner are
punishable under separate provisions of Section 1, P.D. No. 1866, as
amended by R.A. No. 8294.13 Illegal possession of two (2) pieces of short
magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16
ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45
ammunition is punishable under paragraph 2 of the said section, viz.:X
[Document title]
The penalty of prision mayor in its minimum period and a fine of Thirty
thousand pesos (₱30,000.00) shall be imposed if the firearm is classified
as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, 41, .44, .
45 and also lesser calibered firearms but considered powerful such as
caliber .357 and caliber .22 center-fire magnum and other firearms with
firing capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested. 14X
On the other hand, illegal possession of the two (2) receivers of a .45
caliber pistol, model no. M1911A1 US, with SN 763025, and Model
M1911A1 US, with a defaced serial number, is penalized under
paragraph 1, which states:
Sec. 1. Unlawful manufacture, sale, acquisition, disposition or
possession of firearms or ammunition or instruments used or intended to
be used in the manufacture of firearms or ammunition. – The penalty of
prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (₱15,000.00) shall be imposed upon any person
who shall unlawfully manufacture, deal in, acquire, dispose, or possess
any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition: Provided, That no other crime was committed. 15X
This is the necessary consequence of the amendment introduced by R.A.
No. 8294, which categorized the kinds of firearms proscribed from being
possessed without a license, according to their firing power and caliber.
R.A. No. 8294 likewise mandated different penalties for illegal possession
of firearm according to the above classification, unlike in the old P.D. No.
1866 which set a standard penalty for the illegal possession of any kind
of firearm. Section 1 of the old law reads:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended
109
to be Used in the Manufacture of Firearms of Ammunition. – The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall
be imposed upon any person who shall unlawfully manufacture, deal in,
acquire dispose, or possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition. (Emphasis ours.)
By virtue of such changes, an information for illegal possession of
firearm should now particularly refer to the paragraph of Section 1 under
which the seized firearm is classified, and should there be numerous
guns confiscated, each must be sorted and then grouped according to
the categories stated in Section 1 of R.A. No. 8294, amending P.D. No.
1866. It will no longer suffice to lump all of the seized firearms in one
information, and state Section 1, P.D. No. 1866 as the violated provision,
as in the instant case,16 because different penalties are imposed by the
law, depending on the caliber of the weapon. To do so would result in
duplicitous charges.X
Ordinarily, an information that charges multiple offenses merits a
quashal, but petitioner and Valerio failed to raise this issue during
arraignment. Their failure constitutes a waiver, and they could be
convicted of as many offenses as there were charged in the
information.17 This accords propriety to the diverse convictions handed
down by the courts a quo.X
Further, the charge of illegal possession of firearms and ammunition
under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No.
8294, including the validity of the search warrant that led to their
confiscation, is now beyond the province of our review since, by virtue of
the CA’s Decision, petitioner and Valerio have been effectively acquitted
from the said charges. The present review is consequently only with
regard to the conviction for illegal possession of a part of a firearm.
The Issues
[Document title]
Petitioner insists on an acquittal and avers that the discovery of the two
(2) receivers does not come within the purview of the plain view doctrine.
She argues that no valid intrusion was attendant and that no evidence
was adduced to prove that she was with Valerio when he threw the
receivers. Likewise absent is a positive showing that any of the two
receivers recovered by the policemen matched the .45 caliber pistol
allegedly seen tucked in the waistband of her shorts when the police
elements arrived. Neither is there any proof that petitioner had
knowledge of or consented to the alleged throwing of the receivers.
Our Ruling
We find merit in the petition.
First, we rule on the admissibility of the receivers. We hold that the
receivers were seized in plain view, hence, admissible.
No less than our Constitution recognizes the right of the people to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures. This right is encapsulated in Article
III, Section 2, of the Constitution, which states:
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
Complementing this provision is the exclusionary rule embodied in
Section 3(2) of the same article –
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
110
There are, however, several well-recognized exceptions to the foregoing
rule. Thus, evidence obtained through a warrantless search and seizure
may be admissible under any of the following circumstances: (1) search
incident to a lawful arrest; (2) search of a moving motor vehicle; (3)
search in violation of custom laws; (4) seizure of evidence in plain view;
and (5) when the accused himself waives his right against unreasonable
searches and seizures.18X
Under the plain view doctrine, objects falling in the "plain view" of an
officer, who has a right to be in the position to have that view, are subject
to seizure and may be presented as evidence.19 It applies when the
following requisites concur: (a) the law enforcement officer in search of
the evidence has a prior justification for an intrusion or is in a position
from which he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; and (c) it is immediately apparent
to the officer that the item he observes may be evidence of a crime,
contraband, or otherwise subject to seizure. The law enforcement officer
must lawfully make an initial intrusion or properly be in a position from
which he can particularly view the area. In the course of such lawful
intrusion, he came inadvertently across a piece of evidence incriminating
the accused. The object must be open to eye and hand, and its discovery
inadvertent.20X
Tested against these standards, we find that the seizure of the two
receivers of the .45 caliber pistol outside petitioner’s house falls within
the purview of the plain view doctrine.
First, the presence of SPO2 Nava at the back of the house and of the
other law enforcers around the premises was justified by the fact that
petitioner and Valerio were earlier seen respectively holding .45 caliber
pistols before they ran inside the structure and sought refuge. The
attendant circumstances and the evasive actions of petitioner and Valerio
when the law enforcers arrived engendered a reasonable ground for the
latter to believe that a crime was being committed. There was thus
[Document title]

sufficient probable cause for the policemen to cordon off the house as Q At about 2:00 o’clock in the early morning of August 28, 2002, can you
they waited for daybreak to apply for a search warrant. recall where were you?
Secondly, from where he was situated, SPO2 Nava clearly saw, on two A Yes, sir.
different instances, Valerio emerge on top of the subject dwelling and
Q Where were you?
throw suspicious objects. Lastly, considering the earlier sighting of
Valerio holding a pistol, SPO2 Nava had reasonable ground to believe A I was at the back of the house that is being cordoned by the police.
that the things thrown might be contraband items, or evidence of the
offense they were then suspected of committing. Indeed, when Q While you were at the back of this house, do you recall any unusual
subsequently recovered, they turned out to be two (2) receivers of .45 incident?
caliber pistol. A Yes, sir.
The pertinent portions of SPO2 Nava’s testimony are elucidating: Q Can you tell the Honorable Court what was that incident?
Q When you arrived in that place, you saw policemen? A Yes, sir. A person went out at the top of the house and threw
A Yes, sir. something.

Q What were they doing? Q And did you see the person who threw something out of this house?

A They were cordoning the house. A Yes, sir.

Q You said that you asked your assistant team leader Deluso about that xxxx
incident. What did he tell you? Q Can you tell the Honorable Court who was that person who threw that
A Deluso told me that a person ran inside the house carrying with him a something outside the house?
gun. A It was Zaldy Valerio.
Q And this house you are referring to is the house which you mentioned COURT: (to witness)
is the police officers were surrounding?
Q Before the incident, you know this person Zaldy Valerio?
A Yes, sir.
A Yes, sir.
Q Now, how long did you stay in that place, Mr. Witness?
Q Why do you know him?
A I stayed there when I arrived at past 10:00 o’clock up to 12:00 o’clock
the following day. A Because we were formerly members of the Armed Forces of the
Philippines.

111
[Document title]

xxxx Q Who was that person?

PROS. PERALTA: A Zaldy Valerio again.
Q When you saw something thrown out at the top of the house, did you xxxx
do something if any?
Q Where were you when you saw this Zaldy Valerio thr[o]w something
A I shouted to seek cover. out of the house?
xxxx A I was on the road in front of the house.
Q So, what else did you do if any after you shouted, "take cover?" Q Where was Zaldy Valerio when you saw him thr[o]w something out of
the house?
A I took hold of a flashlight after five minutes and focused the beam of
the flashlight on the place where something was thrown. A He was on top of the house.
Q What did you see if any? xxxx
A I saw there the lower [part] of the receiver of cal. 45. Q Later on, were you able to know what was that something thrown out?
xxxx A Yes, sir.
Q Mr. Witness, at around 4:00 o’clock that early morning of August 28, Q What was that?
2002, do you recall another unusual incident?
A Another lower receiver of a cal. 45.
A Yes, sir.
xxxx
Q And can you tell us what was that incident?
Q And what did he tell you?
A I saw a person throwing something there and the one that was thrown
A It [was] on the wall of another house and it [could] be seen right away.
fell on top of the roof of another house.
xxxx
Q And you saw that person who again threw something from the rooftop
of the house? Q What did you do if any?
A Yes, sir. A We waited for the owner of the house to wake up.
Q Did you recognize him? xxxx
A Yes, sir. Q Who opened the fence for you?

112
[Document title]
A It was a lady who is the owner of the house.
Q When you entered the premises of the house of the lady, what did you
find?
A We saw the lower receiver of this .45 cal. (sic) 21X
The ensuing recovery of the receivers may have been deliberate;
nonetheless, their initial discovery was indubitably inadvertent. It is not
crucial that at initial sighting the seized contraband be identified and
known to be so. The law merely requires that the law enforcer observes
that the seized item may be evidence of a crime, contraband, or
otherwise subject to seizure.
Hence, as correctly declared by the CA, the two receivers were admissible
as evidence. The liability for their possession, however, should fall only
on Valerio and not on petitioner.1avvphil
The foregoing disquisition notwithstanding, we find that petitioner is not
liable for illegal possession of part of a firearm.
In dissecting how and when liability for illegal possession of firearms
attaches, the following disquisitions in People v. De Gracia 22 are
instructive:X
The rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is merely
possession which includes not only actual physical possession but also
constructive possession or the subjection of the thing to one's control
and management. This has to be so if the manifest intent of the law is to
be effective. The same evils, the same perils to public security, which the
law penalizes exist whether the unlicensed holder of a prohibited weapon
be its owner or a borrower. To accomplish the object of this law the
proprietary concept of the possession can have no bearing whatsoever.
But is the mere fact of physical or constructive possession sufficient to
convict a person for unlawful possession of firearms or must there be an
113
intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good faith and
absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit
the crime is not necessary. It is sufficient that the offender has the intent
to perpetrate the act prohibited by the special law. Intent to commit the
crime and intent to perpetrate the act must be distinguished. A person
may not have consciously intended to commit a crime; but he did intend
to commit an act, and that act is, by the very nature of things, the crime
itself. In the first (intent to commit the crime), there must be criminal
intent; in the second (intent to perpetrate the act) it is enough that the
prohibited act is done freely and consciously.
In the present case, a distinction should be made between criminal
intent and intent to possess. While mere possession, without criminal
intent, is sufficient to convict a person for illegal possession of a firearm,
it must still be shown that there was animus possidendi or an intent to
possess on the part of the accused. Such intent to possess is, however,
without regard to any other criminal or felonious intent which the
accused may have harbored in possessing the firearm. Criminal intent
here refers to the intention of the accused to commit an offense with the
use of an unlicensed firearm. This is not important in convicting a
person under Presidential Decree No. 1866. Hence, in order that one may
be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he
intended to possess the same, even if such possession was made in good
faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession
or control of a firearm cannot be considered a violation of a statute
prohibiting the possession of this kind of weapon, such as Presidential
Decree No. 1866. Thus, although there is physical or constructive
[Document title]
possession, for as long as the animus possidendi is absent, there is no
offense committed.23X
Certainly, illegal possession of firearms, or, in this case, part of a firearm,
is committed when the holder thereof:
(1) possesses a firearm or a part thereof
(2) lacks the authority or license to possess the firearm. 24X
We find that petitioner was neither in physical nor constructive
possession of the subject receivers. The testimony of SPO2 Nava clearly
bared that he only saw Valerio on top of the house when the receivers
were thrown. None of the witnesses saw petitioner holding the receivers,
before or during their disposal.
At the very least, petitioner’s possession of the receivers was merely
incidental because Valerio, the one in actual physical possession, was
seen at the rooftop of petitioner’s house. Absent any evidence pointing to
petitioner’s participation, knowledge or consent in Valerio’s actions, she
cannot be held liable for illegal possession of the receivers.
Petitioner’s apparent liability for illegal possession of part of a firearm
can only proceed from the assumption that one of the thrown receivers
matches the gun seen tucked in the waistband of her shorts earlier that
night. Unfortunately, the prosecution failed to convert such assumption
into concrete evidence.
Mere speculations and probabilities cannot substitute for proof required
to establish the guilt of an accused beyond reasonable doubt. The rule is
the same whether the offenses are punishable under the Revised Penal
Code, which are mala in se, or in crimes, which are malum prohibitum by
virtue of special law.25 The quantum of proof required by law was not
adequately met in this case in so far as petitioner is concerned.X
The gun allegedly seen tucked in petitioner’s waistband was not
identified with sufficient particularity; as such, it is impossible to match
114
the same with any of the seized receivers. Moreover, SPO1 Tan
categorically stated that he saw Valerio holding two guns when he and
the rest of the PISOG arrived in petitioner’s house. It is not unlikely then
that the receivers later on discarded were components of the two (2)
pistols seen with Valerio.
These findings also debunk the allegation in the information that
petitioner conspired with Valerio in committing illegal possession of part
of a firearm. There is no evidence indubitably proving that petitioner
participated in the decision to commit the criminal act committed by
Valerio.
Hence, this Court is constrained to acquit petitioner on the ground of
reasonable doubt. The constitutional presumption of innocence in her
favor was not adequately overcome by the evidence adduced by the
prosecution.
The CA correctly convicted Valerio with illegal possession of part of a
firearm.
In illegal possession of a firearm, two (2) things must be shown to exist:
(a) the existence of the subject firearm; and (b) the fact that the accused
who possessed the same does not have the corresponding license for
it.26X
By analogy then, a successful conviction for illegal possession of part of a
firearm must yield these requisites:
(a) the existence of the part of the firearm; and
(b) the accused who possessed the same does not have the license for the
firearm to which the seized part/component corresponds.
In the instant case, the prosecution proved beyond reasonable doubt the
elements of the crime. The subject receivers - one with the markings
"United States Property" and the other bearing Serial No. 763025 - were
[Document title]

duly presented to the court as Exhibits E and E-1, respectively. They

were also identified by SPO2 Nava as the firearm parts he retrieved af ter
Valerio discarded them.27 His testimony was corroborated by DYKR radio
announcer Vega, who witnessed the recovery of the receivers. 28X

Anent the lack of authority, SPO1 Tan testified that, upon verification, it
was ascertained that Valerio is not a duly licensed/registered firearm
holder of any type, kind, or caliber of firearms. 29 To substantiate his
statement, he submitted a certification30 to that effect and identified the
same in court.31 The testimony of SPO1 Tan, or the certification, would
suffice to prove beyond reasonable doubt the second element.32X

WHEREFORE, premises considered, the February 10, 2009 Decision of

the Court of Appeals is hereby REVERSED with respect to petitioner
Elenita Fajardo y Castro, who is hereby ACQUITTED on the ground that
her guilt was not proved beyond reasonable doubt.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

G.R. No. 162540               July 13, 2009

GEMMA T. JACINTO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:

115
[Document title]
Before us is a petition for review on certiorari filed by petitioner Gemma
T. Jacinto seeking the reversal of the Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming
petitioner's conviction of the crime of Qualified Theft, and its
Resolution2 dated March 5, 2004 denying petitioner's motion for
reconsideration.X
Petitioner, along with two other women, namely, Anita Busog de Valencia
y Rivera and Jacqueline Capitle, was charged before the Regional Trial
Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified
Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan
City, Metro Manila, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and mutually helping one
another, being then all employees of MEGA FOAM INTERNATIONAL INC.,
herein represented by JOSEPH DYHENGCO Y CO, and as such had free
access inside the aforesaid establishment, with grave abuse of trust and
confidence reposed upon them with intent to gain and without the
knowledge and consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and deposited in their own
account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the
sum of ₱10,000.00, representing payment made by customer Baby
Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the
latter in the aforesaid stated amount of ₱10,000.00.
CONTRARY TO LAW.3X
The prosecution's evidence, which both the RTC and the CA found to be
more credible, reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649
postdated July 14, 1997 in the amount of ₱10,000.00. The check was
payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and
116
petitioner was then the collector of Mega Foam. Somehow, the check was
deposited in the Land Bank account of Generoso Capitle, the husband of
Jacqueline Capitle; the latter is the sister of petitioner and the former
pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam,
received a phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know if she could
issue checks payable to the account of Mega Foam, instead of issuing the
checks payable to CASH. Said customer had apparently been instructed
by Jacqueline Capitle to make check payments to Mega Foam payable
to CASH. Around that time, Ricablanca also received a phone call from
an employee of Land Bank, Valenzuela Branch, who was looking for
Generoso Capitle. The reason for the call was to inform Capitle that the
subject BDO check deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former
employee/collector of Mega Foam, asking the latter to inform Jacqueline
Capitle about the phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and relay the message
through Valencia, because the Capitles did not have a phone; but they
could be reached through Valencia, a neighbor and former co-employee
of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino,
and instructed Ricablanca to ask Baby Aquino to replace the check with
cash. Valencia also told Ricablanca of a plan to take the cash and divide
it equally into four: for herself, Ricablanca, petitioner Jacinto and
Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's
accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
confirm that the latter indeed handed petitioner a BDO check for
₱10,000.00 sometime in June 1997 as payment for her purchases from
[Document title]
Mega Foam.4 Baby Aquino further testified that, sometime in July 1997,
petitioner also called her on the phone to tell her that the BDO check
bounced.5 Verification from company records showed that petitioner
never remitted the subject check to Mega Foam. However, Baby Aquino
said that she had already paid Mega Foam ₱10,000.00 cash in August
1997 as replacement for the dishonored check.6X
Generoso Capitle, presented as a hostile witness, admitted depositing the
subject BDO check in his bank account, but explained that the check
came into his possession when some unknown woman arrived at his
house around the first week of July 1997 to have the check
rediscounted. He parted with his cash in exchange for the check without
even bothering to inquire into the identity of the woman or her address.
When he was informed by the bank that the check bounced, he merely
disregarded it as he didn’t know where to find the woman who
rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its
agents. Ten pieces of ₱1,000.00 bills provided by Dyhengco were marked
and dusted with fluorescent powder by the NBI. Thereafter, the bills were
given to Ricablanca, who was tasked to pretend that she was going along
with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house.
Petitioner, who was then holding the bounced BDO check, handed over
said check to Ricablanca. They originally intended to proceed to Baby
Aquino's place to have the check replaced with cash, but the plan did not
push through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioner’s house, where
she met petitioner and Jacqueline Capitle. Petitioner, her husband, and
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle
decided not to go with the group because she decided to go shopping. It
was only petitioner, her husband, Ricablanca and Valencia who then
117
boarded petitioner's jeep and went on to Baby Aquino's factory. Only
Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino.
However, the cash she actually brought out from the premises was the
₱10,000.00 marked money previously given to her by Dyhengco.
Ricablanca divided the money and upon returning to the jeep, gave
₱5,000.00 each to Valencia and petitioner. Thereafter, petitioner and
Valencia were arrested by NBI agents, who had been watching the whole
time.
Petitioner and Valencia were brought to the NBI office where the Forensic
Chemist found fluorescent powder on the palmar and dorsal aspects of
both of their hands. This showed that petitioner and Valencia handled
the marked money. The NBI filed a criminal case for qualified theft
against the two and one Jane Doe who was later identified as Jacqueline
Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check
and presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she
resigned on June 30, 1997, but claimed that she had stopped collecting
payments from Baby Aquino for quite some time before her resignation
from the company. She further testified that, on the day of the arrest,
Ricablanca came to her mother’s house, where she was staying at that
time, and asked that she accompany her (Ricablanca) to Baby Aquino's
house. Since petitioner was going for a pre-natal check-up at the Chinese
General Hospital, Ricablanca decided to hitch a ride with the former and
her husband in their jeep going to Baby Aquino's place in Caloocan City.
She allegedly had no idea why Ricablanca asked them to wait in their
jeep, which they parked outside the house of Baby Aquino, and was very
surprised when Ricablanca placed the money on her lap and the NBI
agents arrested them.
[Document title]
Anita Valencia also admitted that she was the cashier of Mega Foam
until she resigned on June 30, 1997. It was never part of her job to
collect payments from customers. According to her, on the morning of
August 21, 1997, Ricablanca called her up on the phone, asking if she
(Valencia) could accompany her (Ricablanca) to the house of Baby
Aquino. Valencia claims that she agreed to do so, despite her admission
during cross-examination that she did not know where Baby Aquino
resided, as she had never been to said house. They then met at the
house of petitioner's mother, rode the jeep of petitioner and her husband,
and proceeded to Baby Aquino's place. When they arrived at said place,
Ricablanca alighted, but requested them to wait for her in the jeep. After
ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave
her money and so she even asked, "What is this?" Then, the NBI agents
arrested them.
The trial of the three accused went its usual course and, on October 4,
1999, the RTC rendered its Decision, the dispositive portion of which
reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma
Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and
Jacqueline Capitle GUILTY beyond reasonable doubt of the crime
of QUALIFIED THEFT and each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11)
DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND
TWENTY (20) DAYS, as maximum.
SO ORDERED.7X
The three appealed to the CA and, on December 16, 2003, a Decision
was promulgated, the dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court
is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
118
(b) the sentence against accused Anita Valencia is reduced to 4
months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was
filed only for petitioner Gemma Tubale Jacinto, but the same was denied
per Resolution dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner
alone, assailing the Decision and Resolution of the CA. The issues raised
in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in
the information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond
reasonable doubt.8X
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to
constitute the elements of the crime of qualified theft defined under
Article 308, in relation to Article 310, both of the Revised Penal Code: (1)
the taking of personal property - as shown by the fact that petitioner, as
collector for Mega Foam, did not remit the customer's check payment to
her employer and, instead, appropriated it for herself; (2) said property
belonged to another − the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to
gain – this is presumed from the act of unlawful taking and further
shown by the fact that the check was deposited to the bank account of
petitioner's brother-in-law; (4) it was done without the owner’s consent –
petitioner hid the fact that she had received the check payment from her
[Document title]
employer's customer by not remitting the check to the company; (5) it
was accomplished without the use of violence or intimidation against
persons, nor of force upon things – the check was voluntarily handed to
petitioner by the customer, as she was known to be a collector for the
company; and (6) it was done with grave abuse of confidence – petitioner
is admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the
Revised Penal Code, the personal property subject of the theft must
have some value, as the intention of the accused is to gain from the
thing stolen. This is further bolstered by Article 309, where the law
provides that the penalty to be imposed on the accused is dependent on
the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to
Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the
crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable to the
present case. In Intod, the accused, intending to kill a person, peppered
the latter’s bedroom with bullets, but since the intended victim was not
home at the time, no harm came to him. The trial court and the CA held
Intod guilty of attempted murder. But upon review by this Court, he was
adjudged guilty only of an impossible crime as defined and penalized in
paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal
Code, because of the factual impossibility of producing the crime.
Pertinent portions of said provisions read as follows:X
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:
xxxx
119
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate to
ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. - When
the person intending to commit an offense has already performed the
acts for the execution of the same but nevertheless the crime was not
produced by reason of the fact that the act intended was by its nature
one of impossible accomplishment or because the means employed by
such person are essentially inadequate to produce the result desired by
him, the court, having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon him the penalty
of arresto mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act
performed would be an offense against persons or property; (2) that the
act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate or
ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code was further
explained by the Court in Intod10 in this wise:X
Under this article, the act performed by the offender cannot produce an
offense against persons or property because: (1) the commission of the
offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the
offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. There
must be either (1) legal impossibility, or (2) physical impossibility of
[Document title]
accomplishing the intended act in order to qualify the act as an
impossible crime.
Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x 11X
In Intod, the Court went on to give an example of an offense that involved
factual impossibility, i.e., a man puts his hand in the coat pocket of
another with the intention to steal the latter's wallet, but gets nothing
since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual
impossibility given in Intod. In this case, petitioner performed all the acts
to consummate the crime of qualified theft, which is a crime against
property. Petitioner's evil intent cannot be denied, as the mere act of
unlawfully taking the check meant for Mega Foam showed her intent to
gain or be unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance
of the check being unfunded, a fact unknown to petitioner at the time,
that prevented the crime from being produced. The thing unlawfully
taken by petitioner turned out to be absolutely worthless, because the
check was eventually dishonored, and Mega Foam had received the cash
to replace the value of said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the ₱5,000.00
marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in Valenzuela v.
120
People12 that under the definition of theft in Article 308 of the Revised
Penal Code, "there is only one operative act of execution by the actor
involved in theft ─ the taking of personal property of another."
Elucidating further, the Court held, thus:X
x x x Parsing through the statutory definition of theft under Article 308,
there is one apparent answer provided in the language of the law — that
theft is already "produced" upon the "tak[ing of] personal property of
another without the latter’s consent."
xxxx
x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with intent to
gain. Viewed from that perspective, it is immaterial to the product of the
felony that the offender, once having committed all the acts of execution
for theft, is able or unable to freely dispose of the property stolen since
the deprivation from the owner alone has already ensued from such acts
of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of one’s personal
property, is the element which produces the felony in its consummated
stage. x x x 13X
From the above discussion, there can be no question that as of the time
that petitioner took possession of the check meant for Mega Foam,
she had performed all the acts to consummate the crime of theft,
had it not been impossible of accomplishment in this case. The
circumstance of petitioner receiving the ₱5,000.00 cash as supposed
[Document title]

replacement for the dishonored check was no longer necessary for the
consummation of the crime of qualified theft. Obviously, the plan to
convince Baby Aquino to give cash as replacement for the check was
hatched only after the check had been dishonored by the drawee bank.
Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a
continuation of the theft. At most, the fact that petitioner was caught
receiving the marked money was merely corroborating evidence to
strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored
check replaced with cash by its issuer is a different and separate
fraudulent scheme. Unfortunately, since said scheme was not included
or covered by the allegations in the Information, the Court cannot
pronounce judgment on the accused; otherwise, it would violate the due
process clause of the Constitution. If at all, that fraudulent scheme could
have been another possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision
of the Court of Appeals, dated December 16, 2003, and its Resolution
dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is
found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in
Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively.
Petitioner is sentenced to suffer the penalty of six (6) months of arrresto
mayor, and to pay the costs. Republic of the Philippines
SUPREME COURT
SO ORDERED. Manila
DIOSDADO M. PERALTA
EN BANC
Associate Justice
G.R. No. L-12155            February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.

121
[Document title]
Manuel Roxas for appellant.
Attorney-General Avanceña for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly
weapon was used. The blow was directed toward a vital part of the body.
The aggressor stated his purpose to kill, thought he had killed, and
threw the body into the bushes. When he gave himself up he declared
that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted.
The accused rushed upon the girl suddenly and struck her from behind,
in part at least, with a sharp bolo, producing a frightful gash in the
lumbar region and slightly to the side eight and one-half inches long and
two inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for
the reason that she had theretofore charged him criminally before the
local officials with having raped her and with being the cause of her
pregnancy. He was her mother's querido and was living with her as such
at the time the crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question
is the precise crime of which he should be convicted. It is contended, in
the first place, that, if death has resulted, the crime would not have been
murder but homicide, and in the second place, that it is attempted and
not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed
would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible
122
blow in the back and side with his bolo. Such an attack necessitates the
finding that it was made treacherously; and that being so the crime
would have been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code defines
a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission
of the felony directly by overt acts, and does not perform all the
acts of execution which constitute the felony by reason of some
cause or accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that
the defendant performed all of the acts which should have resulted in
the consummated crime and voluntarily desisted from further acts. A
crime cannot be held to be attempted unless the offender, after beginning
the commission of the crime by overt acts, is prevented, against his will,
by some outside cause from performing all of the acts which should
produce the crime. In other words, to be an attempted crime the purpose
of the offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no intervention of a foreign
[Document title]

or extraneous cause or agency between the beginning of the commission The penalty should have been thirteen years of cadena temporal there
of the crime and the moment when all of the acts have been performed being neither aggravating nor mitigating circumstance. As so modified,
which should result in the consummated crime; while in the former there the judgment is affirmed with costs. So ordered.
is such intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is stopped
short of that point by some cause apart from his voluntary desistance.

To put it in another way, in case of an attempt the offender never passes

the subjective phase of the offense. He is interrupted and compelled to
desist by the intervention of outside causes before the subjective phase is
passed.

On the other hand, in case of frustrated crimes the subjective phase is

completely passed. Subjectively the crime is complete. Nothing
interrupted the offender while he was passing through the subjective
phase. The crime, however, is not consummated by reason of the
intervention of causes independent of the will of the offender. He did all
that was necessary to commit the crime. If the crime did not result as a
consequence it was due to something beyond his control.

The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and
the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of the
offender over which he has control — that period between the point
where he begins and the points where he voluntarily desists.
If between these two points the offender is stopped by reason of any
cause outside of his own voluntary desistance, the subjective phase has
not been passed and it is an attempt. If he is not so stopped but
continues until he performs the last act, it is frustrated.

That the case before us is frustrated is clear.

123
[Document title]
G. R. No. 160188              June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result,
he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on
a common theory expounded in two well-known decisions 1 rendered
decades ago by the Court of Appeals, upholding the existence of
frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by
this Court.
As far as can be told,2 the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was
in 1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC. 5 This petition now gives
124
occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and
Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at
around 4:30 p.m., petitioner and Calderon were sighted outside the
Super Sale Club, a supermarket within the ShoeMart (SM) complex along
North EDSA, by Lorenzo Lago (Lago), a security guard who was then
manning his post at the open parking area of the supermarket. Lago saw
petitioner, who was wearing an identification card with the mark
"Receiving Dispatching Unit (RDU)," hauling a push cart with cases of
detergent of the well-known "Tide" brand. Petitioner unloaded these
cases in an open parking space, where Calderon was waiting. Petitioner
then returned inside the supermarket, and after five (5) minutes,
emerged with more cartons of Tide Ultramatic and again unloaded these
boxes to the same area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded
the cab and directed it towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When
Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert
his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The
filched items seized from the duo were four (4) cases of Tide Ultramatic,
one (1) case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security office
before they were transferred on the same day to the Baler Station II of
[Document title]
the Philippine National Police, Quezon City, for investigation. It appears
from the police investigation records that apart from petitioner and
Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP
Station in connection with the incident. However, after the matter was
referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in
Informations prepared on 20 May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
they were haled by Lago and his fellow security guards after a commotion
and brought to the Baler PNP Station. Calderon alleged that on the
afternoon of the incident, he was at the Super Sale Club to withdraw
from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada
decided to buy snacks inside the supermarket. It was while they were
eating that they heard the gunshot fired by Lago, leading them to head
out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention. 12 Meanwhile, petitioner
testified during trial that he and his cousin, a Gregorio Valenzuela, 13 had
been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security
guard Lago fire a shot. The gunshot caused him and the other people at
the scene to start running, at which point he was apprehended by Lago
and brought to the security office. Petitioner claimed he was detained at
the security office until around 9:00 p.m., at which time he and the
others were brought to the Baler Police Station. At the station, petitioner
denied having stolen the cartons of detergent, but he was detained
overnight, and eventually brought to the prosecutor’s office where he was
charged with theft.14 During petitioner’s cross-examination, he admitted
that he had been employed as a "bundler" of GMS Marketing, "assigned
at the supermarket" though not at SM.15
125
In a Decision16 promulgated on 1 February 2000, the Regional Trial
Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum. 17 The RTC
found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused
as perpetrators of the crime.
Both accused filed their respective Notices of Appeal, 18 but only petitioner
filed a brief19 with the Court of Appeals, causing the appellate court to
deem Calderon’s appeal as abandoned and consequently dismissed.
Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he
was never placed in a position to freely dispose of the articles
stolen.20 However, in its Decision dated 19 June 2003, 21 the Court of
Appeals rejected this contention and affirmed petitioner’s
conviction.22 Hence the present Petition for Review, 23 which expressly
seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the
theft of several cases of detergent with a total value of ₱12,090.00 of
which he was charged. 25 As such, there is no cause for the Court to
consider a factual scenario other than that presented by the prosecution,
as affirmed by the RTC and the Court of Appeals. The only question to
consider is whether under the given facts, the theft should be deemed as
consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites26 two decisions rendered many years ago by the Court of Appeals:
People v. Diño27 and People v. Flores.28 Both decisions elicit the interest
[Document title]
of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the
present case. Petitioner invoked the same rulings in his appeal to the
Court of Appeals, yet the appellate court did not expressly consider the
import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to
the Diño and Flores rulings since they have not yet been expressly
adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Diño and
Flores have attained a level of renown reached by very few other appellate
court rulings. They are comprehensively discussed in the most popular of
our criminal law annotations,29 and studied in criminal law classes as
textbook examples of frustrated crimes or even as definitive of frustrated
theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Diño and Flores
are doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any
scenario that involves the thief having to exit with the stolen property
through a supervised egress, such as a supermarket checkout counter or
a parking area pay booth, may easily call for the application of Diño and
Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Diño and Flores and
the theories offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to examine
whether those theories are correct and should continue to influence
prosecutors and judges in the future.
III.
126
To delve into any extended analysis of Diño and Flores, as well as the
specific issues relative to "frustrated theft," it is necessary to first refer to
the basic rules on the three stages of crimes under our Revised Penal
Code.30
Article 6 defines those three stages, namely the consummated, frustrated
and attempted felonies. A felony is consummated "when all the elements
necessary for its execution and accomplishment are present." It is
frustrated "when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or
that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by
the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends
and the objective phase begins.32 It has been held that if the offender
never passes the subjective phase of the offense, the crime is merely
attempted.33 On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, "[s]ubjectively
the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution despite commencing
the commission of a felony, the crime is undoubtedly in the attempted
stage. Since the specific acts of execution that define each crime under
the Revised Penal Code are generally enumerated in the code itself, the
task of ascertaining whether a crime is attempted only would need to
compare the acts actually performed by the accused as against the acts
that constitute the felony under the Revised Penal Code.
[Document title]
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was "produced" after
all the acts of execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal
Code, while the elements in turn unravel the particular requisite acts of
execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea"
supplies an important characteristic of a crime, that "ordinarily, evil
intent must unite with an unlawful act for there to be a crime," and
accordingly, there can be no crime when the criminal mind is
wanting.35 Accepted in this jurisdiction as material in crimes mala in
se,36 mens rea has been defined before as "a guilty mind, a guilty or
wrongful purpose or criminal intent,"37 and "essential for criminal
liability."38 It follows that the statutory definition of our mala in se crimes
must be able to supply what the mens rea of the crime is, and indeed the
U.S. Supreme Court has comfortably held that "a criminal law that
contains no mens rea requirement infringes on constitutionally protected
rights."39 The criminal statute must also provide for the overt acts that
constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus. 40
It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable
that the language of the law expressly provide when the felony is
produced. Without such provision, disputes would inevitably ensue on
the elemental question whether or not a crime was committed, thereby
presaging the undesirable and legally dubious set-up under which the
judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term is embedded
127
which attests when the felony is produced by the acts of execution. For
example, the statutory definition of murder or homicide expressly uses
the phrase "shall kill another," thus making it clear that the felony is
produced by the death of the victim, and conversely, it is not produced if
the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any person
who, with intent to gain but without violence against or intimidation of
persons nor force upon things, shall take personal property of another
without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass
is forbidden or which belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall gather cereals, or other
forest or farm products.
Article 308 provides for a general definition of theft, and three alternative
and highly idiosyncratic means by which theft may be committed. 41 In
the present discussion, we need to concern ourselves only with the
general definition since it was under it that the prosecution of the
accused was undertaken and sustained. On the face of the definition,
there is only one operative act of execution by the actor involved in theft
─ the taking of personal property of another. It is also clear from the
[Document title]
provision that in order that such taking may be qualified as theft, there
must further be present the descriptive circumstances that the taking
was with intent to gain; without force upon things or violence against or
intimidation of persons; and it was without the consent of the owner of
the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1) that
there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5) that the taking
be accomplished without the use of violence against or intimidation of
persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the definition
of theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass "any kind of physical handling of property
belonging to another against the will of the owner," 43 a definition similar
to that by Paulus that a thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea had taken
hold that more than mere physical handling, there must further be an
intent of acquiring gain from the object, thus: "[f]urtum est contrectatio
rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain,
was maintained in both the Spanish and Filipino penal laws, even as it
has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or
"unlawful taking," to characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to
be coupled with "the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided
by the Court of Appeals ruled, alternatively, that there must be
128
permanency in the taking48 or an intent to permanently deprive the
owner of the stolen property; 49 or that there was no need for permanency
in the taking or in its intent, as the mere temporary possession by the
offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the
Court adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful
taking.51
So long as the "descriptive" circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the completion of
the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the attempted
stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without
need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales
Club, petitioner forfeited the extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated
theft, we are obliged to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the theft would have been
frustrated only, once the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, "do not produce [such theft]
by reason of causes independent of the will of the perpetrator." There are
clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will
of the perpetrator. The second factor ultimately depends on the evidence
at hand in each particular case. The first, however, relies primarily on a
doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the
commission of all the acts of execution.
[Document title]
So, in order to ascertain whether the theft is consummated or frustrated,
it is necessary to inquire as to how exactly is the felony of theft
"produced." Parsing through the statutory definition of theft under Article
308, there is one apparent answer provided in the language of the law —
that theft is already "produced" upon the "tak[ing of] personal property of
another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt from
the baggage of a foreign national and secreted the item in his desk at the
Custom House. At no time was the accused able to "get the merchandise
out of the Custom House," and it appears that he "was under observation
during the entire transaction."54 Based apparently on those two
circumstances, the trial court had found him guilty, instead, of
frustrated theft. The Court reversed, saying that neither circumstance
was decisive, and holding instead that the accused was guilty of
consummated theft, finding that "all the elements of the completed crime
of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court
of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by
the policeman but sometime later. The court said: "[x x x] The trial court
did not err [x x x ] in considering the crime as that of consummated theft
instead of frustrated theft inasmuch as nothing appears in the record
showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its utilization by him
for an interval of time." (Decision of the Supreme Court of Spain, October
14, 1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the
act, although noticing the theft, did not do anything to prevent it.
129
Subsequently, however, while the defendant was still inside the church,
the offended party got back the money from the defendant. The court
said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the Supreme Court of
Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of
a key opened up a case, and from the case took a small box, which was
also opened with a key, from which in turn he took a purse containing
461 reales and 20 centimos, and then he placed the money over the
cover of the case; just at this moment he was caught by two guards who
were stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it
from the place where it had been, and having taken it with his hands
with intent to appropriate the same, he executed all the acts necessary to
constitute the crime which was thereby produced; only the act of making
use of the thing having been frustrated, which, however, does not go to
make the elements of the consummated crime." (Decision of the Supreme
Court of Spain, June 13, 1882.) 56
It is clear from the facts of Adiao itself, and the three (3) Spanish
decisions cited therein, that the criminal actors in all these cases had
been able to obtain full possession of the personal property prior to their
apprehension. The interval between the commission of the acts of theft
and the apprehension of the thieves did vary, from "sometime later" in
the 1898 decision; to the very moment the thief had just extracted the
money in a purse which had been stored as it was in the 1882 decision;
and before the thief had been able to spirit the item stolen from the
building where the theft took place, as had happened in Adiao and the
1897 decision. Still, such intervals proved of no consequence in those
cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to
another.
[Document title]
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is
People v. Sobrevilla,57 where the accused, while in the midst of a crowd in
a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, "caught hold
of the [accused]’s shirt-front, at the same time shouting for a policeman;
after a struggle, he recovered his pocket-book and let go of the defendant,
who was afterwards caught by a policeman." 58 In rejecting the contention
that only frustrated theft was established, the Court simply said, without
further comment or elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime of
theft. If the pocket-book was afterwards recovered, such recovery does
not affect the [accused’s] criminal liability, which arose from the
[accused] having succeeded in taking the pocket-book. 59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme
Court cases cited in the latter, in that the fact that the offender was able
to succeed in obtaining physical possession of the stolen item, no matter
how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein
contradict the position of petitioner in this case. Yet to simply affirm
without further comment would be disingenuous, as there is another
school of thought on when theft is consummated, as reflected in the Diño
and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after
Adiao and 15 years before Flores. The accused therein, a driver employed
by the United States Army, had driven his truck into the port area of the
South Harbor, to unload a truckload of materials to waiting U.S. Army
personnel. After he had finished unloading, accused drove away his
truck from the Port, but as he was approaching a checkpoint of the
Military Police, he was stopped by an M.P. who inspected the truck and
130
found therein three boxes of army rifles. The accused later contended
that he had been stopped by four men who had loaded the boxes with
the agreement that they were to meet him and retrieve the rifles after he
had passed the checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals modified the conviction,
holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles "pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo
inside the depot, it would be allowed to pass through the check point
without further investigation or checking." 60 This point was deemed
material and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles
stolen, even if it were more or less momentary." 61 Support for this
proposition was drawn from a decision of the Supreme Court of Spain
dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so haga
en circunstancias tales que permitan al sustractor la libre disposicion de
aquella, siquiera sea mas o menos momentaneamente, pues de otra
suerte, dado el concepto del delito de hurto, no puede decirse en realidad
que se haya producido en toda su extension, sin materializar demasiado
el acto de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles
stolen must first be passed through the M.P. check point, but since the
offense was opportunely discovered and the articles seized after all the
acts of execution had been performed, but before the loot came under the
final control and disposal of the looters, the offense can not be said to
[Document title]
have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of
frustrated theft.63
Diño thus laid down the theory that the ability of the actor to freely
dispose of the items stolen at the time of apprehension is determinative
as to whether the theft is consummated or frustrated. This theory was
applied again by the Court of Appeals some 15 years later, in Flores, a
case which according to the division of the court that decided it, bore "no
substantial variance between the circumstances [herein] and in
[Diño]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring
Company, issued a delivery receipt for one empty sea van to the truck
driver who had loaded the purportedly empty sea van onto his truck at
the terminal of the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and discovered that
the "empty" sea van had actually contained other merchandise as
well.65 The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime.
Before the Court of Appeals, accused argued in the alternative that he
was guilty only of attempted theft, but the appellate court pointed out
that there was no intervening act of spontaneous desistance on the part
of the accused that "literally frustrated the theft." However, the Court of
Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial
variance" between Diño and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Diño, citing a
"traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said
"traditional ruling" was qualified by the words "is placed in a situation
where [the actor] could dispose of its contents at once." 66 Pouncing on
this qualification, the appellate court noted that "[o]bviously, while the
truck and the van were still within the compound, the petitioner could
131
not have disposed of the goods ‘at once’." At the same time, the Court of
Appeals conceded that "[t]his is entirely different from the case where a
much less bulk and more common thing as money was the object of the
crime, where freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the ability
of the actor "to freely dispose of the articles stolen, even if it were only
momentary." Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, "es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea
mas o menos momentaneamente." The qualifier "siquiera sea mas o
menos momentaneamente" proves another important consideration, as it
implies that if the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed
consummated. Such circumstance was not present in
either Diño or Flores, as the stolen items in both cases were retrieved
from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied in
Flores, the character of the item stolen could lead to a different
conclusion as to whether there could have been "free disposition," as in
the case where the chattel involved was of "much less bulk and more
common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following pointed
observation on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when
the thief is able to freely dispose of the stolen articles even if it were more
or less momentary. Or as stated in another case[69 ], theft is
consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of the
thing whereby the thief places it under his control and in such a
[Document title]
situation that he could dispose of it at once. This ruling seems to have
been based on Viada’s opinion that in order the theft may be
consummated, "es preciso que se haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao
and other cases, also states that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing
with intent to appropriate the same, although his act of making use of
the thing was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming
variance with the Diño and Flores rulings. People v. Batoon 73 involved an
accused who filled a container with gasoline from a petrol pump within
view of a police detective, who followed the accused onto a passenger
truck where the arrest was made. While the trial court found the accused
guilty of frustrated qualified theft, the Court of Appeals held that the
accused was guilty of consummated qualified theft, finding that "[t]he
facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate
the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital
linen from a supply depot and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen items were discovered
by the Military Police running the checkpoint. Even though those facts
clearly admit to similarity with those in Diño, the Court of Appeals held
that the accused were guilty of consummated theft, as the accused "were
able to take or get hold of the hospital linen and that the only thing that
was frustrated, which does not constitute any element of theft, is the use
or benefit that the thieves expected from the commission of the offense." 76
In pointing out the distinction between Diño and Espiritu, Reyes wryly
observes that "[w]hen the meaning of an element of a felony is
controversial, there is bound to arise different rulings as to the stage of
execution of that felony."77 Indeed, we can discern from this survey of
132
jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of
the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry,
we have to reckon with the import of this Court’s 1984 decision in
Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied
four (4) persons in the premises of his plantation, in the act of gathering
and tying some coconuts. The accused were surprised by the owner
within the plantation as they were carrying with them the coconuts they
had gathered. The accused fled the scene, dropping the coconuts they
had seized, and were subsequently arrested after the owner reported the
incident to the police. After trial, the accused were convicted of qualified
theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code, 79 but further held that the accused
were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the
parties. What does appear, though, is that the disposition of that issue
was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because
petitioners were not able to perform all the acts of execution which
should have produced the felony as a consequence. They were not able to
carry the coconuts away from the plantation due to the timely arrival of
the owner.80
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No legal reference or citation was offered for this averment, whether
Diño, Flores or the Spanish authorities who may have bolstered the
conclusion. There are indeed evident problems with this formulation in
Empelis.
Empelis held that the crime was only frustrated because the actors "were
not able to perform all the acts of execution which should have produced
the felon as a consequence."81 However, per Article 6 of the Revised Penal
Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender
was not able to perform all the acts of execution, the crime is attempted,
provided that the non-performance was by reason of some cause or
accident other than spontaneous desistance. Empelis concludes that the
crime was
frustrated because not all of the acts of execution were performed due to
the timely arrival of the owner. However, following Article 6 of the Revised
Penal Code, these facts should elicit the conclusion that the crime was
only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of
spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider
the present petition. Even if the two sentences we had cited actually
aligned with the definitions provided in Article 6 of the Revised Penal
Code, such passage bears no reflection that it is the product of the
considered evaluation of the relevant legal or jurisprudential thought.
Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even
cited as authority on theft. Indeed, we cannot see how Empelis can
contribute to our present debate, except for the bare fact that it proves
that the Court had once deliberately found an accused guilty of
frustrated theft. Even if Empelis were considered as a precedent for
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frustrated theft, its doctrinal value is extremely compromised by the
erroneous legal premises that inform it, and also by the fact that it has
not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given
that frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870
Codigo Penal de España was then in place. The definition of the crime of
theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su
dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño
causado, salvo los casos previstos en los artίculos 606, núm. 1.0; 607,
núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617
y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the said
code would be revised again in 1932, and several times thereafter. In
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fact, under the Codigo Penal Español de 1995, the crime of theft is now
simply defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será
castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of
Spain, "la libre disposicion" of the property is not an element or a
statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish
jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de España. Therein, he raised at
least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or
consummated theft was committed "[e]l que en el momento mismo de
apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that
decision’s factual predicate occasioning the statement was apparently
very different from Diño, for it appears that the 1888 decision involved an
accused who was surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a mannequin, and who then
proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held
to that effect.85 A few decades later, the esteemed Eugenio Cuello Calón
pointed out the inconsistent application by the Spanish Supreme Court
with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro
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que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervención de la policia situada en el local donde se realizó
la sustracción que impidió pudieran los reos disponer de lo sustraído, 30
de octubre 1950. Hay "por lo menos" frustración, si existe
apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril
1930; hay frustración "muy próxima" cuando el culpable es detenido por
el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931.
Algunos fallos han considerado la existencia de frustración cuando,
perseguido el culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo
1921; esta doctrina no es admissible, éstos, conforme a lo antes
expuesto, son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is
actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposición del agente. Con
este criterio coincide la doctrina sentada últimamente porla
jurisprudencia española que generalmente considera consumado el
hurto cuando el culpable coge o aprehende la cosa y ésta quede por
tiempo más o menos duradero bajo su poder. El hecho de que éste pueda
aprovecharse o no de lo hurtado es indiferente. El delito no pierde su
carácter de consumado aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la frustración, pues es muy
dificil que el que hace cuanto es necesario para la consumación del hurto
no lo consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos
delitos consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who
was content with replicating the Spanish Supreme Court decisions on
the matter, Cuello Calón actually set forth his own thought that
questioned whether theft could truly be frustrated, since "pues es muy
dificil que el que hace cuanto es necesario para la consumación del hurto
no lo consume efectivamente." Otherwise put, it would be difficult to
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foresee how the execution of all the acts necessary for the completion of
the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept frustrated
theft, as proposed in Diño and Flores. A final ruling by the Court that
there is no crime of frustrated theft in this jurisdiction will not lead to
scholastic pariah, for such a submission is hardly heretical in light of
Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to
look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are,
to accept that theft is capable of commission in its frustrated stage.
Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Diño and Flores doctrines,
the answer has to be in the negative. If we did so, it would arise not out
of obeisance to an inexorably higher command, but from the exercise of
the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it
lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of
penal laws should be aligned with what was the evident legislative intent,
as expressed primarily in the language of the law as it defines the crime.
It is Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. Due
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respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal laws
where a "narrow interpretation" is appropriate. "The Court must take
heed of language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids." 89
With that in mind, a problem clearly emerges with
the Diño/Flores dictum. The ability of the offender to freely dispose of the
property stolen is not a constitutive element of the crime of theft. It finds
no support or extension in Article 308, whether as a descriptive or
operative element of theft or as the mens rea or actus reus of the felony.
To restate what this Court has repeatedly held: the elements of the crime
of theft as provided for in Article 308 of the Revised Penal Code are: (1)
that there be taking of personal property; (2) that said property belongs
to another; (3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5) that the taking
be accomplished without the use of violence against or intimidation of
persons or force upon things.90
Such factor runs immaterial to the statutory definition of theft, which is
the taking, with intent to gain, of personal property of another without
the latter’s consent. While the Diño/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only
the perspective of intent to gain on the part of the offender, compounded
by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the deprivation from
the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier
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cited, that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate
the same, although his act of making use of the thing was frustrated." 91
It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of "taking" itself, in that there
could be no true taking until the actor obtains such degree of control
over the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been completed,
the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is
whether there is indeed a crime of frustrated theft, and such
consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are
satisfied beyond reasonable doubt that the taking by the petitioner was
completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of
time that he was able to drop these off at a spot in the parking lot, and
long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. 92 And long
ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of
the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will
be here noted that the definition does not require that the taking should
be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance. 94
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Insofar as we consider the present question, "unlawful taking" is most
material in this respect. Unlawful taking, which is the deprivation of
one’s personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act
of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308
of the Revised Penal Code, theft cannot have a frustrated stage. Theft can
only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider
that once the offenders therein obtained possession over the stolen
items, the effect of the felony has been produced as there has been
deprivation of property. The presumed inability of the offenders to freely
dispose of the stolen property does not negate the fact that the owners
have already been deprived of their right to possession upon the
completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the
inability of the offender to freely dispose of the stolen property frustrates
the theft — would introduce a convenient defense for the accused which
does not reflect any legislated intent,95 since the Court would have carved
a viable means for offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is difficult to
formulate definite standards as to when a stolen item is susceptible to
free disposal by the thief. Would this depend on the psychological belief
of the offender at the time of the commission of the crime, as implied in
Diño?
Or, more likely, the appreciation of several classes of factual
circumstances such as the size and weight of the property, the location
of the property, the number and identity of people present at the scene of
the crime, the number and identity of people whom the offender is
expected to encounter upon fleeing with the stolen property, the manner
in which the stolen item had been housed or stored; and quite frankly, a
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whole lot more. Even the fungibility or edibility of the stolen item would frustrated theft under the Revised Penal Code does not detract from the
come into account, relevant as that would be on whether such property correctness of this conclusion. It will take considerable amendments to
is capable of free disposal at any stage, even after the taking has been our Revised Penal Code in order that frustrated theft may be recognized.
consummated. Our deference to Viada yields to the higher reverence for legislative
intent.
All these complications will make us lose sight of the fact that beneath all
the colorful detail, the owner was indeed deprived of property by one who WHEREFORE, the petition is DENIED. Costs against petitioner.
intended to produce such deprivation for reasons of gain. For such will
remain the presumed fact if frustrated theft were recognized, for therein, SO ORDERED.
all of the acts of execution, including the taking, have been completed. If
the facts establish the non-completion of the taking due to these peculiar DANTE O. TINGA
circumstances, the effect could be to downgrade the crime to the Associate Justice
attempted stage, as not all of the acts of execution have been performed.
But once all these acts have been executed, the taking has been WE CONCUR:
completed, causing the unlawful deprivation of property, and ultimately
the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in

common sense. Yet they do not align with the legislated framework of the
crime of theft. The Revised Penal Code provisions on theft have not been
designed in such fashion as to accommodate said rulings. Again, there is
no language in Article 308 that expressly or impliedly allows that the
"free disposition of the items stolen" is in any way determinative of
whether the crime of theft has been produced. Diño itself did not rely on
Philippine laws or jurisprudence to bolster its conclusion, and the later
Flores was ultimately content in relying on Diño alone for legal support.
These cases do not enjoy the weight of stare decisis, and even if they did,
their erroneous appreciation of our law on theft leave them susceptible to
reversal. The same holds true of Empilis, a regrettably stray decision
which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime
of frustrated theft. As petitioner has latched the success of his appeal on
our acceptance of the Diño and Flores rulings, his petition must be
denied, for we decline to adopt said rulings in our jurisdiction. That it
has taken all these years for us to recognize that there can be no

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