SatCon

GREGORIO PERFECTO, plaintiff-appellee, vs. BIBIANO MEER, Collector of Internal

Revenue, defendant-appellant. ................................................................................................................ 2
PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees, vs. SATURNINO
DAVID, as Collector of Internal Revenue, defendant-appellant........................................................ 16
DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO,
JR., petitioners, vs. COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL
OFFICER, SUPREME COURT OF THE PHILIPPINES, respondents. ........................................... 21
JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and
PEOPLE OF THE PHILIPPINES, respondents. .................................................................................. 27
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO MAPA Y
MAPULONG, defendant-appellant...................................................................................................... 146
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MORO SUMAGUINA
MACARANDANG, defendant-appellant. ............................................................................................ 148
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees, vs. JOSE JABINAL Y
CARMEN, defendant-appellant............................................................................................................ 149
ERNESTO FRANCISCO, JR., Petitioner, vs. OMBUDSMAN ANIANO A. DESIERTO, JOSEPH
EJERCITO ESTRADA, MARIANO Z. VELARDE, FRANKLIN M. VELARDE, ROBERT C.
NACIANCENO, REY DIVINO S. DAVAL-SANTOS, SOLEDAD S. MEDINA-CUE, PATRICK B.
GATAN, LUIS V. MEDINA-CUE, SILVESTRE A. DE LEON, RAMON V. DUMAUAL, RUBEN A.
DE OCAMPO, MARIANO A. BENEDICTO II, GREGORIO R. VIGILAR, LUIS JUAN L. VIRATA,
CESAR E. A. VIRATA, MANUEL B. ZAMORA, JR., RONALDO B. ZAMORA, FRISCO F. SAN
JUAN and ARSENIO B. YULORespondents. .................................................................................... 153
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman,
RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE
PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO
CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. ................................................... 200
AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER ........................................... 250
Void for vagueness ............................................................................................................................ 252
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2348 February 27, 1950

GREGORIO PERFECTO, plaintiff-appellee,

vs.
BIBIANO MEER, Collector of Internal Revenue, defendant-appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon for oppositor
and appellant.
Gregorio Perfecto in his own behalf.

BENGZON, J.:

In April, 1947 the Collector of Internal Revenue required Mr. Justice Gregorio Perfecto to pay income
tax upon his salary as member of this Court during the year 1946. After paying the amount (P802),
he instituted this action in the Manila Court of First Instance contending that the assessment was
illegal, his salary not being taxable for the reason that imposition of taxes thereon would reduce it in
violation of the Constitution.

The Manila judge upheld his contention, and required the refund of the amount collected. The
defendant appealed.

The death of Mr. Justice Perfecto has freed us from the embarrassment of passing upon the claim of
a colleague. Still, as the outcome indirectly affects all the members of the Court, consideration of the
matter is not without its vexing feature. Yet adjudication may not be declined, because (a) we are not
legally disqualified; (b) jurisdiction may not be renounced, ad it is the defendant who appeals to this
Court, and there is no other tribunal to which the controversy may be referred; (c) supreme courts in
the United States have decided similar disputes relating to themselves; (d) the question touches all
the members of the judiciary from top to bottom; and (e) the issue involves the right of other
constitutional officers whose compensation is equally protected by the Constitution, for instance, the
President, the Auditor-General and the members of the Commission on Elections. Anyway the
subject has been thoroughly discussed in many American lawsuits and opinions, and we shall hardly
do nothing more than to borrow therefrom and to compare their conclusions to local conditions.
There shall be little occasion to formulate new propositions, for the situation is not unprecedented.

Our Constitution provides in its Article VIII, section 9, that the members of the Supreme Court and all
judges of inferior courts "shall receive such compensation as may be fixed by law, which shall not be
diminished during their continuance in office." It also provides that "until Congress shall provide
otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of sixteen
thousand pesos". When in 1945 Mr. Justice Perfecto assumed office, Congress had not "provided
otherwise", by fixing a different salary for associate justices. He received salary at the rate provided
by the Constitution, i.e., fifteen thousand pesos a year.

Now, does the imposition of an income tax upon this salary in 1946 amount to a diminution thereof?.
A note found at page 534 of volume 11 of the American Law Reports answers the question in the
affirmative. It says:

Where the Constitution of a state provides that the salaries of its judicial officers shall not be
dismissed during their continuance in office, it had been held that the state legislature cannot
impose a tax upon the compensation paid to the judges of its court. New Orleans v. Lea
(1859) 14 La. Ann. 194; Opinion of Attorney-General if N. C. (1856) 48 N. C. (3 Jones, L.)
Appx. 1; Re Taxation of Salaries of Judges (1902) 131 N. C. 692, 42 S. E. 970; Com. ex. rel.
Hepburn v. Mann (1843) 5 Watts & S,. (Pa.) 403 [but see to the contrary the earlier and
much criticized case of Northumberland county v. Chapman (1829) 2 Rawle (Pa.) 73]*

A different rule prevails in Wisconsin, according to the same annotation. Another state holding the
contrary view is Missouri.

The Constitution of the United States, likes ours, forbids the diminution of the compensation of
Judges of the Supreme Court and of inferior courts. The Federal Governments has an income tax
law. Does it embrace the salaries of federal judges? In answering this question, we should consider
four periods:

First period. No attempts was made to tax the compensation of Federal judges up to 1862 1.

Second period. 1862-1918. In July, 1862, a statute was passed subjecting the salaries of "civil
officers of the United States" to an income tax of three per cent. Revenue officers, construed it as
including the compensation of all judges; but Chief Justice Taney, speaking for the judiciary, wrote to
the Secretary of the Treasury a letter of protest saying, among other things:

The act in question, as you interpret it, diminishes the compensation of every judge 3 per
cent, and if it can be diminished to that extent by the name of a tax, it may, in the same way,
be reduced from time to time, at the pleasure of the legislature.

The judiciary is one of the three great departments of the government, created and
established by the Constitution. Its duties and powers are specifically set forth, and are of a
character that requires it to be perfectly independent of the two other departments, and in
order to place it beyond the reach and above even the suspicion of any such influence, the
power to reduce their compensation is expressly withheld from Congress, and excepted from
their powers of legislation.

Language could not be more plain than that used in the Constitution. It is, moreover, one of
its most important and essential provisions. For the articles which limits the powers of the
legislative and executive branches of the government, and those which provide safeguards
for the protection of the citizen in his person and property, would be of little value without a
judiciary to uphold and maintain them, which was free from every influence, direct and
indirect, that might by possibility in times of political excitement warp their judgments.

Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the
Compensation of the judges, as unconstitutional and void2.

The protest was unheeded, although it apparently bore the approval of the whole Supreme Court,
that ordered it printed among its records. But in 1869 Attorney-General Hoar upon the request of the
Secretary of the Treasury rendered an opinion agreeing with the Chief Justice. The collection of the
tax was consequently discontinued and the amounts theretofore received were all refunded. For half
a century thereafter judges' salaries were not taxed as income.3
Third period. 1919-1938. The Federal Income Tax Act of February 24, 1919 expressly provided that
taxable income shall include "the compensation of the judges of the Supreme Court and inferior
courts of the United States". Under such Act, Walter Evans, United States judge since 1899, paid
income tax on his salary; and maintaining that the impost reduced his compensation, he sued to
recover the money he had delivered under protest. He was upheld in 1920 by the Supreme Court in
an epoch-making decision.*, explaining the purpose, history and meaning of the Constitutional
provision forbidding impairment of judicial salaries and the effect of an income tax upon the salary of
a judge.

With what purpose does the Constitution provide that the compensation of the judges "shall
not be diminished during their continuance in office"? Is it primarily to benefit the judges, or
rather to promote the public weal by giving them that independence which makes for an
impartial and courageous discharge of the judicial function? Does the provision merely forbid
direct diminution, such as expressly reducing the compensation from a greater to a less sum
per year, and thereby leave the way open for indirect, yet effective, diminution, such as
withholding or calling back a part as tax on the whole? Or does it mean that the judge shall
have a sure and continuing right to the compensation, whereon he confidently may rely for
his support during his continuance in office, so that he need have no apprehension lest his
situation in this regard may be changed to his disadvantage?

The Constitution was framed on the fundamental theory that a larger measure of liberty and
justice would be assured by vesting the three powers — the legislative, the executive, and
the judicial — in separate departments, each relatively independent of the others and it was
recognized that without this independence — if it was not made both real and enduring —
the separation would fail of its purpose. all agreed that restraints and checks must be
imposed to secure the requisite measure of independence; for otherwise the legislative
department, inherently the strongest, might encroach on or even come to dominate the
others, and the judicial, naturally the weakest, might be dwarf or swayed by the other two,
especially by the legislative.

The particular need for making the judiciary independent was elaborately pointed our by
Alexander Hamilton in the Federalist, No. 78, from which we excerpt the following:

xxx xxx xxx

At a later period John Marshall, whose rich experience as lawyer, legislator, and chief justice
enable him to speak as no one else could, tersely said (debates Va. Gonv. 1829-1831, pp.
616, 619): . . . Our courts are the balance wheel of our whole constitutional system; and our
is the only constitutional system so balanced and controlled. Other constitutional systems
lacks complete poise and certainly of operation because they lack the support and
interpretation of authoritative, undisputable courts of law. It is clear beyond all need of
exposition that for the definite maintenance of constitutional understandings it is
indispensable, alike for the preservation of the liberty of the individual and for the
preservation of the integrity of the powers of the government, that there should be some
nonpolitical forum in which those understandings can be impartially debated and determined.
That forum our courts supply. There the individual may assert his rights; there the
government must accept definition of its authority. There the individual may challenge the
legality of governmental action and have it adjudged by the test of fundamental principles,
and that test the government must abide; there the government can check the too
aggressive self-assertion of the individual and establish its power upon lines which all can
comprehend and heed. The constitutional powers of the courts constitute the ultimate
safeguard alike of individual privilege and of governmental prerogative. It is in this sense that
 our judiciary is the balance wheel of our entire system; it is meant to maintain that nice
adjustment between individual rights and governmental powers which constitutes political
liberty. Constitutional government in the United States, pp. 17, 142.

Conscious in the nature and scope of the power being vested in the national courts,
recognizing that they would be charge with responsibilities more delicate and important than
any ever before confide to judicial tribunals, and appreciating that they were to be, in the
words of George Washington, "the keystone of our political fabric", the convention with
unusual accord incorporated in the Constitution the provision that the judges "shall hold their
offices during good behavior, and shall at stated times receive for their services a
compensation which shall not be diminished during their continuance in office." Can there be
any doubt that the two things thus coupled in place — the clause in respect of tenure during
good behaviour and that in respect of an undiminishable compensation-were equally coupled
in purpose? And is it not plain that their purposes was to invest the judges with an
independence in keeping with the delicacy and importance of their task, and with the
imperative need for its impartial and fearless performance? Mr. Hamilton said in explanation
and support of the provision (Federalist No. 79): "Next to permanency in office, nothing can
contribute more to the independence of the judges than a fixed provision for their
support. . . . In the general course of human nature, a power over a man's subsistence
amounts to a power over his will.

xxx xxx xxx

These considerations make it very plain, as we think, that the primary purpose of the
prohibition against diminution was not to benefit the judges, but, like the clause in respect of
tenure, to attract good and competent men to the bench, and to promote that independence
of action and judgment which is essential to the maintenance of the guaranties, limitations,
and pervading principles of the constitution, and to the admiration of justice without respect
to persons, and with equal concern for the poor and the rich.

xxx xxx xxx

But it is urged that what plaintiff was made to pay back was an income tax, and that a like tax
was exacted of others engaged in private employment.

If the tax in respect of his compensation be prohibited, it can find no justification in the
taxation of other income as to which there is no prohibition, for, of course, doing what the
Constitution permits gives no license to do what it prohibits.

The prohibition is general, contains no excepting words, and appears to be directed against
all diminution, whether for one purpose or another; and the reason for its adoption, as
publicly assigned at the time and commonly accepted ever since, make with impelling force
for the conclusion that the fathers of the Constitution intended to prohibit diminution by
taxation as well as otherwise, that they regarded the independence of the judges as of far
greater importance than any revenue that could come from taxing their salaries. (American
law Reports, annotated, Vol. 11, pp. 522-25; Evans vs. Gore, supra.)

In September 1, 1919, Samuel J. Graham assumed office as judge of the Unites States court of
claims. His salary was taxed by virtue of the same time income tax of February 24, 1919. At the time
he qualified, a statute fixed his salary at P7,500. He filed action for reimbursement, submitting the
same theory on which Evans v. Gore had been decided. The Supreme Court of the United States in
1925 reaffirmed that decision. It overruled the distinction offered by Solicitor-General Beck that
Judge Graham took office after the income tax had been levied on judicial salaries, (Evans qualified
before), and that Congress had power "to impose taxes which should apply to the salaries of Federal
judges appointed after the enactment of the taxing statute." (The law had made no distinction as to
judges appointed before or after its passage)

Fourth period. 1939 — Foiled in their previous attempts, the Revenue men persisted, and
succeeded in inserting in the United States Revenue Act of June, 1932 the modified proviso that
"gross income" on which taxes were payable included the compensation "of judges of courts of the
United States taking office after June 6, 1932". Joseph W. Woodrough qualified as United States
circuit judge on May 1, 1933. His salary as judge was taxed, and before the Supreme Court of the
United States the issue of decrease of remuneration again came up. That court, however, ruled
against him, declaring (in 1939) that Congress had the power to adopt the law. It said:

The question immediately before us is whether Congress exceeded its constitutional power
in providing that United States judges appointed after the Revenue Act of 1932 shall not
enjoy immunity from the incidence of taxation to which everyone else within the defined
classes of income is subjected. Thereby, of course, Congress has committed itself to the
position that a non-discriminatory tax laid generally on net income is not, when applied to the
income of federal judge, a diminution of his salary within the prohibition of Article 3, Sec. 1 of
the Constitution. To suggest that it makes inroads upon the independence of judges who
took office after the Congress has thus charged them with the common duties of citizenship,
by making them bear their aliquot share of the cost of maintaining the Government, is to
trivialize the great historic experience on which the framers based the safeguards of Article
3, Sec. 1. To subject them to a general tax is merely to recognize that judges also are
citizens, and that their particular function in government does not generate an immunity from
sharing with their fellow citizens the material burden of the government whose Constitution
and laws they are charged with administering. (O'Malley vs. Woodrough, 59 S. Ct. 838, A. L.
R. 1379.)

Now, the case for the defendant-appellant Collector of Internal Revenue is premised mainly on this
decision (Note A). He claims it holds "that federal judges are subject to the payment of income taxes
without violating the constitutional prohibition against the reduction of their salaries during their
continuance in office", and that it "is a complete repudiation of the ratio decidenci of Evans vs. Gore".
To grasp the full import of the O'Malley precedent, we should bear in mind that:

1. It does not entirely overturn Miles vs. Graham. "To the extent that what the Court now says is
inconsistent with what said in Miles vs. Graham, the latter can not survive", Justice Frankfurter
announced.

2. It does not expressly touch nor amend the doctrine in Evans vs, Gore, although it indicates that
the Congressional Act in dispute avoided in part the consequences of that case.

Carefully analyzing the three cases (Evans, Miles and O'Malley) and piecing them together, the
logical conclusion may be reached that although Congress may validly declare by law that salaries
of judges appointed thereafter shall be taxed as income (O'Malley vs. Woodrough) it may not tax the
salaries of those judges already in office at the time of such declaration because such taxation would
diminish their salaries (Evans vs. Gore; Miles vs. Graham). In this manner the rationalizing principle
that will harmonize the allegedly discordant decision may be condensed.

By the way, Justice Frankfurter, writing the O'Malley decision, says the Evans precedent met with
disfavor from legal scholarship opinion. Examining the issues of Harvard Law review at the time
of Evans vs. Gore (Frankfurter is a Harvard graduate and professor), we found that such school
publication criticized it. Believing this to be the "inarticulate consideration that may have influenced
the grounds on which the case went off"4, we looked into the criticism, and discovered that it was
predicated on the position that the 16th Amendment empowered Congress "to collect taxes on
incomes from whatever source derived" admitting of no exception. Said the Harvard Law Journal:

In the recent case of Evans vs. Gore the Supreme Court of the United States decided that by
taxing the salary of a federal judge as a part of his income, Congress was in effect reducing
his salary and thus violating Art. III, sec. 1, of the Constitution. Admitting for the present
purpose that such a tax really is a reduction of salary, even so it would seem that the words
of the amendment giving power to tax 'incomes, from whatever source derived', are
sufficiently strong to overrule pro tanto the provisions of Art. III, sec. 1. But, two years ago,
the court had already suggested that the amendment in no way extended the subjects open
to federal taxation. The decision in Evans vs. Gore affirms that view, and virtually strikes
from the amendment the words "from whatever source derived". (Harvard law Review, vol.
34, p. 70)

The Unites States Court's shift of position5 might be attributed to the above detraction which, without
appearing on the surface, led to Frankfurter's sweeping expression about judges being also citizens
liable to income tax. But it must be remembered that undisclosed factor — the 16th Amendment —
has no counterpart in the Philippine legal system. Our Constitution does not repeat it. Wherefore, as
the underlying influence and the unuttered reason has no validity in this jurisdiction, the broad
generality loses much of its force.

Anyhow the O'Malley case declares no more than that Congress may validly enact a law taxing the
salaries of judges appointed after its passage. Here in the Philippines no such law has been
approved.

Besides, it is markworthy that, as Judge Woodrough had qualified after the express legislative
declaration taxing salaries, he could not very well complain. The United States Supreme Court
probably had in mind what in other cases was maintained, namely, that the tax levied on the salary
in effect decreased the emoluments of the office and therefore the judge qualified with such reduced
emoluments.6

The O'Malley ruling does not cover the situation in which judges already in office are made to pay
tax by executive interpretation, without express legislative declaration. That state of affairs is
controlled by the administrative and judicial standards herein-before described in the "second period"
of the Federal Government, namely, the views of Chief Justice Taney and of Attorney-General Hoar
and the constant practice from 1869 to 1938, i.e., when the Income Tax Law merely taxes "income"
in general, it does not include salaries of judges protected from diminution.

In this connection the respondent would make capital of the circumstance that the Act of 1932,
upheld in the O'Malley case, has subsequently been amended by making it applicable even to
judges who took office before1932. This shows, the appellant argues, that Congress interprets the
O'Malley ruling to permit legislative taxation of the salary of judges whether appointed before the tax
or after. The answer to this is that the Federal Supreme Court expressly withheld opinion on that
amendment in the O'Malley case. Which is significant. Anyway, and again, there is here no
congressional directive taxing judges' salaries.

Wherefore, unless and until our Legislature approves an amendment to the Income Tax Law
expressly taxing "that salaries of judges thereafter appointed", the O'Malley case is not relevant. As
in the United States during the second period, we must hold that salaries of judges are not included
in the word "income" taxed by the Income Tax Law. Two paramount circumstances may additionally
be indicated, to wit: First, when the Income Tax Law was first applied to the Philippines 1913,
taxable "income" did not include salaries of judicial officers when these are protected from
diminution. That was the prevailing official belief in the United States, which must be deemed to
have been transplanted here;7 and second, when the Philippine Constitutional Convention approved
(in 1935) the prohibition against diminution off the judges' compensation, the Federal principle was
known that income tax on judicial salaries really impairs them. Evans vs. Gore and Miles vs.
Graham were then outstanding doctrines; and the inference is not illogical that in restraining the
impairment of judicial compensation the Fathers of the Constitution intended to preclude taxation of
the same.8

It seems that prior to the O'Malley decision the Philippine Government did not collect income tax on
salaries of judges. This may be gleaned from General Circular No. 449 of the Department of Finance
dated March 4, 1940, which says in part:

xxx xxx xxx

The question of whether or not the salaries of judges should be taken into account in
computing additional residence taxes is closely linked with the liability of judges to income
tax on their salaries, in fact, whatever resolution is adopted with respect to either of said
taxes be followed with respect to the other. The opinion of the Supreme Court of the United
States in the case of O'Malley v. Woodrough, 59 S. Ct. 838, to which the attention of this
department has been drawn, appears to have enunciated a new doctrine regarding the
liability of judges to income tax upon their salaries. In view of the fact that the question is of
great significance, the matter was taken up in the Council of State, and the Honorable, the
Secretary of Justice was requested to give an opinion on whether or not, having in mind the
said decision of the Supreme Court of the United States in the case of O'Malley v.
Woodrough, there is justification in reversing our present ruling to the effect that judges are
not liable to tax on their salaries. After going over the opinion of the court in the said case,
the Honorable, the Secretary of Justice, stated that although the ruling of the Supreme Court
of the United States is not binding in the Philippines, the doctrine therein enunciated has
resolved the issue of the taxability of judges' salaries into a question of policy. Forthwith, His
Excellency the President decided that the best policy to adopt would be to collect income
and additional residence taxes from the President of the Philippines, the members of the
Judiciary, and the Auditor General, and the undersigned was authorized to act accordingly.

In view of the foregoing, income and additional residence taxes should be levied on the
salaries received by the President of the Philippines, members of the Judiciary, and the
Auditor General during the calendar year 1939 and thereafter. . . . . (Emphasis ours.)

Of course, the Secretary of Justice correctly opined that the O'Malley decision "resolved the issue of
taxability of judges' salaries into a question of policy." But that policy must be enunciated by
Congressional enactment, as was done in the O'Malley case, not by Executive Fiat or interpretation.

This is not proclaiming a general tax immunity for men on the bench. These pay taxes. Upon buying
gasoline, or other commodities, they pay the corresponding duties. Owning real property, they pay
taxes thereon. And on incomes other than their judicial salary, assessments are levied. It is only
when the tax is charged directly on their salary and the effect of the tax is to diminish their official
stipend — that the taxation must be resisted as an infringement of the fundamental charter.

Judges would indeed be hapless guardians of the Constitution if they did not perceive and block
encroachments upon their prerogatives in whatever form. The undiminishable character of judicial
salaries is not a mere privilege of judges — personal and therefore waivable — but a basic limitation
upon legislative or executive action imposed in the public interest. (Evans vs. Gore)

Indeed the exemption of the judicial salary from reduction by taxation is not really a gratuity or
privilege. Let the highest court of Maryland speak:

The exemption of the judicial compensation from reduction is not in any true sense a gratuity,
privilege or exemption. It is essentially and primarily compensation based upon valuable
consideration. The covenant on the part of the government is a guaranty whose fulfillment is
as much as part of the consideration agreed as is the money salary. The undertaking has its
own particular value to the citizens in securing the independence of the judiciary in crises;
and in the establishment of the compensation upon a permanent foundation whereby judicial
preferment may be prudently accepted by those who are qualified by talent, knowledge,
integrity and capacity, but are not possessed of such a private fortune as to make an
assured salary an object of personal concern. On the other hand, the members of the
judiciary relinquish their position at the bar, with all its professional emoluments, sever their
connection with their clients, and dedicate themselves exclusively to the discharge of the
onerous duties of their high office. So, it is irrefutable that they guaranty against a reduction
of salary by the imposition of a tax is not an exemption from taxation in the sense of freedom
from a burden or service to which others are liable. The exemption for a public purpose or a
valid consideration is merely a nominal exemption, since the valid and full consideration or
the public purpose promoted is received in the place of the tax. Theory and Practice of
Taxation (1900), D. A. Wells, p. 541. (Gordy vs. Dennis (Md.) 1939, 5 Atl. Rep. 2d Series, p.
80)

It is hard to see, appellants asserts, how the imposition of the income tax may imperil the
independence of the judicial department. The danger may be demonstrated. Suppose there is power
to tax the salary of judges, and the judiciary incurs the displeasure of the Legislature and the
Executive. In retaliation the income tax law is amended so as to levy a 30 per cent on all salaries of
government officials on the level of judges. This naturally reduces the salary of the judges by 30 per
cent, but they may not grumble because the tax is general on all receiving the same amount of
earning, and affects the Executive and the Legislative branches in equal measure. However, means
are provided thereafter in other laws, for the increase of salaries of the Executive and the Legislative
branches, or their perquisites such as allowances, per diems, quarters, etc. that actually compensate
for the 30 per cent reduction on their salaries. Result: Judges compensation is thereby diminished
during their incumbency thanks to the income tax law. Consequence: Judges must "toe the line" or
else. Second consequence: Some few judges might falter; the great majority will not. But knowing
the frailty of human nature, and this chink in the judicial armor, will the parties losing their cases
against the Executive or the Congress believe that the judicature has not yielded to their pressure?

Respondent asserts in argumentation that by executive order the President has subjected his salary
to the income tax law. In our opinion this shows obviously that, without such voluntary act of the
President, his salary would not be taxable, because of constitutional protection against diminution.
To argue from this executive gesture that the judiciary could, and should act in like manner is to
assume that, in the matter of compensation and power and need of security, the judiciary is on a par
with the Executive. Such assumption certainly ignores the prevailing state of affairs.

The judgment will be affirmed. So ordered.

Moran, C.J., Pablo, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.
Separate Opinions

OZAETA., J., dissenting:

It is indeed embarrassing that this case was initiated by a member of this Court upon which devolves
the duty to decide it finally. The question of whether the salaries of the judges, the members of the
Commission on Elections, the Auditor General, and the President of the Philippines are immune
from taxation, might have been raised by any interested party other than a justice of the Supreme
Court with less embarrassment to the latter.

The question is simple and not difficult of solution. We shall state our opinion as concisely as
possible.

The first income tax law of the Philippines was Act No. 2833, which was approved on March 7, 1919,
to take effect on January 1, 1920. Section 1 (a) of said Act provided:

There shall be levied, assessed, collected, and paid annually upon the entire net income
received in the preceding calendar year from all sources by every individual, a citizen or
resident of the Philippine Islands, a tax of two per centum upon such income. . . . (Emphasis
ours.)

Section 2 (a) of said Act provided:

Subject only to such exemptions and deductions as are hereinafter allowed, the taxable net
income of a person shall include gains, profits, and income derived from salaries, wages or
compensation for personal service of whatever kind and is whatever form paid, or from
professions, vocations, businesses, trade, commerce, sales, or dealings in property, whether
real or personal, growing out of the ownership or use of or interest in real or personal
property, also from interest, rent, dividends, securities, or the transaction of any business
carried on for gain or profit, or gains, profits, and income derived from any source whatever.

That income tax law has been amended several times, specially as to the rates of the tax, but the
above-quoted provisions (except as to the rate) have been preserved intact in the subsequent Acts.
The present income tax law is Title II of the National Internal Revenue Code, Commonwealth Act
No. 466, sections 21, 28 and 29 of which incorporate the texts of the above-quoted provisions of the
original Act in exactly the same language. There can be no dispute whatsoever that judges (who are
individuals) and their salaries (which are income) are as clearly comprehended within the above-
quoted provisions of the law as if they were specifically mentioned therein; and in fact all judges had
been and were paying income tax on their salaries when the Constitution of the Philippines was
discussed and approved by the Constitutional Convention and when it was submitted to the people
for confirmation in the plebiscite of May 14, 1935.

Now, the Constitution provides that the members of the Supreme Court and all judges of inferior
courts "shall receive such compensation as may be fixed by law, which shall not be diminished
during their continuance in office." (Section 9, Article VIII, emphasis ours.)a

The simple question is: In approving the provisions against the diminution of the compensation of
judges and other specified officers during their continuance in office, did the framers of the
Constitution intend to nullify the then existing income tax law insofar as it imposed a tax on the
salaries of said officers ? If they did not, then the income tax law, which has been incorporated in the
present National Internal Revenue Code, remains in force in its entirety and said officers cannot
claim exemption therefrom on their salaries.
Section 2 of Article XVI of the Constitution provides that all laws of the Philippine Islands shall
remain operative, unless inconsistent with this Constitution, until amended, altered, modified. or
repealed by the Congress of the Philippines.

In resolving the question at bar, we must take into consideration the following well-settled rules:

"A constitution shall be held to be prepared and adopted in reference to existing statutory
laws, upon the provisions of which in detail it must depend to be set in practical operation"
(People vs. Potter, 47 N. Y. 375; People vs. Draper, 15 N. Y. 537; Cass vs. Dillon, 2 Ohio St.
607; People vs. N. Y., 25 Wend. (N. Y. 22). (Barry vs. Traux, 3 A. & E. Ann. Cas 191, 193.).

Courts are bound to presume that the people adopting a constitution are familiar with the
previous and existing laws upon the subjects to which its provisions relate, and upon which
they express their judgment and opinion in its adoption (Baltimore vs. State, 15 Md. 376,
480; 74 Am. Dec. 572; State vs. Mace, 5 Md. 337; Bandel vs. Isaac, 13 Md. 202; Manly vs.
State, 7 Md. 135; Hamilton vs. St. Louis County Ct., 15 Mo. 5; People vs. Gies, 25 Mich. 83;
Servis vs. Beatty, 32 Miss. 52; Pope vs. Phifer, 3 Heisk. (Tenn.) 686; People vs. Harding, 53
Mich. 48, 51 Am. Rep. 95; Creve Coeur Lake Ice Co. vs. Tamm, 138 Mo. 385, 39 S. W. Rep.
791). (Idem.)

A constitutional provision must be presumed to have been framed and adopted in the light
and understanding of prior and existing laws and with reference to them. Constitutions, like
statutes, are properly to be expounded in the light of conditions existing at the time of their
adoption, the general spirit of the times, and the prevailing sentiments among the people.
Reference may be made to the historical facts relating to the original or political institutions of
the community or to prior well-known practices and usages. (11 Am. Ju., Constitutional Law,
676-678.)

The salaries provided in the Constitution for the Chief Justice and each associate Justice,
respectively, of the Supreme Court were the same salaries ]which they were receiving at the time
the Constitution was framed and adopted and on which they were paying income tax under the
existing income tax law. It seems clear to us that for them to receive the same salaries, subject to
the same tax, after the adoption of the Constitution as before does not involve any diminution at all.
The fact that the plaintiff was not a member of the Court when the Constitution took effect, makes no
difference. The salaries of justices and judges were subject to income tax when he was appointed in
the early part of 1945. In fact he must have declared and paid income tax on his salary for 19454 —
he claimed exemption only beginning 1946. It seems likewise clear that when the framers of the
Constitution fixed those salaries, they must have taken into consideration that the recipients were
paying income tax thereon. There was no necessity to provide expressly that said salaries shall be
subject to income tax because they knew that already so provided. On the other hand, if exemption
from any tax on said salaries had been intended, it would have been specifically to so provide,
instead of merely saying that the compensation as fixed "shall not be diminished during their
continuance in office."

In the light of the antecedents, the prohibition against diminution cannot be interpreted to include or
refer to general taxation but to a law by which said salaries may be fixed. The sentence in question
reads: "They shall receive such compensation as may be fixed by law, which shall not be diminished
during their continuance in office." The next sentence reads: "Until the Congress shall provide
otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of P16,000,
and each associate Justice, P15,000." It is plain that the Constitution authorizes the Congress to
pass a law fixing another rate of compensation, but that such rate must be higher than that which the
justices receive at he time of its enactment or, if lower, it must not affect those justice already in
office. In other words, Congress may approve a law increasing the salaries of the justices at any
time, but it cannot approve a law decreasing their salaries unless such law is made effective only as
to justices appointed after its approval.

It would be a strained and unreasonable construction of the prohibition against diminution to read
into it an exemption from taxation. There is no justification for the belief or assumption that the
framers of the Constitution intended to exempt the salaries of said officers from taxes. They knew
that it was and is the unavoidable duty of every citizen to bear his aliquot share of the cost of
maintaining the Government; that taxes are the very blood that sustains the life of the Government.
To make all citizens share the burden of taxation equitably, the Constitution expressly provides that
"the rule of taxation shall be uniform." (Section 22 [1], Article VI.) We think it would be a
contravention of this provision to read into the prohibition against diminution of the salaries of the
judges and other specified officers an exemption from taxes on their salaries. How could the rule of
income taxation be uniform if it should not be applied to a group of citizens in the same situation as
other income earners ? It is to us inconceivable that the framers ever intended to relieve certain
officers of the Government from sharing with their fellows citizens the material burden of the
Government — to exempt their salaries from taxes. Moreover, the Constitution itself specifies what
properties are exempt from taxes, namely: "Cemeteries, churches, and parsonages or convents
appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious,
charitable, or educational purposes." (Sec. 22 [3], Article VI.) The omission of the salaries in
question from this enumeration is in itself an eloquent manifestation of intention to continue the
imposition of taxes thereon as provided in the existing law. Inclusio est exclusio alterius.

We have thus far read and construed the pertinent portions of our own Constitution and income tax
law in the light of the antecedent circumstances and of the operative factors which prevailed at the
time our Constitution was framed, independently of the construction now prevailing in the United
States of similar provisions of the federal Constitution in relation to the present federal income tax
law, under which the justices of the Supreme Court, and the federal judges are now, and since the
case of O'Malley vs. Woodrough was decided on May 22, 1939, have been, paying income tax on
their salaries. Were this a majority opinion, we could end here with the consequent reversal of the
judgment appealed from. But ours is a voice in the wilderness, and we may permit ourselves to utter
it with more vehemence and emphasis so that future players on this stage perchance may hear and
heed it. Who knows? The Gospel itself was a voice in the wilderness at the time it was uttered.

We have to comment on Anglo-American precedents since the majority decision from which we
dissent is based on some of them. Indeed, the majority say they "hardly do nothing more than to
borrow therefrom and to compare their conclusions to local conditions." which we shall presently
show did not obtain in the United States at the time the federal and state Constitutions were
adopted. We shall further show that in any event what they now borrow is not usable because it has
long been withdrawn from circulation.

When the American Constitution was framed and adopted, there was no income tax law in the
United States. To this circumstance may be attributed the claim made by some federal judges
headed by Chief Justice Taney, when under the Act of Congress of July 1, 1862, their salaries were
subjected to an income tax, that such tax was a diminution of their salaries and therefore prohibited
by the Constitution. Chief Justice Taney's claim and his protest against the tax were not heeded, but
no federal judge deemed it proper to sue the Collector of Internal Revenue to recover the taxes they
continued to pay under protest for several years. In 1869, the Secretary of the Treasury referred the
question to Atty. General Hoar, and that officer rendered an opinion in substantial accord with Chief
Justice Taney's protest, and also advised that the tax on the President's compensation was likewise
invalid. No judicial pronouncement, however, was made of such invalidity until June 1, 1920, when
the case of Evans vs. Gore (253 U.S. 245, 64 L. ed. 887) was decided upon the constitutionality of
section 213 of the Act of February 24, 1919, which required the computation of incomes for the
purpose of taxation to embrace all gains, profits, income and the like, "including in the case of the
President of the United States, the judges of the Supreme and inferior courts of the United States,
[and others] . . . the compensation received as such." The Supreme Court of the United States,
speaking through Mr. Justice Van Devanter, sustained the suit with the dissent of Justice Holmes
and Brandeis. The doctrine of Evans vs. Gore holding in effect that an income tax on a judge's salary
is a diminution thereof prohibited by the Constitution, was reaffirmed in 1925 in Miles vs. Graham, 69
L. ed 1067.

In 1939, however, the case of O'Malley vs. Woodrough (59 S. Ct. 838, 122 A. L. R. 1379) was
brought up to the test the validity of section 22 of the Revenue Act of June 6, 1932, which included in
the "gross income," on the basis of which taxes were to be paid, the compensation of "judges of
courts of the United States taking office after June 6, 1932." And in that case the Supreme Court of
the United States, with only one dissent (that of Justice Butler), abandoned the doctrine of Evans vs.
Gore and Miles vs. Graham by holding:

To subject them [the judges] to a general tax is merely to recognize that judges are also
citizens, and that their particular function in government does not generate an immunity from
sharing with their fellow citizens the material burden of the government whose Constitution
and laws they are charged with administering.

The decision also says:

To suggest that it [the law in question] makes inroads upon the independence of judges who
took office after Congress had thus charged them with the common duties of citizenship, by
making them bear their aliquot share of the cost of maintaining the Government, is to
trivialize the great historic experience on which the framers based the safeguard of Article 3,
section 1.

Commenting on the above-quoted portions of the latest decision of the Supreme Court of the United
States on the subject, Prof. William Bennett, Munro, in his book, The Government of the United
States, which is used as a text in various universities, says: ". . .

All of which seems to be common sense, for surely the framers of the Constitution from ever
cutting a judge's salary, did not intend to relieve all federal judges from the general
obligations of citizenship. As for the President, he has never raised the issue; every occupant
of the White House since 1913 has paid his income tax without protest. (Pages 371-372.)

We emphasize that the doctrine of Evans vs. Gore and Miles vs. Graham is no longer operative, and
that all United States judges, including those who took office before June 6, 1932, are subject to and
pay income tax on their salaries; for after the submission of O'Malley vs. Woodrough for decision the
Congress of the United States, by section 3 of the Public Salary Act of 1939, amended section 22 (a)
of the Revenue Act of June 6, 1932, so as to make it applicable to "judges of courts of the United
States who took office on or before June 6, 1932." And the validity of that Act, in force for more than
a decade, has not been challenged.

Our colleagues import and transplant here the dead limbs of Evans vs. Gore and Miles vs.
Graham and attempt to revive and nurture them with painstaking analyses and diagnoses that they
had not suffered a fatal blow from O'Malley vs. Woodrough. We refuse to join this heroic attempt
because we believe it is futile.

They disregard the actual damage and minimize it by trying to discover the process by which it was
inflicted and he motivations that led to the infliction. They say that the chief axe-wielder, Justice
Frankfurter, was a Harvard graduate and professor and that the Harvard Law Journal had
criticized Evans vs. Gore; that the dissenters in said case (Holmes and Brandeis) were Harvard men
like Frankfurter; and that they believe this to be the "inarticulate consideration that may have
influenced the grounds on which the case [O'Malley vs. Woodrough] went off." This argument is not
valid, in our humble belief. It was not only the Harvard Law Journal that had criticized Evans vs.
Gore. Justice Frankfurter and his colleagues said that the decision in that case "met with wide and
steadily growing disfavor from legal scholarship and professional opinion," and they cited the
following: Clark, Furthermore Limitations Upon Federal Income Taxation, 30 Yale L. J. 75;
Corwin, Constitutional Law in 1919-1920, 15 Am. Pol. Sci. Rev. 635, 641-644; Fellman, Diminution
of Judicial Salaries, 24 Iowa L. Rev. 89; Lowndes, Taxing Income of Federal Judiciary, 19 Va. L.
Rev. 153; Powell, Constitutional Law in 1919-1920, 19 Mich. L. Rev. 117, 118; Powell, The Sixteenth
Amendment and Income from State Securities, National Income Tax Magazine (July, 1923), 5, 6; 20
Columbia L. Rev. 794; 43 Harvard L. Rev. 318; 20 Ill. L. Rev. 376; 45 Law Quarterly Rev. 291; 7 Va.
L. Rev. 69; 3 University of Chicago L. Rev. 141. Justice Frankfurter and his colleagues also said that
"Evans vs. Gore itself was rejected by most of the courts before whom the matter came after that
decision." Is not the intention to throw Evans vs. Gore into the graveyard of abandoned cases
manifest from all this and from the holding that judges are also citizens, liable to income tax on their
salaries?

The majority say that "unless and until our legislature approves an amendment to the income tax law
expressly taxing 'the salaries of judges thereafter appointed,' the O'Malley case is not relevant." We
have shown that our income tax law taxes the salaries of judges as clearly as if they are specifically
mentioned therein, and that said law took effect long before the adoption of the Constitution and long
before the plaintiff was appointed.

We agree that the purpose of the constitutional provision against diminution of the salaries of judges
during their continuance in office is to safeguard the independence of the Judicial Department. But
we disagree that to subject the salaries of judges to a general income tax law applicable
to all income earners would in any way affect their independence. Our own experience since the
income tax law went effect in 1920 is the best refutation of such assumption.

The majority give an example by which the independence of judges may be imperiled thru the
imposition of a tax on their salaries. They say: Suppose there is power to tax the salaries of judges
and the judiciary incurs the displeasure of the Legislature and the Executive. In retaliation the
income tax law is amended so as to levy a 30 per cent tax on all salaries of government officials on
the level of judges, and by means of another law the salaries of the executive and the legislative
branches are increased to compensate for the 30 per cent reduction of their salaries. To this we
reply that if such a vindictive measure is ever resorted to (which we cannot imagine), we shall be the
first ones to vote to strike it down as a palpable violation of the Constitution. There is no parity
between such hypothetical law and the general income tax law invoked by the defendant in this
case. We believe that an income tax law applicable only against the salaries of judges and not
against those or all other income earners may be successfully assailed as being in contravention not
only of the provision against diminution of the salaries of judges but also of the uniformity of the rule
of taxation as well as of the equal protection clause of the Constitution. So the danger apprehended
by the majority is not real but surely imaginary.

We vote for the reversal of the judgment appealed from the dismissal of plaintiff's complaint.

Paras J., concurs.

Footnotes

* Evans vs. Gore, 253 U. S. 245 and Gordy v. Dennis, 5 Atl. (2d) 69, hold identical view.

1 Evans vs. Gore, 253 U. S. 254, 64 L. ed. 887.

2 157 U. S. 701, Evans vs. Gore, supra.

3 See Evans vs. Gore, supra.

* Evans vs. Gore, supra.

(Note A) The defendant also relies on the dissenting opinion of Mr. Justice Holmes in
Evans vs. Gore, supra, forgetting that subsequently Justice Holmes did not dissent in
Miles vs. Graham, and apparently accepted Evans vs. Gore as authority in writing his
opinion in Gillespie vs. Oklahoma, 257 U. S. 501, 66 Law ed. 338. This remark
applies to Taylor vs. Gehner (1931), No. 45 S. W. (2d) 59, which merely echoes
Holmes dissent.

State vs. Nygaard, 159, Wisc. 396 and the decision of English courts invoked by
appellant, are refuted or distinguished in Gordy vs. Dennis, 5 Alt. (2d) 68, known to
him since he invokes the minority opinion therein.

4Frankfurter, The Administrative Side of Chief Justice Hughes, Harvard Law Review,
November, 1949.

5It was a coincidence that the dissenters (Holmes and Brandeis) were Harvard men like
Frankfurter. It is not unlikely that the Harvard professor and admirer of Justice Holmes
(whose biography he wrote in 1938) noted and unconsciously absorbed the dissent.

6 Baker vs. C.I.R. 149 Fed. (2d) 342.

7It requires a very clear case to justify changing the construction of a constitutional provision
which has been acquiesced in for so long a period as fifty years. (States vs. Frear, 138 Wisc.
536, 120 N. W. 216. See also Hill vs. Tohill, 225 Ill. 384, 80 NE, 253.

8On persuasive weight of contemporary construction of constitutional provision, see

generally Cooley, Constitutional Limitation 98th Ed.) Vol. I pp. 144 et seq.

a The Constitution also provides that the President shall "receive a compensation to be
ascertained by law which shall be neither increased nor diminished during the period for
which he shall have been elected" (section 9, Article VII); that the Auditor General "shall
receive an annual compensation to be fixed by law which shall not be diminished during his
continuance in office" (section 1, Article XI); and that the salaries of the chairman and the
members of the Commission on Elections "shall be neither increased nor diminished during
their term of office" (section 1, Article X).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-6355-56 August 31, 1953

PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees,

vs.
SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant.

Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro for appellant.
Manuel O. Chan for appellees.

MONTEMAYOR, J.:

This is a joint appeal from the decision of the Court of First Instance of Manila declaring section 13 of
Republic Act No. 590 unconstitutional, and ordering the appellant Saturnino David as Collector of
Internal Revenue to re-fund to Justice Pastor M. Endencia the sum of P1,744.45, representing the
income tax collected on his salary as Associate Justice of the Court of Appeals in 1951, and to
Justice Fernando Jugo the amount of P2,345.46, representing the income tax collected on his salary
from January 1,1950 to October 19, 1950, as Presiding Justice of the Court of Appeals, and from
October 20, 1950 to December 31,1950, as Associate Justice of the Supreme Court, without special
pronouncement as to costs.

Because of the similarity of the two cases, involving as they do the same question of law, they were
jointly submitted for determination in the lower court. Judge Higinio B. Macadaeg presiding, in a
rather exhaustive and well considered decision found and held that under the doctrine laid down by
this Court in the case of Perfecto vs. Meer, 85 Phil., 552, the collection of income taxes from the
salaries of Justice Jugo and Justice Endencia was a diminution of their compensation and therefore
was in violation of the Constitution of the Philippines, and so ordered the refund of said taxes.

We see no profit and necessity in again discussing and considering the proposition and the
arguments pro and cons involved in the case of Perfecto vs. Meer, supra, which are raised, brought
up and presented here. In that case, we have held despite the ruling enunciated by the United
States Federal Supreme Court in the case of O 'Malley vs. Woodrought 307 U. S., 277, that taxing
the salary of a judicial officer in the Philippines is a diminution of such salary and so violates the
Constitution. We shall now confine our-selves to a discussion and determination of the remaining
question of whether or not Republic Act No. 590, particularly section 13, can justify and legalize the
collection of income tax on the salary of judicial officers.

According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue,
our decision in the case of Perfecto vs. Meer, supra, was not received favorably by Congress,
because immediately after its promulgation, Congress enacted Republic Act No. 590. To bring home
his point, the Solicitor General reproduced what he considers the pertinent discussion in the Lower
House of House Bill No. 1127 which became Republic Act No. 590.

For purposes of reference, we are reproducing section 9, Article VIII of our Constitution:.
 SEC. 9. The members of the Supreme Court and all judges of inferior courts shall hold office
during good behavior, until they reach the age of seventy years, or become incapacitated to
discharge the duties of their office. They shall receive such compensation as may be fixed by
law, which shall not be diminished during their continuance in office. Until the Congress shall
provide otherwise, the Chief Justice of the Supreme Court shall receive an annual
compensation of sixteen thousand pesos, and each Associate Justice, fifteen thousand
pesos.

As already stated construing and applying the above constitutional provision, we held in the Perfecto
case that judicial officers are exempt from the payment of income tax on their salaries, because the
collection thereof by the Government was a decrease or diminution of their salaries during their
continuance in office, a thing which is expressly prohibited by the Constitution. Thereafter, according
to the Solicitor General, because Congress did not favorably receive the decision in the Perfecto
case, Congress promulgated Republic Act No. 590, if not to counteract the ruling in that decision, at
least now to authorize and legalize the collection of income tax on the salaries of judicial officers. We
quote section 13 of Republic Act No. 590:

SEC 13. No salary wherever received by any public officer of the Republic of the Philippines
shall be considered as exempt from the income tax, payment of which is hereby declared not
to be dimunition of his compensation fixed by the Constitution or by law.

So we have this situation. The Supreme Court in a decision interpreting the Constitution, particularly
section 9, Article VIII, has held that judicial officers are exempt from payment of income tax on their
salaries, because the collection thereof was a diminution of such salaries, specifically prohibited by
the Constitution. Now comes the Legislature and in section 13, Republic Act No. 590, says that "no
salary wherever received by any public officer of the Republic (naturally including a judicial officer)
shall be considered as exempt from the income tax," and proceeds to declare that payment of said
income tax is not a diminution of his compensation. Can the Legislature validly do this? May the
Legislature lawfully declare the collection of income tax on the salary of a public official, specially a
judicial officer, not a decrease of his salary, after the Supreme Court has found and decided
otherwise? To determine this question, we shall have to go back to the fundamental principles
regarding separation of powers.

Under our system of constitutional government, the Legislative department is assigned the power to
make and enact laws. The Executive department is charged with the execution of carrying out of the
provisions of said laws. But the interpretation and application of said laws belong exclusively to the
Judicial department. And this authority to interpret and apply the laws extends to the Constitution.
Before the courts can determine whether a law is constitutional or not, it will have to interpret and
ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in
order to decide whether there is a conflict between the two, because if there is, then the law will
have to give way and has to be declared invalid and unconstitutional.

Defining and interpreting the law is a judicial function and the legislative branch may not limit
or restrict the power granted to the courts by the Constitution. (Bandy vs. Mickelson et al.,
44N. W., 2nd 341, 342.)

When it is clear that a statute transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act unconstitutional because they
cannot shrink from it without violating their oaths of office. This duty of the courts to maintain
the Constitution as the fundamental law of the state is imperative and unceasing; and, as
Chief Justice Marshall said, whenever a statute is in violation of the fundamental law, the
courts must so adjudge and thereby give effect to the Constitution. Any other course would
 lead to the destruction of the Constitution. Since the question as to the constitutionality of a
statute is a judicial matter, the courts will not decline the exercise of jurisdiction upon the
suggestion that action might be taken by political agencies in disregard of the judgment of
the judicial tribunals. (11 Am. Jur., 714-715.)

Under the American system of constitutional government, among the most important
functions in trusted to the judiciary are the interpreting of Constitutions and, as a closely
connected power, the determination of whether laws and acts of the legislature are or are not
contrary to the provisions of the Federal and State Constitutions. (11 Am. Jur., 905.).

By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says that taxing the
salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation
or ascertainment of the meaning of the phrase "which shall not be diminished during their
continuance in office," found in section 9, Article VIII of the Constitution, referring to the salaries of
judicial officers. This act of interpreting the Constitution or any part thereof by the Legislature is an
invasion of the well-defined and established province and jurisdiction of the Judiciary.

The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act
declaratory of what the law was before its passage, so as to give it any binding weight with
the courts. A legislative definition of a word as used in a statute is not conclusive of its
meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function
in defining a term. (11 Am. Jur., 914, emphasis supplied)

The legislature cannot, upon passing a law which violates a constitutional provision, validate
it so as to prevent an attack thereon in the courts, by a declaration that it shall be so
construed as not to violate the constitutional inhibition. (11 Am. Jur., 919, emphasis supplied)

We have already said that the Legislature under our form of government is assigned the task and
the power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative
department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertain its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decisions. Under such a system, a final court determination of a case based on
a judicial interpretation of the law of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the Constitution by the Legislative
department. That would be neither wise nor desirable, besides being clearly violative of the
fundamental, principles of our constitutional system of government, particularly those governing the
separation of powers.

So much for the constitutional aspect of the case. Considering the practical side thereof, we believe
that the collection of income tax on a salary is an actual and evident diminution thereof. Under the
old system where the in-come tax was paid at the end of the year or sometime thereafter, the
decrease may not be so apparent and clear. All that the official who had previously received his full
salary was called upon to do, was to fulfill his obligation and to exercise his privilege of paying his
income tax on his salary. His salary fixed by law was received by him in the amount of said tax
comes from his other sources of income, he may not fully realize the fact that his salary had been
decreased in the amount of said income tax. But under the present system of withholding the income
tax at the source, where the full amount of the income tax corresponding to his salary is computed in
advance and divided into equal portions corresponding to the number of pay-days during the year
and actually deducted from his salary corresponding to each payday, said official actually does not
receive his salary in full, because the income tax is deducted therefrom every payday, that is to say,
twice a month. Let us take the case of Justice Endencia. As Associate Justice of the Court of
Appeals, his salary is fixed at p12,000 a year, that is to say, he should receive P1,000 a month or
P500 every payday, — fifteenth and end of month. In the present case, the amount collected by the
Collector of Internal Revenue on said salary is P1,744.45 for one year. Divided by twelve (months)
we shall have P145.37 a month. And further dividing it by two paydays will bring it down to P72.685,
which is the income tax deducted form the collected on his salary each half month. So, if Justice
Endencia's salary as a judicial officer were not exempt from payment of the income tax, instead of
receiving P500 every payday, he would be actually receiving P427.31 only, and instead of receiving
P12,000 a year, he would be receiving but P10,255.55. Is it not therefor clear that every payday, his
salary is actually decreased by P72.685 and every year is decreased by P1,744.45?

Reading the discussion in the lower House in connection with House Bill No. 1127, which became
Republic Act No. 590, it would seem that one of the main reasons behind the enactment of the law
was the feeling among certain legislators that members of the Supreme Court should not enjoy any
exemption and that as citizens, out of patriotism and love for their country, they should pay income
tax on their salaries. It might be stated in this connection that the exemption is not enjoyed by the
members of the Supreme Court alone but also by all judicial officers including Justices of the Court
of Appeals and judges of inferior courts. The exemption also extends to other constitutional officers,
like the President of the Republic, the Auditor General, the members of the Commission on
Elections, and possibly members of the Board of Tax Appeals, commissioners of the Public Service
Commission, and judges of the Court of Industrial Relations. Compares to the number of all these
officials, that of the Supreme Court Justices is relatively insignificant. There are more than 990 other
judicial officers enjoying the exemption, including 15 Justices of the Court of Appeals, about 107
Judges of First Instance, 38 Municipal Judges and about 830 Justices of the Peace. The reason
behind the exemption in the Constitution, as interpreted by the United States Federal Supreme Court
and this Court, is to preserve the independence of the Judiciary, not only of this High Tribunal but of
the other courts, whose present membership number more than 990 judicial officials.

The exemption was not primarily intended to benefit judicial officers, but was grounded on public
policy. As said by Justice Van Devanter of the United States Supreme Court in the case of Evans vs.
Gore (253 U. S., 245):

The primary purpose of the prohibition against diminution was not to benefit the judges, but,
like the clause in respect of tenure, to attract good and competent men to the bench and to
promote that independence of action and judgment which is essential to the maintenance of
the guaranties, limitations and pervading principles of the Constitution and to the
administration of justice without respect to person and with equal concern for the poor and
the rich. Such being its purpose, it is to be construed, not as a private grant, but as a
limitation imposed in the public interest; in other words, not restrictively, but in accord with its
spirit and the principle on which it proceeds.

Having in mind the limited number of judicial officers in the Philippines enjoying this exemption,
especially when the great bulk thereof are justices of the peace, many of them receiving as low as
P200 a month, and considering further the other exemptions allowed by the income tax law, such as
P3,000 for a married person and P600 for each dependent, the amount of national revenue to be
derived from income tax on the salaries of judicial officers, were if not for the constitutional
exemption, could not be large or substantial. But even if it were otherwise, it should not affect, much
less outweigh the purpose and the considerations that prompted the establishment of the
constitutional exemption. In the same case of Evans vs. Gore, supra, the Federal Supreme Court
declared "that they (fathers of the Constitution) regarded the independence of the judges as far as
greater importance than any revenue that could come from taxing their salaries.
When a judicial officer assumed office, he does not exactly ask for exemption from payment of
income tax on his salary, as a privilege . It is already attached to his office, provided and secured by
the fundamental law, not primarily for his benefit, but based on public interest, to secure and
preserve his independence of judicial thought and action. When we come to the members of the
Supreme Court, this excemption to them is relatively of short duration. Because of the limited
membership in this High Tribunal, eleven, and due to the high standards of experience, practice and
training required, one generally enters its portals and comes to join its membership quite late in life,
on the aver-age, around his sixtieth year, and being required to retire at seventy, assuming that he
does not die or become incapacitated earlier, naturally he is not in a position to receive the benefit of
exemption for long. It is rather to the justices of the peace that the exemption can give more benefit.
They are relatively more numerous, and because of the meager salary they receive, they can less
afford to pay the income tax on it and its diminution by the amount of the income tax if paid would be
real, substantial and onerous.

Considering exemption in the abstract, there is nothing unusual or abhorrent in it, as long as it is
based on public policy or public interest. While all other citizens are subject to arrest when charged
with the commission of a crime, members of the Senate and House of Representatives except in
cases of treason, felony and breach of the peace are exempt from arrest, during their attendance in
the session of the Legislature; and while all other citizens are generally liable for any speech, remark
or statement, oral or written, tending to cause the dishonor, discredit or contempt of a natural or
juridical person or to blacken the memory of one who is dead, Senators and Congressmen in making
such statements during their sessions are extended immunity and exemption.

And as to tax exemption, there are not a few citizens who enjoy this exemption. Persons, natural and
juridical, are exempt from taxes on their lands, buildings and improvements thereon when used
exclusively for educational purposes, even if they derive income therefrom. (Art. VI, Sec. 22 [3].)
Holders of government bonds are exempted from the payment of taxes on the income or interest
they receive therefrom (sec. 29 (b) [4], National Internal Revenue Code as amended by Republic Act
No. 566). Payments or income received by any person residing in the Philippines under the laws of
the United States administered by the United States Veterans Administration are exempt from
taxation. (Republic Act No. 360). Funds received by officers and enlisted men of the Philippine Army
who served in the Armed Forces of the United States, allowances earned by virtue of such services
corresponding to the taxable years 1942 to 1945, inclusive, are exempted from income tax.
(Republic Act No. 210). The payment of wages and allowances of officers and enlisted men of the
Army Forces of the Philippines sent to Korea are also exempted from taxation. (Republic Act No.
35). In other words, for reasons of public policy and public interest, a citizen may justifiably by
constitutional provision or statute be exempted from his ordinary obligation of paying taxes on his
income. Under the same public policy and perhaps for the same it not higher considerations, the
framers of the Constitution deemed it wise and necessary to exempt judicial officers from paying
taxes on their salaries so as not to decrease their compensation, thereby insuring the independence
of the Judiciary.

In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer, supra, to the effect
that the collection of income tax on the salary of a judicial officer is a diminution thereof and so
violates the Constitution. We further hold that the interpretation and application of the Constitution
and of statutes is within the exclusive province and jurisdiction of the Judicial department, and that in
enacting a law, the Legislature may not legally provide therein that it be interpreted in such a way
that it may not violate a Constitutional prohibition, thereby tying the hands of the courts in their task
of later interpreting said statute, specially when the interpretation sought and provided in said statute
runs counter to a previous interpretation already given in a case by the highest court of the land.

In the views of the foregoing considerations, the decision appealed from is hereby affirmed, with no
pronouncement as to costs.
Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., concurring:

Without expressing any opinion on the doctrine laid down by this Court in the case of Perfecto vs.
Meer, G. R. No. L-2314, in view of the part I had in that case as former Solicitor General, I wish
however to state that I concur in the opinion of the majority to the effect that section 13, Republic Act
No. 590, in so far as it provides that taxing of the salary of a judicial officer shall be considered "not
to be a diminution of his compensation fixed by the Constitution or by law", constitutes an invasion of
the province and jurisdiction of the judiciary. In this sense, I am of the opinion that said section is null
and void, it being a transgression of the fundamental principle underlying the separation of powers.

PARAS, C.J., concurring and dissenting:

I dissent for the same reasons stated in the dissenting opinion of Mr. Justice Ozaeta in Perfecto vs.
Meer, 85 Phil., 552, in which I concurred. But I disagree with the majority in ruling that no legislation
may provide that it be held valid although against a provision of the Constitution.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 78780 July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners,

vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT
OF THE PHILIPPINES, respondents.

RESOLUTION

MELENCIO-HERRERA, J.:

Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53,
respectively, of the Regional Trial Court, National Capital Judicial Region, all with stations in Manila,
seek to prohibit and/or perpetually enjoin respondents, the Commissioner of Internal Revenue and
the Financial Officer of the Supreme Court, from making any deduction of withholding taxes from
their salaries.
In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial
officers constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10,
Article VIII of the 1987 Constitution mandating that "(d)uring their continuance in office, their salary
shall not be decreased," even as it is anathema to the Ideal of an independent judiciary envisioned in
and by said Constitution."

It may be pointed out that, early on, the Court had dealt with the matter administratively in response
to representations that the Court direct its Finance Officer to discontinue the withholding of taxes
from salaries of members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed
the Chief Justice's directive as follows:

RE: Question of exemption from income taxation. — The Court REAFFIRMED the Chief
Justice's previous and standing directive to the Fiscal Management and Budget Office of this
Court to continue with the deduction of the withholding taxes from the salaries of the Justices
of the Supreme Court as well as from the salaries of all other members of the judiciary.

That should have resolved the question. However, with the filing of this petition, the Court has
deemed it best to settle the legal issue raised through this judicial pronouncement. As will be shown
hereinafter, the clear intent of the Constitutional Commission was to delete the proposed express
grant of exemption from payment of income tax to members of the Judiciary, so as to "give
substance to equality among the three branches of Government" in the words of Commissioner
Rigos. In the course of the deliberations, it was further expressly made clear, specially with regard to
Commissioner Joaquin F. Bernas' accepted amendment to the amendment of Commissioner Rigos,
that the salaries of members of the Judiciary would be subject to the general income tax applied to
all taxpayers.

This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as
approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured
by the failure to include in the General Provisions a proscription against exemption of any public
officer or employee, including constitutional officers, from payment of income tax, the Court since
then has authorized the continuation of the deduction of the withholding tax from the salaries of the
members of the Supreme Court, as well as from the salaries of all other members of the Judiciary.
The Court hereby makes of record that it had then discarded the ruling in Perfecto vs. Meer and
Endencia vs. David, infra, that declared the salaries of members of the Judiciary exempt from
payment of the income tax and considered such payment as a diminution of their salaries during
their continuance in office. The Court hereby reiterates that the salaries of Justices and Judges are
properly subject to a general income tax law applicable to all income earners and that the payment
of such income tax by Justices and Judges does not fall within the constitutional protection against
decrease of their salaries during their continuance in office.

A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided:

... (The members of the Supreme Court and all judges of inferior courts) shall receive such
compensation as may be fixed by law, which shall not be diminished during their continuance
in office ... 1 (Emphasis supplied).

Under the 1973 Constitution, the same provision read:

The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of
judges of inferior courts shall be fixed by law, which shall not be decreased during their
continuance in office. ... 2 (Emphasis ours).
And in respect of income tax exemption, another provision in the same 1973 Constitution specifically
stipulated:

No salary or any form of emolument of any public officer or employee, including

constitutional officers, shall be exempt from payment of income tax. 3

The provision in the 1987 Constitution, which petitioners rely on, reads:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of
judges of lower courts shall be fixed by law. During their continuance in office, their salary
shall not be decreased. 4(Emphasis supplied).

The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973
Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the
original concept of "non-diminution "of salaries of judicial officers.

The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate
such contention.

The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:

Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court
and of judges of the lower courts shall be fixed by law. During their continuance in office,
their salary shall not be diminished nor subjected to income tax. Until the National Assembly
shall provide otherwise, the Chief Justice shall receive an annual salary of _____________
and each Associate Justice ______________ pesos. 5(Emphasis ours)

During the debates on the draft Article (Committee Report No. 18), two Commissioners presented
their objections to the provision on tax exemption, thus:

MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this
not violate the principle of the uniformity of taxation and the principle of equal protection of
the law? After all, tax is levied not on the salary but on the combined income, such that when
the judge receives a salary and it is comingled with the other income, we tax the income, not
the salary. Why do we have to give special privileges to the salary of justices?

MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or

decrease of their salary during their term. This is an indirect way of decreasing their salary
and affecting the independence of the judges.

MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the
special privilege on taxation might, in effect, be a violation of the principle of uniformity in
taxation and the equal protection clause. 6

xxx xxx xxx

MR. OPLE. x x x

Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto
Concepcion, for whom we have the highest respect, to surround the Supreme Court and the
judicial system as a whole with the whole armor of defense against the executive and
 legislative invasion of their independence. But in so doing, some of the citizens outside,
especially the humble government employees, might say that in trying to erect a bastion of
justice, we might end up with the fortress of privileges, an island of extra territoriality under
the Republic of the Philippines, because a good number of powers and rights accorded to
the Judiciary here may not be enjoyed in the remotest degree by other employees of the
government.

An example is the exception from income tax, which is a kind of economic immunity, which
is, of course, denied to the entire executive department and the legislative. 7

And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A.
Rigos proposed that the term "diminished" be changed to "decreased" and that the words "nor
subjected to income tax" be deleted so as to "give substance to equality among the three branches
in the government.

Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the
original draft and referred to the ruling of this Court in Perfecto vs. Meer 8 that "the independence of
the judges is of far greater importance than any revenue that could come from taxing their salaries."
Commissioner Rigos then moved that the matter be put to a vote. Commissioner Joaquin G. Bernas
stood up "in support of an amendment to the amendment with the request for a modification of the
amendment," as follows:

FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is
not enough to drop the phrase "shall not be subjected to income tax," because if that is all
that the Gentleman will do, then he will just fall back on the decision in Perfecto vs. Meer and
in Dencia vs. David [should be Endencia and Jugo vs. David, etc., 93 Phil. 696[ which
excludes them from income tax, but rather I would propose that the statement will read:
"During their continuance in office, their salary shall not be diminished BUT MAY BE
SUBJECT TO GENERAL INCOME TAX."IN support of this position, I would say that the
argument seems to be that the justice and judges should not be subjected to income tax
because they already gave up the income from their practice. That is true also of Cabinet
members and all other employees. And I know right now, for instance, there are many
people who have accepted employment in the government involving a reduction of income
and yet are still subject to income tax. So, they are not the only citizens whose income is
reduced by accepting service in government.

Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico
F. de los Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner
Bernas announced:

During the suspension, we came to an understanding with the original proponent,

Commissioner Rigos, that his amendment on page 6,. line 4 would read: "During their
continuance in office, their salary shall not be DECREASED."But this is on the understanding
that there will be a provision in the Constitution similar to Section 6 of Article XV, the General
Provisions of the 1973 Constitution, which says:

No salary or any form of emolument of any public officer or employee, including

constitutional officers, shall be exempt from payment of income tax.

So, we put a period (.) after "DECREASED" on the understanding that the salary of justices
is subject to tax.
When queried about the specific Article in the General Provisions on non-exemption from tax of
salaries of public officers, Commissioner Bernas replied:

FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions.
But at any rate, when we put a period (.) after "DECREASED," it is on the understanding that
the doctrine in Perfecto vs. Meer and Dencia vs. David will not apply anymore.

The amendment to the original draft, as discussed and understood, was finally approved without
objection.

THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will
be a provision under the Article on General Provisions. Could Commissioner Rosario Braid
kindly take note that the salaries of officials of the government including constitutional
officers shall not be exempt from income tax? The amendment proposed herein and
accepted by the Committee now reads as follows: "During their continuance in office, their
salary shall not be DECREASED"; and the phrase "nor subjected to income tax" is deleted.9

The debates, interpellations and opinions expressed regarding the constitutional provision in
question until it was finally approved by the Commission disclosed that the true intent of the framers
of the 1987 Constitution, in adopting it, was to make the salaries of members of the Judiciary
taxable. The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people adopting
it should be given effect.10 The primary task in constitutional construction is to ascertain and
thereafter assure the realization of the purpose of the framers and of the people in the adoption of
the Constitution.11it may also be safely assumed that the people in ratifying the Constitution were
guided mainly by the explanation offered by the framers.12 1avvphi1

Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again
reproduced hereunder:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of
judges of lower courts shall be fixed by law. During their continuance in office, their salary
shall not be decreased. (Emphasis supplied).

it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation
of Justices and Judges but such rate must be higher than that which they are receiving at the time of
enactment, or if lower, it would be applicable only to those appointed after its approval. It would be a
strained construction to read into the provision an exemption from taxation in the light of the
discussion in the Constitutional Commission.

With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income
tax upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs.
Meer,13 as affirmed in Endencia vs. David 14 must be declared discarded. The framers of the
fundamental law, as the alter ego of the people, have expressed in clear and unmistakable terms the
meaning and import of Section 10, Article VIII, of the 1987 Constitution that they have adopted

Stated otherwise, we accord due respect to the intent of the people, through the discussions and
deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of the
cost of maintaining the government and should share the burden of general income taxation
equitably.

WHEREFORE, the instant petition for Prohibition is hereby dismissed.

Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.

Footnotes

1
Section 9,Articie VIII.

2
Section 10, Article X.

3
Section 6, Article XV, General Provisions.

4
Section 10, Article VIII.

5
Record of the Constitutional Commission, Vol. I, p. 433.

6
Record of the Constitutional Commission, p. 460.

7
Ibid., at page 467,

8
85 Phil. 552 (1950).

9
Record of the Constitutional Commission, Vol. 1, p. 506.

10
Gold Creek Mining Co. vs. Rodriguez, 66 Phil. 259 (1938).

J.M. Tuason & Co., Inc. vs. Land Tenure Administration, No. L-21064, February 18, 1970,
11

31 SCRA 413.

12
Tanada, Fernando, Constitution of the Philippines, Fourth Ed., Vol. 1, p. 21.

13
85 Phil. 552 (1950).

14
93 Phil. 696 (1953).
 EN BANC

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 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:

(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 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 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 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. Yaranon4 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
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 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 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 willfully, 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 PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR Aseries 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 connection 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 Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN
DOES & JANE DOES; (italic supplied).

(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 STOCK, 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 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."

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.

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.

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, 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 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.

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 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.12It 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

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 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
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 Actfor 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, 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).

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 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.

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 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.

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:
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 -

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 -

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 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.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say 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. Echegaray38 to the
archives of jurisprudential history. The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the State, and becomes, by necessary effect,
assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high
places which have shaken its very foundation. The anatomy of graft and corruption has become
more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more
ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to
fight the 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. The Plunder Law, indeed, is a
living testament to the will of the legislature to ultimately eradicate this scourge and thus secure
society against the avarice and other venalities in public office.

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 interest and passion generated by petitioner's ignominious fall
from the highest office, and his eventual prosecution and trial under a virginal statute. This
continuing saga has driven a wedge of dissension among our people that may linger for a long time.
Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall
we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.

SO ORDERED.

Buena, and De Leon, Jr., JJ., concur.

Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

Footnotes
1
Approved 12 July 1991 and took effect 8 October 1991.

2
Approved 13 December 1993 and took effect 31 December 1993.

3
Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644.

4
G.R. No. 87001, 4 December 1989, 179 SCRA 828.

5
Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).

6
82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768.

7
Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430,
448.

8
PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213
SCRA 16, 26.

9
Resolution of 9 July 2001.

10
See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.

11
Ibid.

12
State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.

Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-
13

Malate Hotel and Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).

NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker 364
14

U.S. 479, 5 L. Ed. 2d 231 (1960).

Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation
15

marks omitted).

United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also
16

People v. De la Piedra, G.R. No. 121777, 24 January 2001.

17
413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).

18
United States v. Salerno, supra.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.
19

Ed. 2d 362, 369 (1982).

United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic
20

case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193
(1912).

21
G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).
22
Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L.
Rev. 1321 (2000) arguing that, in an important sense, as applied challenges are the basic
building blocks of constitutional adjudication and that determinations that statutes are facially
invalid properly occur only as logical outgrowths of ruling on whether statutes may be applied
to particular litigants on particular facts.

23
Constitution, 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 after full opportunity of argument by the parties, and limited further to be
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities."

401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362
24

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 (1989).

Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the
25

Arts v. Finley, 524 U.S. 569, 580 (1998).

FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary
26

of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J.,
Separate Opinion).

United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6
27

(1963).

28
G.R. No. 57841, 30 July 1982, 115 SCRA 793.

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 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).

32
TSN, 18 September 2001, pp. 115-121.

33
4 Record of the Senate 1316, 5 June 1989.

34
Ibid.

35
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).

36
267 SCRA 682, 721-2 (1997) (emphasis added).
 37
Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).

38
G.R. No. 117472, 7 February 1997, 267 SCRA 682.

DISSENTING OPINION

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.

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 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 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 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 constitutionalist,
aptly puts it--

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).
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

(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.
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.

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 SECRIMES 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 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 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," "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

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;

(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 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

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 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 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 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 suggested46 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 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--

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."

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 law55 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, 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:

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.

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.

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

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.)

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

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.

A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada
would imply that initially, combination was intended to mean "two or more means,"70 i.e., "number
one and two or number one and something else x x x,"71 "two of the enumerated means not twice of
one enumeration,"72 "two different acts."73Series would refer to "a repetition of the same
act."74 However, the distinction was again lost as can be gleaned from the following:
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.

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 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"?

THE CHAIRMAN (REP. GARCIA P) 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 P.) Yes.

REP. ISIDRO. When we say "combination", two different?

THE CHAIRMAN (REP. GARCIA P.) Yes.

THE CHAIRMAN (SEN. TAÑADA) Two different.

REP. ISIDRO. Two different acts.

THE CHAIRMAN (REP. GARCIA P.) For example, ha…

REP. ISIDRO. Now a series, meaning, repetition…

THE CHAIRMAN (SEN. TAÑADA) Yes.

REP. ISIDRO. With that…

THE CHAIRMAN (REP. GARCIA P.) Thank you.

THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the acts mentioned in
paragraphs 1, 3, 4, 5 of Section 2 (d), or… 1 (d) rather, or a combination of any of the acts
mentioned in paragraph 1 alone, or paragraph 2 alone or paragraph 3 or paragraph 4.

THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which one? Series?

THE CHAIRMAN (SEN. TAÑADA) Series or combination.

REP. ISIDRO. Which one, combination or series or series or combination?

THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition, doon
sa portion ng… Saan iyon? As mentioned, as described…

THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…

THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.

THE CHAIRMAN (REP. GARCIA P.) Okay?

REP. ISIDRO. Very good.

THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.

THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.

The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)

The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to
render precise the definition of the terms. Phrases were uttered but were left unfinished. The
examples cited were not very definite. Unfortunately, the deliberations were apparently adjourned
without the Committee members themselves being clear on the concept of series and combination.

Moreover, if "combination" as used in the law simply refers to the amassing, accumulation and
acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of the means
enumerated in 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 acts which, if taken separately, i.e.,
not considered as part of the combination or series, would ordinarily result in the imposition of
correctional penalties only. If such interpretation would be adopted, the 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 offense. Petitioner’s
examples illustrate this absurdity:

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)

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 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;79and 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 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,82the 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.

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 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.

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?

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.103Relying 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

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 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 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 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 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.

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 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 secrimes. 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 crimes125 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)

(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 advocate129 and held to require knowledge of illegal
advocacy.130 And in another case,131 and ordinance making 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.

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 Law135 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 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

1Joaquin 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).

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 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.

14
Id., at 27-35; Id.,. at 76-83.

15 Comment, pp. 11-13; Memorandum for Respondents, pp. 30-32.

16 Ibid.; Id., at 49-50.

17 Id., at 13-25; Id., at 58-59.

18 Id., at 28-33; Id.., at 70-77.

19
Id., at 33-34.

20 Comment, pp. 37-42; Memorandum for Respondents, pp. 82-84.

21 Reply to Comment, p. 12.

22 Id., at 14-15.

23 TSN, Hearing on oral arguments, September 18, 2001, pp. 2-3.

24Tan vs. People, 290 SCRA 117 (1998); see also Padilla vs. Court of Appeals, 269 SCRA
402 (1997).

25 Morfe vs. Mutuc, 22 SCRA 424 (1968).

26 State v. Vogel, 467 N.W.2d 86 (1991).

27 See Id.

28 ART. III, Sections 1, 12 and 14.

In Ermita-Malate Hotel and Motel Operators Association, Inc. vs. City Mayor of
Manila (20 SCRA 849 [1967]), the Court expounded on the concept of due process
as follows:

x x x What then is the standard of due process which must exist both as a procedural
and a substantive requisite to free the challenged ordinance, or any governmental
action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of
justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy
the due process requirement, official action, to paraphrase Cardozo, must not outrun
the bounds of reason and result in sheer oppression. Due process is thus hostile to
any official action marred by lack of reasonableness. Correctly it has been identified
as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It
exacts fealty 'to those strivings for justice' and judges the act of officialdom of
whatever branch 'in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought.' It is not a narrow or
'technical conception with fixed content unrelated to time, place and circumstances,'
decisions based on such a clause requiring a 'close and perceptive inquiry into
fundamental principles of our society." Questions of due process are not to be
treated narrowly or pedantically in slavery to form or phrases (at pp. 860-861).

29 ART. III, Section 14.

30 People v. Nazario, 165 SCRA 186 (1988).

31 347 U.S. 612 (1954).

32 Id., at 617.

33 Kolender v. Lawson, 461 U.S. 352 (1983).

34
Ibid.

35 See Grayned v. City of Rockford, 408 U.S. 104 (1972).

36 Ibid.

37 Kolender, supra.

38 Ibid.

39 Section 2.

40 See FCC v. American Broadcasting Co., 347 US 284 (1954).

41 See Dissenting Opinion of Justice Vicente V. Mendoza, pp. 10-12.

42RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE

DOCTRINE, American Constitutional Law (2nd) (1998), p. 1033 citing Lanzetta v. New
Jersey, 306 U.S. 451 (1939). See also Springfield Armory, Inc. v City of Columbus, 29 F.3d
250, 1994 FED App 239P (6th Cir. 1994); Connally v. General Construction Company, 269
U.S. 385 (1926); Lambert v. California, 355 U.S. 225 1957); Kolender v. Lawson, supra.

43THE OVERBREADTH DOCTRINE, Treatise on Constitutional Law – Substance and

Procedure, Vol. IV (1992), pp. 25-31; 36-37.

44 See Note 42.

45 Springfield Armory, Inc. v City of Columbus, supra.

46 See Concurring Opinion of Justice Vicente V. Mendoza, pp. 10-12.

47RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE

DOCTRINE, American Constitutional Law (2nd) [1998], p. 1033 citing Lanzetta v. New
Jersey, 306 U.S. 451 [1939]. See also Springfield Armory, Inc. v City of Columbus, 29 F.3d
250, 1994 FED App 239P [6th Cir. 1994]; Connally v. General Construction Company, 269
U.S. 385 [1926]; Lambert v. California, 355 U.S. 225 [1957]; Kolender v. Lawson, 461 U.S.
352 [1953].

48 413 U.S. 601 [1973].

VAGUENESS AND OVERBREADTH, AN OVERVIEW, Lockhart et al. Constitutional Law,

49

Cases-Comments-Questions [6th Ed, 1986], p. 740.

50 Springfield v. Oklahoma, supra; Kolender v. Lawson, supra.

51 Supra.

52 Supra.

53 At p. 253.
54
See Concurring Opinion of Justice Mendoza, p. 5.

55 See Decision, p. 7.

56The transcript of Stenographic Notes of the Hearing in Criminal Case No. 26561 on June
13, 2001, p. 16 reads:

PJ Garchitorena:

xxx

But you see, I will provoke you. Forgive us for provoking you, but we ourselves have
been quarrelling with each other 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 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.

62RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND

COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7,
1991, pp. 39-40.

63 Decision, p. 14.

64 RECORDS OF THE SENATE, June 6, 1989, pp. 92-93.

65 RECORDS OF THE SENATE, June 5, 1989, pp. 34.

66
Reply to Comment, p. 33.

67 Ibid.

68 Id.

69 Id.

70RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND

COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7,
1991, p. 40.

71 Ibid.

72 Id.

73 Id.

74 Id.

75 Id., at 40-41.

76 Id., at 42-43.
77
Article III of the Constitution provides:

Sec. 1. 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.

xxx

Sec. 19(1) Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion
perpetua. (Emphasis supplied.)

78 Reply to Comment, pp.16-18; Memorandum for Petitioner, pp. 62-63.

79 Article 335, Revised Penal Code.

80 Article 249, Revised Penal Code.

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

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

83 Id., at Section 6.

84 Id., at Section 3.

85 Id., at Section 5.

86 Id., at Section 7.

87 Id., at Section 14.

88 See Article XIV, Constitution..

89 Comment, p. 13.

90 Decision, pp. 14-15.

91 Alpha Investigation and Security Agency, 272 SCRA 653 (1997).

92 11 Oxford English Dictionary 357 (2d ed 1989).

93 Webster’s Third New International Dictionary, p. 2029 (1976).

94 H.J. Inc., et al. v. Northwestern Bell Telephone Co., et al., 492 US 229 (1989)

95 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

96 Supra.
97
Id., at 236.

98 Justice Scalia was joined by Chief Justice Rehnquist, Justices O’Connor and Kennedy.

99Atkinson, Jeff. "RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," § §

1961-68: Broadest of the Federal Criminal Statutes, 69 JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY 1 (1978).

100 18 U.S.C. § 1962 (1970):

(a) It shall be unlawful for any person who has received any income derived, directly
or indirectly, from a pattern of racketeering activity or through collection of an
unlawful debt in which such person has participated as a principal within the meaning
of section 2, title 18, United States Code, to use or invest, directly or indirectly, any
part of such income, or the proceeds of such income, in acquisition of any interest in,
or the establishment or operation of, any enterprise which is engaged in, or the
activities of which effect, interstate or foreign commerce. A purchase of securities on
the open market for purposes of investment, and without the intention of controlling
or participating in the control of the issuer, or of assisting another to do so, shall not
be unlawful under this subsection if the securities of the issuer held by the purchaser,
the members of his immediate family, and his or their accomplices in any pattern or
racketeering activity or the collection of an unlawful debt after such purchase do not
amount in the aggregate to one percent of the outstanding securities of any one
class, an do not confer, either in law or in fact, the power to elect one or more
directors of the issuer.

(b) It shall be unlawful for any person through a pattern of racketeering activity or
through collection of an unlawful debt to acquire or maintain, directly or indirectly, any
interest in or control of any enterprise which is engaged in, or the activities of which
affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of
subsections (a), (b), or (c) of this section.

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.

108The 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, 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".

109See United States v. Masters, 924 F.2d 1362 (7th Cir.), cert. denied 11 S. Ct. 2019
(1991); United Statesv. 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.

110Bauerschmidt, 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).

111Moran, 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 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 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.

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:

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.

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
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).

Memorandum for Petitioner, p. 47; TSN, Oral Arguments, September 18, 2001, see pp.
116

224-233.

117 Memorandum for Petitioner, p. 47.

118 See Kolender v. Lawson, supra

119 18 U.S.C. § 1961 (5). .

120 See U.S. v. Batchelder, 442 US 114, 60 L Ed 2d 755, 99 S Ct 2198 (1979).

121 Through Justice Brennan.

122
Supra.

123 Decision, pp. 21-22.

124 Today, July 1, 2001 issue.

125In People vs. Echegaray (267 SCRA 682) the word "heinous" was traced to the early
Spartans’ word "haineus" which means hateful and abominable. In turn, the word came from
the Greek prefix "haton" indicating acts so hateful or shockingly evil. (at 715)

126WHEREAS, the crimes punishable by death under this Act are heinous for being grievous,
odious and hateful offenses and which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered society.

127 Reyes, Luis B. The Revised Penal Code, Book One (13th ed.), p. 56.

128 Petitioner’s Memorandum, p. 81.

129 Dennis v. U.S., 314 U.S. 494 (1951).

130 Scales v. U.S., 203 (1961).

131 Smith v. California, 361 U.S. 147 (1959).

132 342 U.S. 246 (1952).

133 Regalado, Florenz, Criminal Law Conspectus (2001 ed.), 161-162.

134 Atty. Rene A.V. Saguisag.

135 Senate Bill No. 733.

136 Tañada and Macapagal vs. Cuenco, 103 Phil. 1093.

137 Commercial National Bank v. Rowe, 666 So. 2d 1312 (1996).

138 65 Phil. 56 (1937).

139 Id., at 90.

140 See Explanatory Note, Senate Bill No. 733, Records of the Senate, June 1, 1989, pp. 1-2.

141 See Papachristou v. Jacksonville, 405 U.S. 156 (1972).

One of the reliefs sought in the Prayer contained in the Petition (at p. 37) and in
142

Petitioner’s Memorandum (at p. 84) is for the quashal of the Information in Criminal case No.
26558 for being null and void.
 Double jeopardy attaches only when all of the following circumstances are present:
(1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4)
when a valid plea has been entered; and (5) when the accused was acquitted or
convicted or the case was dismissed or otherwise terminated without the express
consent of the accused (Tecson vs. Sandiganbayan, 318 SCRA 80, 89 [1999]).

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

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, 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.

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 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 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?

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:

"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) 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.

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 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?

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 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 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 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 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 creates27 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 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 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 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

1As 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.

6 Section 2 of R.A. No. 7080.

7 It is an elementary principle of criminal jurisprudence, a principle firmly embedded in the

organic law of every free state and vindicated by statutory guarantee as well as by
innumerable judicial decisions, that every criminal, however hideous his alleged crime, or
however, debauched and fiendish his character, may require that the elements of that crime
shall be clearly and indisputably defined by law, and that his commission of and relationship
to the alleged offense shall be established by legal evidence delivered in his presence. (Rice,
The Law of Evidence on Evidence, Vol. 3, p. 421.

829 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.
9
In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the crime must be the product of
a free, intelligent, and intentional act.

10 U.S. vs. Go Chico, 14 Phil. 134 (1909-1910).

11 Webster, Third New International Dictionary, Unabridged, 1993, p. 1657.

12 Harris and Wilshere’s Criminal Law, Seventeenth Division, 1943, pp.513-514.

13 Burgett v. Texas, 389 US 109, 19 L Ed 2d 319, 88 Ct 258; 29 Am Jur 6.

14 Records of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1314.

15 Records of the Senate, Vol. IV, No. 140, p. 1316.

16 Records of the Senate, June 16, 1989, Vol. IV, No. 141, p. 1403.

17See Records Joint Conference Committee Meeting, May 7, 1991, p. 12. Representative
Pablo Garcia, Chairman of the House of Representatives Committee on Justice, observed
that R.A. No. 7080 was patterned after the RICO law.

18 Rotella v. Wood, United States Supreme Court, February 23, 2000.

19 Toussie vs. United States, 397 U.S. 112, 115 (1970).

20 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).

21 492 U.S. 229, 109 S. Ct. 2893, 106 L Ed. 2d 195 (1989).

22 The People of the State of New York v. Capaldo et al., 151 Misc. 2d 114 (1991).

23 21 Am Jur §349, p.399.

24 22 C.J.S. §24 (2) p. 62; Pierce v. United States 314 US 306; 86 L. Ed 226.

"The constitutional vice in a vague or indefinite statute is the injustice to accused in

placing him on trial for an offense as to the nature of which he is given no fair notice.
(American Communications Associations C.I.O. v. Douds, N.Y. 70 S. Ct. 674, 339
U.S. 382, 94 L. Ed 1391) In determining whether a statute meets the requirement of
certainty, the test is whether the language conveys sufficiently definite warning as to
the proscribe conduct when measured by a common understanding and practices.
Penal statutes affecting public officers and employees and public funds or property
will be held invalid where the 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 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 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

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).

Tarsia v. Nick’s Laundry & Linen Supply Co., 399 P. 2d 28, 29, 239 Or. 562; Words and
32

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.

3722 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.

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.

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. 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 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 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.12Under 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 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 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

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 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 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:

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 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 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

1 Constitution, Article III, Sections 1, 12 & 14.

2 Constitution, Article III, Section 14.

3 People v. Nazario, 165 SCRA 186, 195 [1988].

4 Connally v. General Construction Co., 269 U.S. 385 [1926].

5 Yu Cong Eng v. Trinidad, 271 U.S. 500 [1926].

6 People v. Nazario, supra; Scull v. Commonwealth, 359 U.S. 344, 353.

7 Musser v. Utah, 333 U.S. 95; 92 L Ed. 562.

8 U.S. v. Brewer, 139 U.S. 278, 35 L Ed. 190, 193.

9
National Association for the Advancement of Colored People (NAACP) v. Alabama, 377
U.S. 288.

10 U.S. v. Petrillo, 332 U.S. 1; U.S. v. Spector, 343 U.S. 169; U.S. v. Darby, 312 U.S. 100.

11 Republic Act No. 7080, Section 1 (d).

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.

"If the gift was accepted by the officer in consideration of the execution of an act
which does not constitute a crime, and the officer executed said act, he shall suffer
the same penalty provided in the preceding paragraph; and if said act shall not have
been accomplished, the officer shall suffer the penalties of prision correccional in its
medium period and a fine of not less than twice the value of such gift.

"If the object for which the gift was received or promised was to make the public
officer refrain from doing something which it was his official duty to do, he shall suffer
the penalties of prision correccionalin its maximum period to prision mayor in its
minimum period and a fine of not less than three times the value of such gift.

"In addition to the penalties provided in the preceding paragraphs, the culprit shall
suffer the penalty of special temporary disqualification.

"The provisions contained in the preceding paragraphs shall be made applicable to

assessors, arbitrators, appraisal and claim commissioners, experts or any other
persons performing public duties."

14"The penalties of prision correccional in its medium and maximum periods, suspension and
public censure shall be imposed upon any public officer who shall accept gifts offered to him
by reason of his office."

15 U.S. v. Go Chico, 14 Phil. 134 [1909].

16 342 U.S. 246.

17 Rochin v. California, 324 U.S. 165, 168.

18Republic 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.

21See Keyshian v. Board of Regents of the University of the State of New York, 385 U.S.
589; and Shelton v. Tucker, 364 U.S. 479.

22 Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310.

23 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

24 Ibid., p. 453.

25 Nebbia v. New York, 291 U.S. 502.

26Musser v. Utah, supra; Giaccio v. Pennsylvania, 382 U.S. 399; United States v.
Brewer, supra.

The Lawphil Project - Arellano Law Foundation

MENDOZA, J., concurring in the judgment:

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.1He 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.

In its resolution dated July 9, 2001, the Sandiganbayan denied petitioner’s motion, along with those
filed by his co-accused, Edward Serapio, and his son, Jose "Jinggoy" Estrada. Petitioner brought this
petition for certiorari and prohibition under Rule 65 to set aside the Sandiganbayan’s resolution
principally on the ground that the Anti-Plunder Law is void for being vague and overbroad. We gave
due course to the petition and required respondents to file comments and later heard the parties in
oral arguments on September 18, 2001 and on their memoranda filed on September 28, 2001 to
consider the constitutional claims of petitioner.

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:

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 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 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 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
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.
 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.

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."

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

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 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 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) 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 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;

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"

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:

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 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.

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" 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 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 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:

[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 sethe 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. 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

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, 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.

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)

b. One act of prohibited transaction (penalized under Art. 215 of the revised Penal Code with prision
correccionalin 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 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.

______________________

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.

For these reasons, I respectfully submit that R.A. No. 7080 is valid and that, therefore, the petition
should be dismissed.

Footnotes

1See Estrada v. Desierto, G.R. No. 146710, March 2, 2001; Estrada v. Macapagal-Arroyo,
G.R. No. 146715, March 2, 2001.

2 CONST., ART., Art. II, §27.

3United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6
(1963) (internal quotation marks omitted).

4 Memorandum for the Petitioner, pp. 4-7.

5 Id. at 11-66.

6 293 SCRA 161, 166 (1998).

7 304 U.S. 144, 152, 82 L.Ed. 1234, 1241 (1938) (cases cited omitted).

8 Memorandum for the Petitioner, p. 5.

9 20 SCRA 849, 865 (1967).

10 Geoffrey R. Stone, Content-Neutral Restrictions, 54 Univ. of Chi. L. Rev. 46, 50-53 (1987).

Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-
11

Malate Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).

12NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1958); Shelton v. Tucker,
364 U.S. 479, 5 L.Ed.2d 231 (1960).

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

marks omitted).

14 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. 24, 2001.

15 413 U.S. 601, 612-613, 37 L.Ed. 2d 830, 840-841 (1973).

16 United States v. Salerno, supra.

17
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71
L.Ed.2d 362, 369 (1982).

18United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960). The paradigmatic
case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193
(1912).

19 K. Sullivan & G. Gunther, Constitutional Law 1299 (14th ed., 2001).

20Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv.
L. Rev. 1321 (2000), arguing that, in an important sense, as applied challenges are the basic
building blocks of constitutional adjudication and that determinations that statutes are facially
invalid properly occur only as logical outgrowths of rulings on whether statutes may be
applied to particular litigants on particular facts.

21Const., 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 after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis motapresented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities."

22401 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); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469,
106 L.Ed.2d 388 (1989).

23Broadrick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998).

FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 (1990); Cruz v. Secretary of
24

Environment and Natural Resources, G.R. No. 135385, Dec. 6, 2000 (Mendoza, J., Separate
Opinion).

25United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6
(1963).

269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators
26

Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).

27 Memorandum for the Petitioner, pp. 11-66.

28 4 Record of the Senate 1310, June 5, 1989.

29 4 Record of the Senate 1339, June 6, 1989.

30 Webster’s Third New International Dictionary 2073 (1993).

31 Deliberations of the Joint Conference Committee on Justice held on May 7, 1991.

32Deliberations of the Conference Committee on Constitutional Amendments and Revision

of Laws held on Nov. 15, 1988.
 33
80 Phil. 71 (1948).

34 People v. Hernandez, 99 Phil. 515 (1956); People v. Geronimo, 100 Phil. 90 (1956).

269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators
35

Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).

36 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897).

37 Memorandum for the Petitioner, p. 32.

38 See Memorandum for the Respondents, pp. 79-88.

39 4 Record of the Senate 1316, June 5, 1989.

40 Id.

41 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).

42 267 SCRA 682, 721-2 (1997) (emphasis added).

43 Black’s Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).

44 Memorandum for the Petitioner, pp. 62-63 (emphasis in the original).

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

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

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 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."

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 seriesas 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 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 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, illegalrecruitment 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
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 combinationor 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

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

"(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.

xxx xxx xxx

"(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

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.

"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.

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.

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

xxx xxx xxx

"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 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 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 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 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

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

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.

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:

"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:

"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?

‘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).’

xxx xxx xxx

"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

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 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 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 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 declared invalid, unless the conflict with the Constitution is shown to be clearly
beyond reasonable doubt.

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 arguments with interesting little stories. Thus, petitioner opened
his Oral 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 to love. In short, the Court has rendered its judgment, and
the heavens have not fallen. Quite the contrary, petitioner is now accorded the opportunity to prove
his clear conscience and inculpability.

WHEREFORE, I vote to DISMISS the Petition and to uphold the constitutionality of RA 7080.

Footnotes

1 Memorandum for Petitioner, p. 11.

2 Ibid., p. 66.

3 Id., p.76.

4 Petitioner’s Memorandum, p. 16.

5 285 SCRA 504, January 29, 1998, per Francisco, J.

6 GR No. 135294, November 20, 2000, per Kapunan, J.

7 §1(d), RA 7080, as amended.

8 165 SCRA 186, August 31, 1988, per Sarmiento, J.

9"Construction is the means by which the Court clarifies the doubt to arrive at the true intent
of the law." Agpalo, Statutory Construction, 1990 ed., p. 44; see also Caltex v. Palomar, 18
SCRA 247, September 29, 1966.

10 See People v. Purisima, 86 SCRA 542, November 20, 1978.

11 These deliberations are quoted in the Comment, pp. 14-15.

12Record of the Senate, Vol. IV, No. 141, June 6, 1989, at p. 1399; quoted in the Comment,
p. 16.

13 Petitioner’s Memorandum, p. 19.

14 Records of the Senate, Vol. IV, No. 140, June 5, 1989, at p. 1310.

15 See discussion of Senate Bill No. 733 on June 6, 1989.

Record of the Joint Conference Meeting – Committee on Justice and Committee on

16

Constitutional Amendments (S. No. 733 & H. No. 22752), May 7, 1991, pp. 40-43.

17 The relevant portions of the Record are as follows:

"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 too 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? Fore example, through misappropriation, conversation, 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 seem 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.

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 the ordinary ---
That’s why I said, that’s a very good suggestion, because if it’s only one act, it may
fall under ordinary crime. But we have here a combination or series, overt or criminal
acts.
REP. 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 . . . . .

REP. ISIDRO.

. . . If there are a series of misappropriations?

THE CHAIRMAN. (REP. GARCIA P.) Yes.

REP. ISIDRO. So, these constitute illegal wealth.

THE CHAIRMAN. (REP. GARCIA P.) Yes, yes.

REP. ISIDRO. Ill-gotten

THE CHAIRMAN. (SEN. TAÑADA) Ill-gotten wealth.

THE CHAIRMAN. (REP. GARCIA P.) Series. One after the other eh di . . .

THE CHAIRMAN. (SEN. TAÑADA), So, that would fall under the term ‘series’?

THE CHAIRMAN. (REP. GARCIA P.) Series, oo.

REP. ISIDRO. Now, if it is combination, ano, two misappropriations . . .

THE CHAIRMAN. (REP. GARCIA P.) It’s not, . . two misappropriations will not be
combination. Series.

REP. ISIDRO. So, it is not a combination?

THA CHAIRMAN. (REP. GARCIA P.) Yes.

REP. ISIDRO. When you say ‘combination’, two different?

THE CHAIRMAN. (REP. GARCIA P.) Yes.

THE CHAIRMAN. (REP. TAÑADA.) Two different.

REP. ISIDRO. Two different acts.

THE CHAIRMAN. (REP. GARCIA P.) For example, ha . . .

REP. ISIDRO. Now series, meaning, repetition . . .

THE CHAIRMAN. (SEN. TAÑADA) Yes.

REP. ISIDRO. With that . . .

THE CHAIRMAN. (REP. GARCIA P.) Thank you.

 THE CHAIRMAN. (SEN. TAÑADA) So, it cold be a series of any of the acts
mentioned in paragraphs 1, 3, 4, 5 of Section 2 (2), or . . 1 (d) rather, or combination
of any of he acts mentioned in paragraph 1 alone, or paragraph 2 alone or paragraph
3 or paragraph 4.

THE CHAIRMAN. (REP. GARCIA P.) I think combination maybe . . which one?
Series?

THE CHAIRMAN. (SEN. TAÑADA) Series or combination.

REP. ISIDRO. Which one, combination or series or series or combination?

THE CHAIRMAN. (SEN. TAÑADA) Okay, Ngayon doon sa definition, ano, Section 2,
definition, doon sa portion ng . . . Saan iyon? As mentioned, as described . . .

THE CHAIRMAN. (SEN. TAÑADA) . . better than ‘mentioned’. Yes.

THE CHAIRMAN. (REP. GARCIA P.) Okay?

REP. ISIDRO. Very good.

THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.

THE CHAIRMAN. (REP. GARCIA P.) maraming salamat po.

The meeting was adjourned at 1:33 p.m."

18 H. J., Inc. v. Northwestern Bell, (1999) 492 US 229, 106 L Ed 2d 195, 109 S Ct 2893, at p.
211: "One evident textual problem with the suggestion that predicates form a RICO pattern
only if they are indicative of an organized crime perpetrator – in either a traditional or
functional sense – is that it would seem to require proof that the racketeering acts were the
work of an association or group, rather than of an individual acting alone. RICO’s language
supplies no grounds to believe that Congress meant to impose such a limit on the scope of
the Act. A second indication from the text that Congress intended no organized crime
limitation is that no such restriction is explicitly stated. In those titles of OCCA (the Organized
Crime Control Act of 1970) where Congress did intend to limit the new law’s application to
the context of organized crime, it said so."

19 GR No. 121777, January 24, 2001, per Kapunan, J.

20The Racketeer-Influenced and Corrupt Organizations Act (RICO), 18 USC §§1961-1968

[18 USCS §§1961-1968] which is Title IX of the Organized Crime Control Act of 1970
(OCCA).

21 Supra.

22 Ibid., at p. 209.

23 Id., at p. 208.
24
Id., at p. 209.

25 The relevant portion of the sponsorship speech of Senator Tañada reads as follows:

"It cannot be seriously disputed that much of our economic woes and the nation’s
anguish are directly attributable to the despoliation of the National Treasury by some
public officials who have held the levers of power.

"It is sad to state, Mr. President, that there is presently no statute that either
effectively discourages or adequately penalizes this predatory act which reached
unprecedented heights and which had been developed by its practitioners to a high
level of sophistication during the past dictatorial regime.

"For, while it is true that we have laws defining and penalizing graft and corruption in
government and providing for the forfeiture of unexplained wealth acquired by public
officials, it has become increasingly evident that these legislations x x x no longer
suffice to deter massive looting of the national wealth; otherwise, this country would
not have been raided and despoiled by the powers that be at that time.

"Indeed, there is a need to define plunder, and provide for its separate punishment
as proposed in Senate Bill No. 733; because, plunder involves not just plain thievery
but economic depredation which affects not just private parties or personal interest
but the nation as a whole. And, therefore, Mr. President, it is a crime against national
interest which must be stopped and if possible stopped permanently."

26 Record of the Senate, Vol. IV, No. 140, June 5, 1989, at pp. 1314-1315.

27 On pp. 19-20 of the Resolution.

28 Foote v. Nickerson, 54 L.R.A. 554.

29Intia Jr. v. Commission on Audit, 306 SCRA 593, April 30, 1999; Paat v. Court of Appeals,
266 SCRA 167, January 10, 1997.

30Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25,
1999.

31 De Guia v. Commission on Elections, 208 SCRA 420, May 6, 1992.

32Quoted portions are excerpts from Senator Tañada’s speech sponsoring Senate Bill No.
733, Records of the Senate, June 5, 1989.

33During the Oral Argument, petitioner contended that Yu Cong Eng v. Trinidad [271 US 500
(1926)] declared the Bookkeeping Act unconstitutional for its alleged vagueness. This is
incorrect. The reason for its unconstitutionality was the violation of the equal protection
clause. Likewise, Adiong v. Comelec (207 SCRA 712, March 31, 1992) decreed as void a
mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec (270 SCRA 106,
March 19, 1997) declared a portion of RA 6735 unconstitutional because of undue
delegation of legislative powers, not because of vagueness.

34 237 SCRA 724, October 26, 1994.

35
224 SCRA 361, July 5, 1993.

36Jeff Atkinson, "Racketeer Influenced and Corrupt Organization," 18 U.S.C. 1961-1968;

"Broadest of the Criminal Statutes," 69 Journal of Criminal Law and Criminology 1 (1978),
p.1.

37 Ibid., at p. 2

38Senator Angara’s vote explaining proposed Senate Bill No. 733; Records of the Senate,
June 5, 1989.

39Ibid.; see also Article II (Declaration of Principles and State Policies), Section 27 of the
1987 Constitution.

40Morfe v. Mutuc, 22 SCRA 424, January 31, 1968; Salas v. Jarencio, 46 SCRA 734, August
30, 1972.

Padilla v. Court of Appeals, 269 SCRA 402, March 12, 1997; Francisco v. Permskul, 173
41

SCRA 324, May 12, 1989.

42 See Article 10, Civil Code.

43Deliberations of the Committee on Constitutional Amendments and Revision of Laws,

November 15, 1988; cited in the Resolution of the Sandiganbayan (Third Division) dated July
9, 2001.

44 Comment, p. 29, citing the House deliberations on House Bill No. 22572, October 9, 1990.

45 Resolution of the Sandiganbayan (Third Division) dated July 9, 2001, pp. 28-30.

30 Phil. 577, March 31, 1915, per Carson, J; see also US v. Ah Chong, 15 Phil. 488,
46

March 19, 1910 and Caram Resources Corp. v. Contreras, supra.

47 14 Phil. 128, September 15, 1909, per Moreland, J.

48Respondent’s Memorandum, pp. 84-85. The solicitor general cites illegal recruitment as an
example of a malum in se crime, which the law penalizes as malum prohibitum; that is, to
punish it severely without regard to the intent of the culprit.

Virata v. Sandiganbayan, 202 SCRA 680, 698-699, October 15, 1991, per
49

Davide, J. (now CJ).

50 Solicitor general’s Comment, pp. 1-2.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-22301 August 30, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO MAPA Y MAPULONG, defendant-appellant.

Francisco P. Cabigao for defendant-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor
O. C. Hernandez for plaintiff-appellee.

FERNANDO, J.:

The sole question in this appeal from a judgment of conviction by the lower court is whether or not
the appointment to and holding of the position of a secret agent to the provincial governor would
constitute a sufficient defense to a prosecution for the crime of illegal possession of firearm and
ammunition. We hold that it does not.

The accused in this case was indicted for the above offense in an information dated August 14, 1962
reading as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section
878 in connection with Section 2692 of the Revised Administrative Code, as amended by
Commonwealth Act No. 56 and as further amended by Republic Act No. 4, committed as follows:
That on or about the 13th day of August, 1962, in the City of Manila, Philippines, the said accused
did then and there wilfully and unlawfully have in his possession and under his custody and control
one home-made revolver (Paltik), Cal. 22, without serial number, with six (6) rounds of ammunition,
without first having secured the necessary license or permit therefor from the corresponding
authorities. Contrary to law."

When the case was called for hearing on September 3, 1963, the lower court at the outset asked the
counsel for the accused: "May counsel stipulate that the accused was found in possession of the
gun involved in this case, that he has neither a permit or license to possess the same and that we
can submit the same on a question of law whether or not an agent of the governor can hold a firearm
without a permit issued by the Philippine Constabulary." After counsel sought from the fiscal an
assurance that he would not question the authenticity of his exhibits, the understanding being that
only a question of law would be submitted for decision, he explicitly specified such question to be
"whether or not a secret agent is not required to get a license for his firearm."

Upon the lower court stating that the fiscal should examine the document so that he could pass on
their authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal.
22 revolver with six rounds of ammunition mentioned in the information was found in his possession
on August 13, 1962, in the City of Manila without first having secured the necessary license or permit
thereof from the corresponding authority?" The accused, now the appellant, answered categorically:
"Yes, Your Honor." Upon which, the lower court made a statement: "The accused admits, Yes, and
his counsel Atty. Cabigao also affirms that the accused admits."

Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the
accused on his part presented four (4) exhibits consisting of his appointment "as secret agent of the
Hon. Feliciano Leviste," then Governor of Batangas, dated June 2, 1962;1 another document
likewise issued by Gov. Leviste also addressed to the accused directing him to proceed to Manila,
Pasay and Quezon City on a confidential mission;2 the oath of office of the accused as such secret
agent,3 a certificate dated March 11, 1963, to the effect that the accused "is a secret agent" of Gov.
Leviste.4 Counsel for the accused then stated that with the presentation of the above exhibits he was
"willing to submit the case on the question of whether or not a secret agent duly appointed and
qualified as such of the provincial governor is exempt from the requirement of having a license of
firearm." The exhibits were admitted and the parties were given time to file their respective
memoranda. 1äwphï1.ñët

Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of
the crime of illegal possession of firearms and sentenced to an indeterminate penalty of from one
year and one day to two years and to pay the costs. The firearm and ammunition confiscated from
him are forfeited in favor of the Government."

The only question being one of law, the appeal was taken to this Court. The decision must be
affirmed.

The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person
to . . . possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or
implement used or intended to be used in the manufacture of firearms, parts of firearms, or
ammunition."5 The next section provides that "firearms and ammunition regularly and lawfully issued
to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine
Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial
governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and
guards of provincial prisoners and jails," are not covered "when such firearms are in possession of
such officials and public servants for use in the performance of their official duties."6

The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt.
Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction
and interpretation come only after it has been demonstrated that application is impossible or
inadequate without them."7 The conviction of the accused must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang,8 where a secret agent was acquitted on
appeal on the assumption that the appointment "of the accused as a secret agent to assist in the
maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the
category of a "peace officer" equivalent even to a member of the municipal police expressly covered
by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the
clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts
with what was held in People v. Macarandang, it no longer speaks with authority.

Wherefore, the judgment appealed from is affirmed.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and
Angeles, JJ., concur.

Footnotes

1 Exhibit 1.

2 Exhibit 2.

3 Exhibit 3.

4 Exhibit 4.

5 Sec. 878 as amended by Republic Act No. 4, Revised Administrative Code.

 6
Sec. 879, Revised Administrative Code.

7 Lizarraga Hermanos v. Yap Tico, (1913) 24 Phil. 504, 513.

8 L-12088, December 23, 1959.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12088 December 23, 1959

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MORO SUMAGUINA MACARANDANG, defendant-appellant.

Valeriano V. Rovira for appellant.

Assistant Solicitor General Guillermo E. Torres and Assistant Solicitor General Florencio Villamor for
appellee.

PARAS, C. J.:

Moro Sumaguina Macarandang was accused an, after trial, convicted of the crime of illegal
possesion of fire-arms in the Court of First Instance of Lanao under the following information:

That on or about June 8, 1954, in the Municipality of Marantao, Province of Lanao, Republic
of the Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there, wilfully, unlawfully and feloniously keep and have his custody
and control one Riot Gun, Winchester, 12 GA. SN-924131 and (8) rounds of ammunitions,
without firs having obtained in proper license or permit therefore from competent authority.

In the present appeal the accused, admitting the ownership and of the firearm and ammunitions in
question, invokes as his legal excuse or authority therefor, the appointment issued him by Governor
Dimakuta as secret agent on October 1, 1953, which reads as follows: 1awphi1.net

TO WHOM IT MAY CONCERN:

For having shown good faith by previously surrending to this Office a firearm, Datu
Sumaguina Macarandang of Kamalig, Marantao, Lanao, has been appointed SECRET
AGENT of peace and order campaigns and detention of crimes. Accordingly, he is hereby
authorized to hold and carry in his possession one (1) Riot Winchester Shotgun, 12 GA.
Serial No. 942131 with twenty(20) rounds of ammunitions for the successful execution of his
hazardous mission.
 Datu Sumaguina Macarandang shall personally report to me from time to time all activities
and whereabouts of lawless and wanted elements roaming in the Municipal District of
Marantoa, as well as all matters affecting tranquility therein existing. lawphi 1.net

It may be true that, as held by the trial court, the Governor has no authority to issue any firearm
license or permit; but section 879 of the Revise Administrative Code provides, as shown at lease by
the subject matter therefor, that "peace officers" are exempted from the requirements relating to the
issuance of license to possess firearms. The appointment of the accused as secret agent to the
assist in the maintenance of peace and order campaigns and detention of crimes, sufficiently put him
within the category of a "peace officer" equivalent even to a member of the municipal police
expressly covered by section 879.

Wherefore, the decision appealed from is reversed and accused acquitted, with costs de officio. So
ordered.

Bengzon, Padilla, Montemayor, Bautista Angelo. Labrador and Gutierrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-30061 February 27, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees,

vs.
JOSE JABINAL Y CARMEN, defendant-appellant.

Office of the Solicitor General Felix V. Makasiar and Solicitor Antonio M. Martinez for plaintiff-
appellee.

Pedro Panganiban y Tolentino for defendant-appellant.

ANTONIO, J.:p

Appeal from the judgment of the Municipal Court of Batangas (provincial capital), Batangas, in Criminal Case No. 889, finding the accused
guilty of the crime of Illegal Possession of Firearm and Ammunition and sentencing him to suffer an indeterminate penalty ranging from one
(1) year and one (1) day to two (2) years imprisonment, with the accessories provided by law, which raises in issue the validity of his
conviction based on a retroactive application of Our ruling in People v. Mapa.1

The complaint filed against the accused reads:

 That on or about 9:00 o'clock, p.m., the 5th day of September, 1964, in the
poblacion, Municipality of Batangas, Province of Batangas, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, a person not
authorized by law, did then and there wilfully, unlawfully and feloniously keep in his
possession, custody and direct control a revolver Cal. .22, RG8 German Made with
one (1) live ammunition and four (4) empty shells without first securing the necessary
permit or license to possess the same.

At the arraignment on September 11, 1964, the accused entered a plea of not guilty, after which trial
was accordingly held.

The accused admitted that on September 5, 1964, he was in possession of the revolver and the
ammunition described in the complaint, without the requisite license or permit. He, however, claimed
to be entitled to exoneration because, although he had no license or permit, he had an appointment
as Secret Agent from the Provincial Governor of Batangas and an appointment as Confidential
Agent from the PC Provincial Commander, and the said appointments expressly carried with them
the authority to possess and carry the firearm in question.

Indeed, the accused had appointments from the above-mentioned officials as claimed by him. His
appointment from Governor Feliciano Leviste, dated December 10, 1962, reads:

Reposing special trust and confidence in your civic spirit, and trusting that you will be
an effective agent in the detection of crimes and in the preservation of peace and
order in the province of Batangas, especially with respect to the suppression of
trafficking in explosives, jueteng, illegal cockfighting, cattle rustling, robbery and the
detection of unlicensed firearms, you are hereby appointed a SECRET AGENT of the
undersigned, the appointment to take effect immediately, or as soon as you have
qualified for the position. As such Secret Agent, your duties shall be those generally
of a peace officer and particularly to help in the preservation of peace and order in
this province and to make reports thereon to me once or twice a month. It should be
clearly understood that any abuse of authority on your part shall be considered
sufficient ground for the automatic cancellation of your appointment and immediate
separation from the service. In accordance with the decision of the Supreme Court in
G.R. No. L-12088 dated December 23, 1959, you will have the right to bear a
firearm, particularly described below, for use in connection with the performance of
your duties.

By virtue hereof, you may qualify and enter upon the performance of your duties by
taking your oath of office and filing the original thereof with us.

FIREARM AUTHORIZED TO CARRY:

Kind: — ROHM-Revolver

Make: — German

SN: — 64

Cal:— .22
On March 15, 1964, the accused was also appointed by the PC Provincial Commander of Batangas
as Confidential Agent with duties to furnish information regarding smuggling activities, wanted
persons, loose firearms, subversives and other similar subjects that might affect the peace and order
condition in Batangas province, and in connection with these duties he was temporarily authorized to
possess a ROHM revolver, Cal. .22 RG-8 SN-64, for his personal protection while in the
performance of his duties.

The accused contended before the court a quo that in view of his above-mentioned appointments as
Secret Agent and Confidential Agent, with authority to possess the firearm subject matter of the
prosecution, he was entitled to acquittal on the basis of the Supreme Court's decision in People vs.
Macarandang2 and People vs. Lucero.3 The trial court, while conceding on the basis of the evidence
of record the accused had really been appointed Secret Agent and Confidential Agent by the
Provincial Governor and the PC Provincial Commander of Batangas, respectively, with authority to
possess and carry the firearm described in the complaint, nevertheless held the accused in its
decision dated December 27, 1968, criminally liable for illegal possession of a firearm and
ammunition on the ground that the rulings of the Supreme Court in the cases
of Macarandang and Lucero were reversed and abandoned in People vs. Mapa, supra. The court
considered as mitigating circumstances the appointments of the accused as Secret Agent and
Confidential Agent.

Let us advert to Our decisions in People v. Macarandang, supra, People v. Lucero,

supra, and People v. Mapa, supra. In Macarandang, We reversed the trial court's judgment of
conviction against the accused because it was shown that at the time he was found to possess a
certain firearm and ammunition without license or permit, he had an appointment from the Provincial
Governor as Secret Agent to assist in the maintenance of peace and order and in the detection of
crimes, with authority to hold and carry the said firearm and ammunition. We therefore held that
while it is true that the Governor has no authority to issue any firearm license or permit,
nevertheless, section 879 of the Revised Administrative Code provides that "peace officers" are
exempted from the requirements relating to the issuance of license to possess firearms; and
Macarandang's appointment as Secret Agent to assist in the maintenance of peace and order and
detection of crimes, sufficiently placed him in the category of a "peace officer" equivalent even to a
member of the municipal police who under section 879 of the Revised Administrative Code are
exempted from the requirements relating to the issuance of license to possess firearms. In Lucero,
We held that under the circumstances of the case, the granting of the temporary use of the firearm to
the accused was a necessary means to carry out the lawful purpose of the batallion commander to
effect the capture of a Huk leader. In Mapa, expressly abandoning the doctrine in Macarandang, and
by implication, that in Lucero, We sustained the judgment of conviction on the following ground:

The law is explicit that except as thereafter specifically allowed, "it shall be unlawful
for any person to ... possess any firearm, detached parts of firearms or ammunition
therefor, or any instrument or implement used or intended to be used in the
manufacture of firearms, parts of firearms, or ammunition." (Sec. 878, as amended
by Republic Act No. 4, Revised Administrative Code.) The next section provides that
"firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or
marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards
in the employment of the Bureau of Prisons, municipal police, provincial governors,
lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors,
and guards of provincial prisoners and jails," are not covered "when such firearms
are in possession of such officials and public servants for use in the performance of
their official duties." (Sec. 879, Revised Administrative Code.)

The law cannot be any clearer. No provision is made for a secret agent. As such he
is not exempt. ... .
It will be noted that when appellant was appointed Secret Agent by the Provincial Government in
1962, and Confidential Agent by the Provincial Commander in 1964, the prevailing doctrine on the
matter was that laid down by Us in People v. Macarandang (1959) and People v. Lucero (1958). Our
decision in People v. Mapa reversing the aforesaid doctrine came only in 1967. The sole question in
this appeal is: Should appellant be acquitted on the basis of Our rulings in Macarandang and Lucero,
or should his conviction stand in view of the complete reversal of
the Macarandang and Lucero doctrine in Mapa? The Solicitor General is of the first view, and he
accordingly recommends reversal of the appealed judgment.

Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws
mean, and this is the reason why under Article 8 of the New Civil Code "Judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal system ... ." The
interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law
originally passed, since this Court's construction merely establishes the contemporaneous legislative
intent that law thus construed intends to effectuate. The settled rule supported by numerous
authorities is a restatement of legal maxim "legis interpretatio legis vim obtinet" — the interpretation
placed upon the written law by a competent court has the force of law. The doctrine laid down
in Lucero and Macarandang was part of the jurisprudence, hence of the law, of the land, at the time
appellant was found in possession of the firearm in question and when he arraigned by the trial
court. It is true that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this
Court is overruled and a different view is adopted, the new doctrine should be applied prospectively,
and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.
This is especially true in the construction and application of criminal laws, where it is necessary that
the punishability of an act be reasonably foreseen for the guidance of society.

It follows, therefore, that considering that appellant conferred his appointments as Secret Agent and
Confidential Agent and authorized to possess a firearm pursuant to the prevailing doctrine
enunciated in Macarandang and Lucero, under which no criminal liability would attach to his
possession of said firearm in spite of the absence of a license and permit therefor, appellant must be
absolved. Certainly, appellant may not be punished for an act which at the time it was done was held
not to be punishable.

WHEREFORE, the judgment appealed from is hereby reversed, and appellant is acquitted, with
costs de oficio.

Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ., concur.

Fernando, J., took no part.

Footnotes

1 L-22301, August 30, 1967, 20 SCRA 1164.

2 106 Phil. (1959), 713.

3 103 Phil. (1958), 500.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 154117 October 2, 2009

ERNESTO FRANCISCO, JR., Petitioner,

vs.
OMBUDSMAN ANIANO A. DESIERTO, JOSEPH EJERCITO ESTRADA, MARIANO Z. VELARDE,
FRANKLIN M. VELARDE, ROBERT C. NACIANCENO, REY DIVINO S. DAVAL-SANTOS,
SOLEDAD S. MEDINA-CUE, PATRICK B. GATAN, LUIS V. MEDINA-CUE, SILVESTRE A. DE
LEON, RAMON V. DUMAUAL, RUBEN A. DE OCAMPO, MARIANO A. BENEDICTO II, GREGORIO
R. VIGILAR, LUIS JUAN L. VIRATA, CESAR E. A. VIRATA, MANUEL B. ZAMORA, JR., RONALDO
B. ZAMORA, FRISCO F. SAN JUAN and ARSENIO B. YULORespondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Before the Court is a petition for review on certiorari filed under Rule 45 of the 1997 Rules of Civil
Procedure to review and set aside the Resolution1 issued by the Office of the Ombudsman dated
November 16, 2001 dismissing, for lack of evidence, the case filed by petitioner Ernesto B.
Francisco, Jr. (hereinafter, petitioner); and the Order,2likewise issued by said Office, dated June 24,
2002 denying, for lack of merit, petitioner’s Motion for Reconsideration.

I. STATEMENT OF FACTS.

On 16 April 2001, petitioner filed a Complaint-Affidavit docketed as OMB-0-01-0577 with the Office
of the Ombudsman, alleging that the following respondents, by their individual acts and/or by
conspiring and confederating with one another, have committed the offenses/acts enumerated
hereunder:

a) For violation of Republic Act No. 7080, otherwise known as an Act Defining and Penalizing the
Crime of Plunder, specifically Section 2, in relation to Section 1, sub-paragraph d(1), (3) and (6), as
amended, by Republic Act No. 7659[:]

1. Joseph Ejercito Estrada – former President of the Republic of the Philippines

2. Mariano "Bro. Mike" Z. Velarde

3. Franklin M. Velarde

4. Gregorio R. Vigilar – former Secretary of [Department of Public Works and Highways

(DPWH)] and Chairman, [Toll Regulatory Board (TRB)]

5. Mariano E. Benedicto II – Executive Director, TRB

6. Ramon V. Dumaual – former Officer-in-Charge, TRB

 7. Frisco San Juan – former Chairman, [Public Estates Authority (PEA)]

8. John Does and Jane Does

b) For violation of Section 3(a) of [Republic Act No. 3019:]

1. Joseph Ejercito Estrada

2. Gregorio R. Vigilar

3. Mariano E. Benedicto

4. Ramon V. Dumaual

5. Frisco San Juan

6. John Does and Jane Does

c) For violation of Section 3(e) of R.A. No. 3019:

1. Joseph Ejercito Estrada

2. Mariano "Brother Mike" Z. Velarde

3. Franklin M. Velarde

4. Gregorio R. Vigilar

5. Mariano E. Benedicto II

6. Ramon V. Dumaual

7. Ruben de Ocampo

8. Frisco San Juan

9. Arsenio B. Yulo – former Chairman and [General] Manager, PEA

10. Robert Nacianceno – former [Metro Manila Development Authority (MMDA)] Manager
and Chairman, Parañaque City Appraisal Committee (PCAC)

11. Patrick B. Gatan – DPWH Representative, PCAC Member

12. Luis V. Medina-Cue – Pasay City Assessor, PCAC Member

13. Soledad V. Medina-Cue – Parañaque City Assessor, PCAC Member

14. Rey Divino Daval-Santos – OIC Parañaque City Engineer’s Office, PCAC Member
 15. Silvestre de Leon – Parañaque City Treasurer, PCAC Member

16. Ronaldo B. Zamora – former Executive Secretary

17. Luis J. L. Virata

18. Manuel B. Zamora, Jr.

19. Cesar E.A. Virata

20. John Does and Jane Does

d) For violation of Section 3(g) of R.A. 3019;

1. Joseph Ejercito Estrada

2. Mariano "Brother Mike" Z. Velarde

3. Franklin M. Velarde

4. Gregorio R. Vigilar

5. Mariano E. Benedicto, II

6. Ramon V. Dumaual

7. Ruben de Ocampo

8. Frisco San Juan

9. Ronaldo B. Zamora

10. Luis J. L. Virata

11. Manuel B. Zamora, Jr.

12. Cesar E.A. Virata

13. John Does and Jane Does

e) For violation of Section 3(h) of R.A. 3019;

1. Ronaldo B. Zamora

f) For violation of Section 3(j) of R.A. 3019;

1. Joseph Ejercito Estrada

2. Mariano "Brother Mike" Z. Velarde

 3. Franklin M. Velarde

2. Gregorio R. Vigilar

3. Mariano E. Benedicto, II

4. Frisco San Juan

5. Ronaldo B. Zamora

6. Luis J. L. Virata

7. Manuel B. Zamora, Jr.

8. Cesar E.A. Virata

9. John Does and Jane Does

[g] For violation of Section 7(a) and (d) of R.A. 6713;

1. Ronaldo B. Zamora3

On May 31, 1990, during the administration of President Corazon Aquino, the Republic of the
Philippines, through the Toll Regulatory Board (TRB),4 granted the Public Estates Authority (PEA) a
Toll Operation Certificate to construct, rehabilitate, maintain and operate a toll expressway, namely,
(a) Seaside Drive at Parañaque to C-6 at Bacoor, Cavite; and (b) Expressway Extension to
Noveleta/Kawit.

On February 3, 1994, during the administration of President Fidel Ramos, Renong Berhad, Majlis
Amanah Rakyat (MARA), and the PEA entered into a Memorandum of Understanding to jointly
undertake the implementation of the tollway project.5

On December 27, 1994, also during the administration of President Ramos, Renong Berhad, MARA
and the PEA entered into a Joint Venture Agreement to develop and operate as a toll road the R-1
Expressway Extension. The entire project became known as the "MCTE Project."6

On August 17, 1995, Renong Berhad, MARA, PEA and United Engineers (Malaysia) Berhad entered
into a Novation Agreement whereby Renong Berhad assigned to United Engineers (Malaysia)
Berhad (UEM) its rights, liabilities and obligations under the Joint Venture Agreement.7

On July 26, 1996, the Republic of the Philippines, acting through the TRB, PEA and UEM-MARA
Philippines Corporation (UMPC) entered into a Toll Operations Agreement (TOA)8 for the design,
construction, operation and maintenance of the MCTE project, which covered the Manila-Cavite Toll
Expressway, the R-1 Expressway, the C-5 Link Expressway, and the R-1 Expressway Extension.
President Fidel Ramos approved the TOA on the same day, July 26, 1996. Under the terms of the
TOA:

1. UEM-MARA shall design and construct the expressways covered by the TOA;
 2. TRB shall ensure the availability and assume responsibility for the acquisition of the lands
required for the right of way including the costs for procuring the area for the right of way;

3. PEA shall operate and maintain the expressways; and

4. PEA shall advance the funds necessary for the acquisition of the Right of Way subject to
reimbursement by the Republic of the Philippines.9

On August 9, 1997, the TRB approved the original alignment for the C-5 link. On the basis of this
alignment, the TRB issued notices to the owners of all properties affected, some of which either
belonged to AMVEL Land Corporation (AMVEL) or were part of joint venture agreements between
AMVEL and the property owners. Private respondent Mariano Z. Velarde is the Chairman of AMVEL
while private respondent Franklin M. Velarde is the Executive Vice President.

Among those property owners to whom TRB sent notices were the following:

a. Mariano Z. Velarde;

b. Asuncion de Jugo;

c. Cornelia Medina;

d. Rosario Medina; and

e. Silvestre Medina.10

Under the Memorandum of Agreement11 (MOA) between PEA and the Republic of the Philippines
through the TRB and the DPWH, the obligations of PEA and TRB/DPWH with respect to the
acquisition of the right-of-way were set forth. Under the MOA, the parties agreed that PEA shall have
the following obligations:

1. To pay the purchase price of the lots to be expropriated for right of way as determined and
requested by TRB/DPWH, x x x

2. To pay the expenses incurred in the relocation or eviction of squatters for the right-of-way
requirements, subject to TRB/DPWH’s repayment x x x;

3. The total amount to be disbursed in the acquisition of right-of-way and the additional
expenses incurred in the relocation and eviction of squatters shall not exceed the amount
borrowed under the loan agreement.12

On the other hand, TRB shall have the following obligations:

1. To identify and locate the lots to be acquired for the right-of-way;

2. To negotiate with individual owners of the lands their purchase price in accordance with
Executive Order No. 329 dated July 11, 1988, Executive Order No. 368 dated August 24,
1989 and Executive Order No. 369 dated September 14, 1989;
 3. To cause the removal and/or relocation of the squatters that may hinder the construction
of the expressway;

4. To prepare the necessary documents between the TRB/DPWH and the lot owners and
owners of improvements;

5. To cause the cancellation of the Certificate of Title in the name of individual lot owners;
[and]

6. To certify to the PEA that the lots for payment are free from all encumbrances and liens in
accordance with the TOA.

It was pursuant to this MOA that the TRB identified and negotiated with the owners of the properties
affected by the construction of the Tollway Project C-5 Link Expressway. Among the properties
affected by the Tollway Project were properties owned or held by AMVEL Land Development
Corporation (AMVEL), namely:

Land No Landowner TCT No. Affected Area

(sq m)

Lot 1-A Corazon & Cornelia Medina 33989 1,520

Lot 1-B AMVEL Land Development Corp. (AMVEL) 33989 6,583

Lot 2-A AMVEL 33988 6,062

Lot B-3-1 ADV Realty Corp. 122510 2,153

Lot 1 AMVEL 33550 6,643

Lot 2-B AMVEL 31446 3,908

Lot 2-C-1 AMVEL 31460 3,813

Lot 2-D-1 Ma. Asuncion de Jugo 113793 753

Lot 2-F-1 Rona Agustines 113796 2,973

Lot 1 Julieta Evangelista, et al. 122378 5,229

Lot 3-A E. Tirona, et al. 133990 16,543

Lot 2-B AMVEL 31988 16,313

Lot 4-A Tirona, et al. 133991 7,075

Total 79,568

Pursuant to the MOA, the TRB requested the Parañaque City Appraisal Committee (PCAC) of the
Metropolitan Manila Development Authority (MMDA) to appraise the affected properties. This
Appraisal Committee was created by virtue of Executive Order No. 329 dated July 11, 1988 as
amended by Executive Order No. 369 dated August 24, 1989 specifically for the purpose of
determining the fair valuation of properties to be purchased or acquired for development and
infrastructure projects for public use.13
On April 21, 1998, PCAC issued Resolution Nos. 98-5,14 98-615 and 98-716 appraising properties
along Dr. A. Santos Avenue as follows:

1. All lots abutting Dr. A. Santos Avenue at TWENTY FIVE THOUSAND PESOS
(₱25,000.00) per sq. m.;

2. All lots interior of Dr. A. Santos Avenue particularly along Palasan and Calang-Calangan,
Bgy. San Dionisio at TWENTY THOUSAND PESOS (₱20,000.00) per sq. m.;

3. All untitled lots abutting Dr. A. Santos Avenue at SEVENTEEN THOUSAND FIVE
HUNDRED PESOS (₱17,500.00) per sq. m.; and

4. All untitled lots interior of Dr. A. Santos Avenue along Palasan and Calang-Calangan at
FOURTEEN THOUSAND PESOS (₱14,000.00) per sq. m.17

On May 6, 1998, the PCAC transmitted copies of Resolution Nos. 98-5, 98-6, 98-7 to the TRB.18

On May 7, 1998, the TRB, through its Resolution No. 98-26, approved the acquisition of properties
affected by the C-5 Link in accordance with the PCAC appraisals.19

On May 8, 1998, the TRB, through Ramon V. Dumaual, made Payment Instructions20 to PEA to pay
AMVEL’s property at ₱20,000.00 per sq. m. pursuant to the PCAC Recommendation.

On April 28, 1998, PEA received a copy of the Memorandum from then President Fidel Ramos,
dated April 27, 1998, regarding the "Request of Bro. Mike Velarde Re: DPWH Road Right of Way
Payments/Settlement on C-5 (PEA-Renong Berhad)." The Memorandum contained the handwritten
marginal note of then President Fidel V. Ramos directing the DPWH to "Fast-Track the remaining
issues NLT April 30, 1998 re the C5-Coastal Road Project in order to alleviate heavy traffic
congestion in the area." At that time, one of the remaining issues was the payment of the purchase
price of AMVEL lands for the right of way, which was then fixed at ₱20,000.00 per sq. m.21

To determine further the fair market value of the affected lands, the matter was referred to three
independent appraisers, namely: Asian Appraisal, Inc.; Royal Asia Appraisal Corporation, and
Cuervo Appraisal, Inc.

On October 6, 1998, Asian Appraisal, Inc. submitted its Appraisal Report22 on the affected lands. It
determined the fair market value at ₱422,622,000.00 for 130,848 sq. m., or ₱3,229.87 per sq. m.

In its letters dated October 19 and 20, 1998, AMVEL questioned the valuation and sought a
reconsideration of said appraisal. In reply thereto, the TRB, in its letter dated October 20, 1998,
informed AMVEL that it would commission another private appraisal company to determine the true
market value of the properties in the area.

On December 28, 1998, Royal Asia Appraisal Corporation submitted its Appraisal Report23 on the
affected lands. It determined the fair market value at ₱4,395,179,000.00 for 319,398 sq. m., or
₱13,760.82 per sq. m.

In a letter24 dated November 8, 1998, AMVEL also questioned the valuation of Royal Asia and
claimed that it was "not realistically indicative of the prevailing market value of the properties." To
break the impasse, AMVEL proposed that a third appraisal be conducted to which then Secretary of
the DPWH, respondent Gregorio Vigilar, agreed. For this purpose, Cuervo Appraisers, Inc. was
engaged to conduct a third appraisal.

On December 9, 1998, AMVEL complained of the "long-delayed payment" for its lands while "other
landowners adjoining [their] property also affected by the C-5 road right-of-way have already been
paid at a price of ₱25,000.00 per sq. m."25

In his reply dated December 29, 1998, respondent Vigilar took exception to the claim of AMVEL that
there was "long-delayed payment," considering that several appraisals of the affected properties
were made. In the same letter, he proposed that the average of the three (3) private appraisals be
used as a final valuation.

On January 11, 1999, Cuervo Appraisers, Inc. submitted its Fair Market Value Appraisal26 of the
affected lands. It determined the fair market value at ₱4,531,752,000 for 251,764 sq. m., or ₱18,000
per sq. m.

Further negotiations ensued between the parties. Finally, a consensus was reached to fix the price
by averaging the four appraisals done by MMDA, Royal Asia, Asian Appraisal, and Cuervo.

On January 15, 1999, the TRB, through its Resolution No. 99-02,27 approved the purchase price of
₱1,221,799,804.00 for the acquisition of a total area of 79,598 sq. m. The average price per sq. m.,
as approved by the TRB, was ₱15,350.00.

On February 17, 1999, respondent Joseph E. Estrada, then President of the Republic of the
Philippines, issued Administrative Order No. 50 entitled "Prescribing the Guidelines for the
Acquisition of Certain Parcels of Private Land for Public Use including the Right of Way, Easement
of Several Public Infrastructure Projects."

On March 30, 1999, respondent Estrada issued two (2) Memoranda to respondent Benedicto, the
Executive Director of TRB. The first Memorandum28 states:

"You are hereby directed to proceed with right of way acquisition of properties covered by the TRB
Resolution #99-02 dated January 15, 1999, subject to existing laws, rules and regulations."

The second Memorandum29 states:

"The contracts for acquisition of the right of way at the C-5 Link of the Manila-Cavite Toll
Expressway, stated in Resolution No. 99-02 of the Toll Regulatory Board, is hereby approved,
subject to compliance with existing laws, rules and regulations.

"Further, you are directed to submit to this office a certification, stating that the said contracts are
above board, that due diligence has been complied with, that these contracts are free from all
defects and that the terms of the contract are the most advantageous to the government."

On March 30, 1999, TRB transmitted to PEA the Deeds of Absolute Sale executed by TRB and
AMVEL as well as the other parties represented by AMVEL. TRB advised PEA that it shall
immediately inform PEA of the approval by the President, and that, in the meantime, PEA should
take note of the Deed of Sale and prepare for the eventual payment of the properties in accordance
with the TOA and the MOA.30
On April 5, 1999, the TRB, in compliance with the Memorandum of the President dated March 30,
1999 and pursuant to its express obligations under the MOA to certify to PEA that the lots to be
acquired were free from all liens and encumbrances, issued its Compliance and
Certification31 stating that the Deed of Sale between the Republic of the Philippines and AMVEL
Land Development Corp., dated March 30, 1999 "was above-board; that due diligence had been
complied with in the negotiation and execution thereof; that to the best of our knowledge, the same
are free from defects and that the terms thereof are not disadvantageous to the Government."

Based on such Compliance and Certification issued by the TRB, PEA paid fifty percent (50%) of the
purchase price to AMVEL.32

On April 8, 1999, respondent Benedicto sent a memorandum33 to the TRB informing it that:

a. The parties executed three (3) deeds of sale on [March 30, 1999];

b. The amounts for the right of way acquisition were those stated in the TRB’s Resolution
No. 99-02;

c. Total amount payable of P1,221,766,640 actually lower by 33,244 from the Board
approved amount of P1,221,799,884. 34

On April 29, 1999, or after nearly a year of negotiations for the purchase of the properties subject of
the Right of Way and upon receipt of the required documentation, PEA released the balance of the
purchase price for the AMVEL properties.35

II. PETITIONER’S ALLEGATIONS

Petitioner, in his complaint-affidavit36 filed before the Office of the Ombudsman, alleges irregularities
in the above-mentioned transactions. In particular, petitioner contends that the government
acquisition of the AMVEL lands took place in just two and a half working days, considering that it
was Holy Tuesday on March 30, 1999, the date that respondent Estrada issued the Memorandum to
TRB and PEA to proceed with the acquisition of lands for the right-of-way of the C-5 Link of the
MCTE Project, and PEA immediately released on April 5, 1999 fifty percent (50%) of the total
purchase price. He points out that Holy Wednesday was a half-working day, and what followed was
a long holiday, commencing on Holy Thursday and ending on Easter Sunday.37 Petitioner alleges
that it was due to the personal intervention of respondent Estrada and his close association with
respondent Mariano Velarde that AMVEL was able to close this deal. In his 183-page petition, he
alleges:

65. Respondent Mike Velarde received a P685,892,495.00 windfall from the government for a
property which he acquired for almost nothing! His only capital was his closeness to respondent
Estrada and the tremendous amount of influence he wielded in the latter’s administration. Of course,
all of these he owes to his mostly impoverished flock who voted for respondent Estrada after
"Brother Mike" endorsed him as "tiyak yon."38

Petitioner claims that the nine (9) parcels of land sold by AMVEL to the government, subject of his
complaint, were outrageously overpriced. He alleges that the Transfer Certificates of Title covering
said parcels of land and their corresponding areas, declared market values, assessed values and
selling prices are as follows:39
 Transfer Area (sq. Declared Assessed Selling Price
Certificate of meters) Market Value Value (Pesos) (Pesos)
Title (Pesos)
140389 2,153 1,507,100 301,420 33,059,315
140388 6,643 4,650,100 930,020 102,003,265
131446 3,908 1,914,920 382,980 60,007,340
140402 3,813 1,868,370 373,670 58,548,615
140396 9,427 6,598,900 1,319,780 144,751,585
140397 44,669 31,268,300 6,253,660 685,892,495
140404 753 368,970 73,790 11,562,315
140405 2,973 1,456,770 291,350 45,650,415
140408 5,299 2,562,210 512,440 81,366,145
Total 79,638 52,195,640 10,439,110 1,222,841,490

Petitioner likewise claims that based on the 1999 tax declarations, AMVEL sold parcels of land,
which were "undeveloped agricultural lands and salt-making beds (salinar) but which had been
reclassified as ‘residential,’ to the government at a price which was more than 2,300% percent of
their total declared market value and 11,700% percent of their total assessed value."40

Petitioner asserts that the purchase price for right-of-way acquisition "should be the equivalent of the
zonal value plus ten (10%) percent thereof," based on Administrative Order No. 50,41 which
respondent Estrada issued on February 17, 1999 and was made effective immediately. Since the
zonal value of the subject parcels of land was set the year before at Four Thousand Five Hundred
Pesos (₱4,500.00) per sq. m. by the Department of Finance,42 the purchase price should have been
Four Thousand Nine Hundred Fifty Pesos (₱4,950.00) only, for a total purchase price of Three
Hundred Ninety-Four Million Two Hundred-Eight Thousand and One Hundred Pesos only
(₱394,208,100.00). He claims that the price that the government paid (₱15,355.00 per sq. m.) was
310% of the zonal value.43

Petitioner argues that "[by] not following the guidelines set by Administrative Order No. 50, the
government was defrauded of the staggering amount of [₱828,633,390.00]" and burdened with the
payment of interest. The government was made to pay in full when the guidelines set by said
Administrative Order provided that, should the landowner refuse to accept the purchase price, the
government would be mandated to initiate expropriation proceedings and deposit only ten (10%)
percent of the offered amount.44

Petitioner notes that even respondent Estrada chose not to follow the guidelines prescribed by
Administrative Order No. 50 by "directing TRB to proceed with the acquisition and approving
[AMVEL’s] Deeds of Sale." He alleges that there was no legal impediment to its application because
the Deeds of Sale for the AMVEL acquisitions were executed long after the effectivity date of
Administrative Order No. 50.45

Petitioner questions the findings of the government appraisal body, MMDA-PCAC, that the subject
parcels of land "have already been developed," and that these were classified as commercial lands.
He relies on "a document found among the records of the Legal Office of the Presidential
Management Staff"46 that states that the lands were "formerly salt-making beds (SALINAR) which
are not suitable for residential or commercial purposes;" that "AMVEL merely covered these salt
factories with trash and other low-grade filling materials;" that the properties "did not even have
access to the highway .. [until] AMVEL built a bridge from said properties to Dr. A. Santos Avenue …
when it was already negotiating with the government;" and that AMVEL knew beforehand about the
proposed highway when it acquired the properties at a purchase price of Two Thousand Pesos
(₱2,000.00) per sq. m., properties that were later sold to the government at Fifteen Thousand Three
Hundred Fifty-Five Pesos (₱15,355.00) per sq. m.47

The rest of petitioner’s allegations were summarized by respondent Office of the Ombudsman in the
questioned Resolution,48 which summary we find to be succinct and hereby quote in part below:

The complainant points out that much earlier, in March 1996, the heirs of a certain Andres
Buenaventura filed an action for annulment of title and reconveyance against the Tirona-Medina
families before the RTC-Paranaque, docketed as Civil Case No. 96-0141. The Buenaventura heirs
claimed that they were rightful owners of the parcel of land covered by TCT No. 14729. The
Buenaventura heirs caused the annotation of a Notice of Lis Pendens on TCT No. 14729. This
notice of Lis Pendens was carried over to the subdivided lots covered by TCT Nos. 133988, 133990
and 133991.

On 06 November 1998, AMVEL submitted to the TRB what it claimed to be a Decision dated 29
October 1998 of the Court of Appeals First Division in CA-G.R. No. 54402, which supposedly
affirmed the Decision of the RTC-Paranaque dismissing the case filed by the Buenaventura heirs.
The purported Court of Appeals Decision was signed by Associate Justices Oswaldo Agcaoili, Fidel
Purisima and Corona Ibay-Somera.

The complainant alleges that the supposed 28 October 1998 Decision was falsified and non-
existent. In fact, the records of the Court of Appeals show that, on 22 February 1999, "its Docket was
instructed to (a)wait result of the investigation of NBI as per instructions of J. Valdez." However,
based on the same records, nothing was heard or mentioned again about the result of the said NBI
investigation.

Notwithstanding the attempt to defraud the government with the submission of the falsified and non-
existent Court of Appeals Decision, TRB did not charge AMVEL and, instead, proceeded with the
execution of the Deeds of Sale on 30 March 1999.

The complainant further alleges that the original projected cost of the right-of-way for the MCTE
Project at the time the Toll Operation Agreement between the government and the foreign investor,
Renong Berhad, was being deliberated in late 1995, was P900 million only. However, by the time the
Toll Operation Agreement was approved by the Office of the President on 26 July 1996, the cost of
the right-of-way acquisition had already risen to P1.7 billion.

The Toll Operation Agreement dated 26 July 1996 itself, in paragraph 5.04 thereof, likewise provides
that "the Grantee (PEA) shall advance the funds necessary for the acquisition of the Right of Way
except land to be reclaimed subject to a limit of [₱1.7 million] and such funds shall be reimbursed by
the Grantor to the Grantee."

As late as October 1998, UEM-MARA Philippines Corporation ("UMPC"), the local subsidiary of
UEM Berhad and a signatory to the Toll Operation Agreement, in a report to the Board of
Investments entitled "Manila Cavite Toll Expressway Project-Project Description October 1998,"
reported in its Summary of Project Costs that the total right-of-way cost is only P1.7 billion. This is
broken down as follows: C-5 Link Expressway, P1.356 billion; and R-1 Extension Expressway, P344
million. UMPC further reported that "TRB on the other hand will be responsible for the acquisition of
the right-of-way which will be financed by PEA in accordance to the terms and conditions of NEDA
as stipulated in the TOA."

Also, under the aforesaid NEDA Board Resolution No. 2, the Malaysian government agency, Majilis
Amanah Rakyat ("MARA") and Renong Berhad’s construction affiliate, United Engineers Berhad
(UEB), were supposed to advance P900 million of the P1.7 billion cost of right-of-way acquisition to
be guaranteed by the national government. Further, MARA and UEB would secure foreign currency
denominated loans for the P900 million that they were willing to advance.

It appears that the project proponents did not even comply with the aforesaid condition for NEDA’s
approval of the project. The Malaysian firms were no longer made to advance the sum of P900
million.

Instead, on 5 December 1997, a Loan Agreement was executed among PEA, as borrower, the
Republic of the Philippines, as guarantor, and a syndicate of local and foreign banks, namely,
Solidbank Corporation, Far East Bank and Trust Company (now part of the Bank of the Philippine
Islands), Asianbank Corporation, Chinatrust (Phils.) Commercial Bank Corporation, Australia and
New Zealand Banking Group Limited, Standard Chartered Bank, The Bank of Nova Scotia (Manila
Offshore Branch), The Development [Bank] of Singapore Ltd., and Bank of America (hereinafter
collectively referred to as the "lender banks").

The Lead Arranger for the loan was Exchange Capital Corporation, which is majority-owned by
respondents Luis J. L. Virata and Manuel B. Zamora, Jr. [The] Co-Lead Arrangers were FEB
Investments, Inc. and SolidBank.

As earlier mentioned, TRB sent notices of acquisition to the landowners of the parcels of land that
would be affected by the C-5 Link sometime in 1997. Thereafter, the TRB Officer-in-Charge
requested the Paranaque City Appraisal Committee to appraise the said parcels of land. Thus, the
City Appraisal Committee came out with Resolution No. 98-5 dated 21 April 1998 with bloated
appraisals of said properties.

Complainant asseverates that in what appears to be an attempt to "legitimize" the bloated appraisal
made by the Parañaque City Appraisal Committee on 21 April 1998, on 7 May 1998, TRB and PEA
entered into a Memorandum of Agreement which, among others, explicitly provides that TRB shall
"identify and locate the lots of land sought to be acquired for the right-of-way" and "negotiate with the
individual owners of the land the purchase price in accordance with Executive Order No. 329 dated
July 11, 1998, Executive Order No. 368 dated August 24, 1989 and Executive Order NO. 269 dated
September 4, 1989." These Executive Orders were even made part of the Memorandum of
Agreement.

The complainant points out that seven (7) months after respondent Mike Velarde got his
P1,222,841,490.00, on 23 November 1999, respondent Estrada, together with respondents Ronaldo
B. Zamora, then Executive Secretary, Gregorio R. Vigilar, then Public Works and Highways
Secretary, and Frisco San Juan, then PEA Chairman, gave his imprimatur and approval to the
proposal of a four (4) month-old, P15 million company, the Coastal Road Corporation ("CRC"), to
take over UMPC and the P7.73 billion MCTE Project (including the 800-hectare reclamation project
along Manila Bay going towards Cavite). This is now the subject of a separate case before the
Ombudsman entitled "Ernesto B. Francisco, Jr. vs. Joseph Ejercito Estrada, et al.," docketed as
OMB Case NO. 0-00-1758.

Complainant Francisco further points out that the beneficial owners of CRC are respondents Luis J.
L. Virata and Manuel B. Zamora, Jr. Respondent Luis J. L. Virata is also CRC’s President and Chief
Executive Officer, while respondent Cesar E.A. Virata is CRC’s Chairman of the Board and is also a
beneficial owner of CRC to the extent of ten (10%) [percent] of its equity.

Also, on 23 November 1999, respondent Estrada, in the presence of respondents Ronaldo B.

Zamora, Gregorio R. Vigilar and Frisco San Juan, gave his imprimatur and approval to CRC’s
proposal to de-prioritize the construction of the C-5 Link Expressway, on the one hand, and to
prioritize the R-1 Expressway Extension, on the other. This was done despite the lack of the
requisite evaluation and approval of the TRB Board and the fact that CRC does not have the
requisite financial and technical capability and track record to take over the MCTE Project. Worse,
the de-prioritization of the C-5 Link despite the P1.85 billion already spent for right-of-way
acquisitions caused the government tremendous losses in terms of the interest on the dollar-
denominated loan used to fund the said acquisitions.

Respondents LUIS J. L. VIRATA and MANUEL B. ZAMORA, JR. had another reason for pushing the
prioritization of the R-1 Expressway Extension. Respondents wanted to expedite the development of
the Caylabne Bay Resort in Ternate, Cavite. In the words of respondent Luis J. L. Virata, the
Caylabne Bay Resort will be developed into a "top-quality resort . . . with a whole bunch of a
Mediterranean-looking buildings" and with "a first-class resort operation." In an interview with Mr.
Philip Cu-Unjieng, which appeared in the 7 February 1999 issue of the Philippine Star, respondent
Virata himself had categorically admitted how critical is the R-1 Expressway Extension to the
development of the Caylabne Bay Resort.

The real problem is that under UMPC’s project timetable, the construction schedule of the C-5 Link
Expressway was set from March 1997 to September 1999, while that of the R-1 Extension was set
almost near the same period, from October 1997 to September 1999. Thus, the idea is for both
expressways to be constructed and finished almost at the same time. However, by October 1998,
both were already delayed by eighteen (18) months and fourteen (14) months, respectively. Instead
of correcting the problem, the government allowed respondent Luis J. L. Virata and Manuel B.
Zamora, J. to take over the project despite their lack of financial and technical capability to do so.
They even tried to borrow from public funds from the Development Bank of the Philippines to finance
their acquisition of UEM Berhad’s share in UMPC.

Respondents Mariano Z. Velarde, Franklin M. Velarde, Luis Juan L. Virata, Cesar E.A. Virata,
Manuel Zamora, Jr., Ronaldo Zamora, Mariano E. Benedicto II, Frisco F. San Juan, Ruben A. de
Ocampo, and Ramon V. Dumaual filed individual Counter-Affidavits; while respondents Robert C.
Nacianceno, Reydivino Bernabe Daval-Santos, Soledad Samonte Medina-Cue, Patrick Beltran
Gatan, Luis Vicente Medina-Cue, and Silvestre San Agustin de Leon, all members of PCAC, filed a
Joint Counter-Affidavit. Respondents Joseph Estrada and Arsenio Yulo were ordered to file their
counter-affidavits, but they did not file any.

Based on its findings of fact, the Office of the Ombudsman resolved to dismiss the case for lack of
evidence.49

Petitioner filed a Motion for Reconsideration50 on January 14, 2002, alleging that serious errors of
law and/or irregularities had been committed prejudicial to his interest, as follows:

1. The Ombudsman did not conduct fact-finding in the instant case and pursue investigation
requested by the complainant.

2. The Ombudsman did not issue the subpoena duces tecum requested by the complainant
as would afford the complainant the chance to file a reply-affidavit.
 3. The inhibition of Desierto came too late since he had already prejudged the case.

4. The Ombudsman did not act on the motion for the inhibition of Overall Deputy
Ombudsman Margarito P. Gervacio, Jr. At any rate, Gervacio, out of delicadeza or sense of
decency, should have voluntarily inhibited himself.

5. The Overall Deputy Ombudsman does not have authority to approve the dismissal of the
instant case.

6. The Ombudsman took at their face value the arguments of, and interpretation of the law
by, the respondents, on the one hand, and totally disregarded the evidence of complainant,
on the other.

7. In their haste to dismiss the instant case, Desierto and Gervacio did not consider
additional evidence submitted by the complainant. 51

Respondent Office of the Ombudsman denied petitioner’s Motion for Reconsideration in an

Order52 dated June 24, 2002.

III. ASSIGNMENT OF ERRORS

Petitioner raises the following assignment of errors against the questioned Resolution and Order
issued by the Office of the Ombudsman:

The respondent Ombudsman committed a serious error of law in ruling that "the
transaction/negotiation for the purchase of affected lands was consummated as early as May 1998"
and that "Administrative Order No. 50 finds no application to the already perfected contract between
TRB and AMVEL.

II

The respondent Ombudsman committed a serious error of law and grave abuse of discretion
amounting to excess or lack of jurisdiction, in concluding, without basis in fact, "that respondents
complied with the prescribed procedure in determining a fair and reasonable valuation of the
properties in question" and in not finding that respondents committed plunder and/or graft.

III

The respondent Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents committed plunder and/or
graft when they changed the original alignment of the Sucat Interchange which increased the
affected land area of Amvel from 63,629 sq. mtrs. to 80,256 sq. mtrs. or a difference of 16,897 sq.
mtrs. which was sold to the government for about P259,115,495.00.

IV

The respondent Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents committed plunder and/or
graft when respondent Mike Velarde made a billion-peso killing from the transaction.
 V

The respondent Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents committed graft when they
proceeded with the transaction despite the fact that 44,699 sq. mtrs. of land sold to the government
did not have a clean title at the time of sale.

VI

The respondent Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents committed plunder and
graft when they bloated the cost of the road-right-of-way and depleted the proceeds of the US$68.6
Million loan for right-of-way acquisition.

VII

The respondent Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents committed graft when they
de-prioritized the R-1 Expressway Extension over that of the C-5 Link Expressway.

VIII

The respondent Ombudsman committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he deliberately did not conduct fact-finding to gather more evidence in the case
below despite repeated requests by the complainant.

IX

The respondent Ombudsman committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he deliberately failed to act on motions to issue subpoena duces tecum and ad
testificandum to further strengthen the case.

The Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction
when he failed to act on the motion for the inhibition of Overall Deputy Ombudsman Margarito P.
Gervacio, Jr. Likewise, Overall Deputy Ombudsman Gervacio committed grave abuse of discretion
amounting to lack of jurisdiction when he failed to voluntarily inhibit himself out of delicadeza or a
sense of decency.

IV. THEORY OF RESPONDENTS

A. COMMENT OF RESPONDENTS ROBERT C. NACIANCENO, REYDIVINO B. DAVAL-SANTOS,

SILVESTRE S.A. DE LEON, PATRICK B. GATAN, SOLEDAD S. MEDINA-CUE, AND LUIS V.
MEDINA-CUE

The case docketed as OMB-0-01-0577 is "primarily an action to hold them accountable for violation
of Section 3 (e) of R.A. 3019, the Anti-Graft and Corrupt Practices Act, on account of their approval,
in 1998, of PCAC Resolution No. 9805 ... as the same resolution had been allegedly used to justify
the alleged over-pricing and related graft and corrupt practices of other respondents in connection
with the acquisition of lands by the national government, in 1999, for the right of way of the C-5 Link
of the Manila-Cavite Toll Expressway Project".

Respondents were "charged in their respective [capacities] as the Chairman and members of the
[PCAC] created under [Executive] Order No. 329, as amended by Executive Order No. 369, primarily
for the determination of the reasonable compensation to be paid to properties that will be affected by
public works and projects in Parañaque City."53

Section 3(e) of Rep. Act No. 3019, under which respondents are charged, provides:

(e) Causing any undue injury to any party, including the Government, 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. This
provision shall apply to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions. (Underscoring supplied by respondents.)

Respondents claim that they are neither alleged nor shown to be, as they in fact are not, "officers
and employees of offices or government corporations charged with the grant of licenses or permits
or other concessions."54

Respondents assert that PCAC Resolution No. 98-5 is recommendatory in nature, and that the
adoption of the recommendations was within the prerogative and discretion of the implementing
officers, most of all Fidel V. Ramos, then the President of the Republic at the time of issuance of
said resolution.

Respondents note that the alleged acts of plunder and graft and corrupt practices attributed to the
other respondents have been shown to have transpired during the incumbency of respondent
Joseph E. Estrada as President of the Republic, and after the issuance of said PCAC Resolution No.
98-5.55

Respondents further argue as follows:

[PCAC] had undertaken diligently and carefully the study and evaluation of the properties that will be
affected by the C-5 Link Expressway in Barangay San Dionisio, Parañaque City, taking cognizance
of the sale of comparable property, the applicable BIR Zonal Value, the opinion solicited from the
residents of the properties near the subject parcels of land, the condition or status of the parcels of
land, the presence of other buildings and structure near the vicinity of the properties, and the
consequential damages to the owners of the affected properties. And, contrary to the allegation of
petitioner, the BIR Zonal Value (6th Revision) which took effect on February 2, 1998 provides for
P20,000.00 per sq. m. value for commercial land along Dr. A. Santos Avenue; and P30,000.00 per
sq. m. value for Commercial land along Ninoy Aquino Avenue; furthermore, while the allegations of
the complainant that the zonal value of the residential regular (RR) lands in Dr. A. Santos Avenue,
San Dionisio, Parañaque City, was fixed by the Department of Finance at P4,500.00 per sq. m. just
a year before the AMVEL sale, the same department has fixed the zonal value of commercial land
along Dr. A. Santos Avenue, Brgy. San Dionisio, Parañaque City at P20,000.00 and along Ninoy
Aquino Avenue at P30,000.00 per sq. m. Parañaque City Ordinance No. 97-08, prescribes the land
use plan and the zoning of the Municipality of Parañaque, [and] provides that the lands along Dr. A.
Santos Avenue is classified as within C-3 high intensity commercial zone.56 (Emphasis added)

[The] valuation of the subject properties is justified, and shown to be consonant and consistent with
existing accepted appraisal practice and procedures in the appraisal of properties, considering that:
 a) The appraisal of the properties was based on such factors as location, accessibility,
selling prices of comparable properties, opinion of people living within the vicinity of the
subject properties, the amenities present like water, electricity, transportation and
communication with the vicinity of the property and the status or condition of the parcels of
land. The Committee has noted that the parcels of land have been developed to mean a
great change in its former condition as salt beds or Salinas and the complainant has
acknowledged this truth in his complaint when he stated that the former salt beds are filled
up or covered by filling materials;

b) During the ocular inspection conducted by the technical committee tasked to inspect the
subject properties, these parcels of land were already filled and developed.

c) Ordinance No. 98-08, which prescribed the land use plan and zoning of the Municipality of
Parañaque, provides that Barangay San Dionisio where subject properties are located, is
within C-3 high intensity commercial zone.57

B. COMMENT OF PRIVATE RESPONDENTS MARIANO Z. VELARDE AND FRANKLIN M.

VELARDE

Private respondents Velarde allege that the transactions involving the purchase of the subject nine
(9) parcels of land were perfected before Administrative Order No. 50 came into effect. The sale was
perfected on May 8, 1998, almost a year before the issuance of Administrative Order No. 50, when
the TRB sent a letter to the PEA instructing the latter to prepare the checks representing payments
for the subject properties.58

Private respondents Velarde aver that Amvel never questioned the amount of the purchase price,
gave its imprimatur to the purchase price set by TRB, and the last thing to be done was the actual
receipt of the checks in payment thereof by Amvel. Unfortunately, however, Amvel was not paid.
Instead, TRB conducted a series of appraisals of the subject property.

As of December 9, 1998, Amvel wrote to the DPWH Secretary, asking that it be paid the purchase
price set by the PCAC as directed by TRB.59 In a letter dated January 20, 1999, TRB informed Amvel
that it was willing to purchase the latter’s properties at a price arrived at by adopting a formula close
to averaging all four (4) appraisals obtained from the PCAC, as well as the three (3) private appraisal
companies.60 Thereafter, TRB issued Resolution No. 99-02 on January 15, 1999 approving the
purchase of the subject properties in the aggregate amount of ₱1,221,799,804.00.61

On April 22, 1999, Amvel was able to receive full payment of the agreed purchase price, but the
amount received was ₱1,221,766,640.00.62

Private respondents argue that the subject properties were not overpriced. The properties were
zoned and classified as commercial areas, not agricultural or residential. Massive development and
improvement works were immediately carried out and introduced after these properties were
acquired by Amvel through purchase or joint venture agreements.63

Private respondents cited several factors why a higher appraisal value than the one eventually used
should be adopted, and these are:

a. The PCAC, as early as April 21, 1998 (way before the election of respondent Estrada to
the presidency in the May 10, 1998 elections), had already fixed the price of the properties
on the site, along with those found in the area: between ₱20,000.00 and ₱25,000.00 per sq.
m.
 b. In 1997, the site was appraised at ₱18,000.00 per sq. m., and a portion of the same with
an area of 49,316 sq. m. covered by TCT No. 133550 was given a development loan
accommodation by Metrobank in the amount of ₱550,000,000.00.

c. The current Bureau of Internal Revenue (BIR) zonal valuation appraised the vicinity at
₱25,000.00 per sq. m.

Private respondents claim that the other properties affected by the C-5 Link Project adjacent to and
near the vicinity of the site were acquired and paid for by the government at ₱25,000.00 per sq. m. in
accordance with the MMDA appraisal.64 For the subject properties, the government was able to save
₱4,645.00 per sq. m.65

The private appraisal companies were engaged by TRB and not Amvel. The final purchase price
was imposed upon Amvel by the government, and respondents Velarde had no hand in fixing the
said amount. Private respondents Velarde merely acted within the bounds of their duties and powers
as officers of Amvel. It was only natural that they would negotiate for an amount most advantageous
to the said company. The fact that the purchase price of the subject properties considerably
plummeted would certainly negate the allegation that respondent Mariano Z. Velarde exerted
influence on respondent Estrada or any other public officer for that matter.

Furthermore, private respondents aver that, except for a small portion, Amvel acquired the
properties at prices ranging from not less than ₱7,500.00 per sq. m. to as high as ₱9,000.00 per sq.
m. Petitioner thus failed to take into consideration the significant incidental expenses for the
acquisition, consolidation, improvement and development of the subject properties.

Private respondents claim that the re-alignment of the C-5 Link Project has actually resulted in the
significant reduction and decrease of the affected areas, that is, from the original 12 hectares to 7.9
hectares. Hence, petitioner completely erred in claiming that the realignment had actually resulted in
a greater profit to Amvel. The subject property, measuring 79,568 sq. m., was just 34.28% of the
total area of the site, which was 232,078 sq. m.

To provide a background of the transactions leading to the purchase by the government of the
subject properties, private respondents gave its version of the antecedent facts, as follows:

a. As early as June 1994, a company by the name of "ADV Realty" had set its sights in
developing [a] large expanse of undeveloped parcels of raw lands around the Ninoy Aquino
International Airport (NAIA) and in Barangay San Dionisio, Parañaque City into a commercial
and business park by entering into various joint venture agreements with several
landowners, particularly the Medina-Tirona family.66

b. A large amphitheater would also be constructed to serve as a multi-purpose complex that

would principally serve as the venue for the weekly prayer meetings and healing sessions of
the members of the El Shaddai Movement of which herein respondent Mariano Z. Velarde is
the Servant Leader.

c. In order to consolidate the whole area, joint ventures were likewise forged with the other
landowners of the adjacent properties who were all prominent families of Parañaque City
(e.g., Medina-Evangelista, Balinghasay and Santos). More importantly, for those properties
that were not available for joint venture, ADV Realty acquired them by purchase.

d. In 1996, development efforts were immediately poured and instituted into the properties in
accordance with the master plan and the business development concepts for the area. In
 1997, ADV Realty was able to consolidate a 23-hectare property and pre-development
operations thereon were in full blast. ADV Realty’s name was then changed into Amvel Land
Development Corporation.

e. However, Amvel was notified by the government, through the TRB, in the last quarter of
1997 that the site will be affected by the C-5 Link Project. Ex-president Fidel V. Ramos was
still the incumbent president at that time.

f. Upon examining the proposed alignment of the aforesaid project, Amvel was surprised to
find out that it would cut across right at the center of the site. This would render the whole
property unattractive to prospective investors as the C-5 Link Project would block all possible
ingress to and egress from the property, making accessibility a major concern.

g. This would entail a re-evaluation and a radical change in the master plan of the
commercial and business park. Once the C-5 Link Project would be constructed, the
remaining property of Amvel would be divided into two (2) portions. Both portions would be
enclosed by the proposed C-5 Link Project and the rivers found on the north and west side of
the property.

h. Even other property owners in the area, most notably the SM Holdings Property and
ADELFA Property, Inc., also raised objections to the C-5 link Project as the original plan of
the said Project posed serious threat to their respective developmental plans for their
properties.

i. As a result, Amvel, along with SM Holdings Property and ADELFA Property, Inc.,
negotiated for the re-alignment of the C-5 Link Project.

j. As a consequence thereof, Amvel was constrained to construct another bridge as a

passageway for the portion located at the southern side of the property. To accomplish such
a task, Amvel was forced to purchase the property where the bridge would be constructed.

k. The final re-alignment plan that was jointly prepared by Amvel, SM Prime Holdings and
ADELFA Properties, Inc. and duly approved by the TRB, had actually and in reality resulted
in the substantial reduction of the portion of the site that would be affected by the C-5 Link
Project. From the original area of TWELVE (12) hectares, it was reduced to only 7.9
hectares.

l. Had Amvel really intended to capitalize on the business opportunity brought about by the
C-5 Link Project, as wrongfully alleged by petitioner, it could have proposed a re-alignment
plan that would consume a larger portion of the site.

Private respondents argue that the subject properties were not bought by Amvel for the purpose of
selling them to the government, in the light of the proposed construction of the C-5 Link Project. After
Amvel and TRB finally agreed on the terms of the sale, all the portions of the site that were caught
along the path of the C-5 Link Project were sold to the government.67 These properties are described
in the following table:

TCT No. Original Size Previous owner Date of JVA/ Size sold
(sq m) Purchase to gov’t.
 140397 122,694 Emmanuel Tirona, Ma. (JVA with ADV 44,669
Aurora T. Mercado, Realty) November
140396 10,099 Rosario T. Medina and 16, 1994 9,427
Corazon T. Medina
140388 49,316 Josefina, Adelaida, Jose Purchased by ADV 6,643
and Teofilo, all surnamed realty on January
Balinghasay 23 1998.
140389 15,721 Balinghasays Purchased, by 2,153
ADV Realty on
January 21, 1997
140402 3,813 Arcadio C. Santos Purchased by ADV 3,813
realty on
September 12,
1997
131446 3,908 Victor B. Santos Purchased by ADV 3,908
Realty in 1997
140404 2 parcels Ma. Asuncion Jugo, Jose JVA with ADV 753
19,543 sq m Ramon L. Santos and Realty on May 27,
140405 Rona S. Agustines 1997 2,973
140408 62,448 Leonor Crisostomo, Land Development 5,229
Julieta, Amelia, Elizabeth, Agreement with
Angela Katrina and ADV Realty on
Kristina Isabela, all December 19,
surnamed Medina 1996

The properties acquired by the government that were previously owned by (1) Emmanuel Tirona,
Ma. Aurora T. Mercado, Rosario T. Medina and Corazon T. Medina; (2) Ma. Asuncion Jugo, Jose
Ramon L. Santos and Rona S. Agustines; and (3) Leonor Crisostomo, Julieta, Amelia, Elizabeth,
Angela Katrina and Kristina Isabela, all surnamed Medina, were all part and parcel of larger tracts of
land that were subject of several joint venture agreements. The remaining portions were developed
in accordance with the undertaking of Amvel under said agreements.

In a Memorandum of Agreement68 dated February 2, 2000 entered into by Emmanuel Tirona, Ma.
Aurora T. Mercado, Rosario T. Medina and Corazon T. Medina, and Amvel, the latter paid the former
the amount of ₱320,000,000.00 as their share of the purchase price paid by the government in
acquiring the portion of the property subject of the Development Joint Venture Agreement (with a
Lease Clause) entered into by the same parties.

Private concrete roads were already constructed within the vicinity and modern drainage systems
were already installed therein. More than one (1) million cubic meters of soil were deposited on the
site to raise its elevation above the highest flood level recorded in the area, appropriately compacted
with the use of heavy equipment as required in a business/commercial land use.

If Amvel had an advance information that the C-5 Link Project would traverse a portion of the site
way back in 1996, then it should have only focused its sight and poured its resources on the 79,568
sq. m. of land affected by the said Project by simply purchasing only to the extent of the same.
Because of the intrusion of the C-5 Link Project into its property, Amvel had to re-evaluate and
change the master plan to conform to the significant changes in the shape and configuration of the
site, which was destructively broken into two parts by the C-5 Link Project. That the C-5 Link Project
greatly reduced the viability and marketability of the intended commercial and business park is
beyond cavil, as the construction of the C-5 Link Project would leave Amvel with a property enclosed
or bounded by a highway and rivers without any access, thereby forcing it to incur major additional
costs and expenses to build the necessary bridges and access roads to connect the remaining
portions to the Ninoy Aquino Avenue.

Amvel, as a consequence of the Project, likewise incurred delays in introducing the needed
developments it undertook to infuse into the property, subject of the Land Development Agreement it
entered into with the Medina family. The amount of ₱10,000,000.00 was paid by Amvel to the
Medina family as penalty for the aforementioned delay.69

Respondents Velarde allege that they had no participation whatsoever in the preparation of the
fabricated CA Decision70 dated October 29, 1998 in Buenaventura-Santiago, et al. v. Sps. Medina, et
al., docketed as CA G.R. No. CV 54402. Amvel received a copy of said decision on November 25,
1998. After receiving the same, Amvel immediately furnished a copy to the TRB and the Register of
Deeds of Parañaque City, to have the same annotated on the Transfer Certificates of Title covering
the parcels of land subject of the aforesaid case. When Amvel tried to secure a certified true copy of
the said decision from the CA, as required by the Register of Deeds and the TRB, it discovered that
the case was still pending for resolution and no such decision had been promulgated. Amvel sent a
letter dated February 8, 1999 to the Register of Deeds of Parañaque City to explain what happened
and request that the annotations already made on the titles be immediately canceled.71 On the same
date, Amvel sent a letter to the TRB informing the latter of its discovery that the alleged decision was
spurious.72 Amvel requested that the CA conduct a full-blown investigation regarding the matter.

C. COMMENT OF RESPONDENT DUMAUAL73

Respondent Dumaual was Officer-in-Charge of the TRB from November 28, 1997 to September 8,
1998.

In his statement of the facts, he pointed out that the alignment of the C-5 Link Expressway project
was revised on April 1998 because, during the discussion with AMVEL on the acquisition of right-of-
way ("ROW") for the revised alignment, it was found that an area between the south slip road and
the main C-5 Link would not be acquired for ROW, which in effect would have produced a pocket
with limited use.74

On September 16, 1998, a Memorandum was sent by respondent to the Board suggesting that "the
south slip road be located nearer to the main C-5 Link to maximize use of real estate." As of that
date, TRB was still unable to formalize the transaction with AMVEL and to pay the latter.
Respondent Dumaual, despite due diligence, was unable to determine the veracity of the relevant
titles submitted for payment. He wrote to the TRB about the problems with the titles and
recommended that said properties be expropriated. He was relieved as OIC of TRB on September 8,
1998 and had no more personal knowledge regarding the other allegations of petitioner.75

D. COMMENT OF PRIVATE RESPONDENT VIGILAR

Private respondent Vigilar raises the following grounds for the dismissal of the petition:

1. The petition is not the proper remedy. Petitioner cannot invoke Rule 45 to question the
subject resolution and order of the Ombudsman.

2. The petition fails to raise any question of law.

 3. In any case, the Office of the Ombudsman acted correctly, on the basis of evidence
presented, in dismissing the complaint considering that –

a. Private respondent Vigilar, being the ex-officio chairman of the TRB during the
relevant period, was in no position to be legally responsible for the TRB’s acquisition
of AMVEL’s properties.

b. The transaction between the TRB and AMVEL concerning the right-of-way for the
C-5 Link was perfected before the promulgation of Administrative Order No. 50.

c. The transaction between the TRB and AMVEL concerning the right-of-way for the
C-5 Link is valid, regular, and complies faithfully with Executive Order No. 132, the
law governing at the time the contract of sale was perfected. The said purchase was
not grossly and manifestly disadvantageous to the government.

d. The evidence does not support a finding of probable cause for the crime of plunder
against private respondent Vigilar.

e. The evidence does not support a finding of probable cause for violation of Section
3 (A), (E), (G) and (J) of Republic Act 3019 against private respondent Vigilar.

f. The petition, like petitioner’s complaint before the Ombudsman, is built on

malicious half-truths, hearsay and even fabricated evidence.

Private respondent Vigilar avers that he only exercised administrative supervision over the TRB
under the provisions of Sec. 38, Ch. 7, Book IV of the Revised Administrative Code of 1987; and that
he acted in good faith, relying on the recommendation of the technical officers of the TRB, and cites
Arias v. Sandiganbayan76 to support this averment.

He asserts that as early as May 7, 1998, the TRB had already approved the properties to be affected
by the C-5 Link based on the PCAC recommendation of ₱20,000 per sq. m., and such approval was
made in accordance with Executive Order No. 132, the law then prevailing. Unfortunately, the TRB
had limited funds, so, hoping for a lower price, it started negotiations with the property owners,
including AMVEL. The TRB and AMVEL agreed subsequently that the price should be adjusted by
hiring independent appraisers and getting the average of the values to be determined by these
independent appraisers and the values stated in the PCAC resolutions. Later, on January 15, 1999,
in keeping with that agreement, the TRB approved the new, substantially reduced purchase price of
₱15,350.00 per sq. m. More than a month later, on February 17, 1999, Administrative Order No. 50
was promulgated setting new standards for the determination of the fair and reasonable value of
private lands that would be expropriated for government infrastructure projects. This Administrative
Order was intended to supplant Executive Order No. 132.

Private respondent alleges that it is a basic fact that a "contract of sale is perfected at the moment
there is a meeting of minds upon the thing which is the object of the contract and upon the price"
(Article 1475 [1], Civil Code). Therefore, at the time TRB and AMVEL agreed as to the process for
determining the purchase price, the contract of sale was already perfected.

The requisites for a valid price in a contract of sale are: (1) it must be real; (2) it must be in money or
its equivalent; and (3) it must be certain or ascertainable at the time of the perfection of the contract
(Articles 1471, 1458, 1468, 1469 and 1473, Civil Code).77 Under Article 1469, price is considered
certain if "it be so with reference to another thing certain, or that the determination thereof be left to
the judgment of a specified person or persons." Said article further provides: "Even before the fixing
of the price by the designated third party, a contract of sale is deemed to be perfected and existing."

Private respondent Vigilar avers that from the time AMVEL agreed sometime in the middle of 1998
that the price would be the average of the values stated in the independent appraisers’ reports and
the PCAC resolutions, the government could no longer re-negotiate for a lower price. Thus, even
before the TRB approved the price at ₱15,350.00 per sq.m. on January 15, 1999, the price had
already become certain. It was immaterial that the Deeds of Sale were signed later. The execution of
these Deeds of Sale was a mere formality; it was meant to document a contract that had been
perfected earlier.78

Private respondent claims that applying Administrative Order No. 50 retroactively to the contract
between the TRB and AMVEL violates Article 4 of the Civil Code, which provides that "[l]aws shall
have no retroactive effect, unless the contrary is provided." Administrative Order No. 50 does not
state that it is exempt from this rule; it does not provide for retroactive effect.

Petitioner has not shown that private respondent Vigilar, as Secretary of the DPWH and concurrent
TRB chairman, amassed any ill-gotten wealth to warrant a charge of plunder. Petitioner does not
allege that private respondent Vigilar received any money or derived any benefit, of any kind, from
the right-of-way acquisition of the affected lands.

Regarding the allegation that he violated Sec. 3 (a) of R.A. No. 3019, private respondent points out
that it is not clear whether he was accused of being the public official who persuaded, induced, or
influenced another public officer to perform an act in violation of rules and regulations; or the one
who was so persuaded, induced, or influenced. Petitioner likewise failed to prove that the elements
of violation of Section 3 (a), (e), (g) and (j) of Rep. Act No. 3019 have been committed by private
respondent Vigilar. Thus, petitioner’s case against him is inadequate.

Private respondent argues that petitioner likewise failed to prove conspiracy. He states that a
conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.79He cites the "well-settled rule" that "conspiracy must be proven as
clearly as the commission of the offense itself."80

Petitioner alleges that respondents Estrada, Ronaldo Zamora, and Vigilar gave their imprimatur to
the takeover by the Coastal Road Corporation of the UMPC, as well as the de-prioritization of the
construction of the C-5 Link when, on November 23, 1999, they were present in a "photo-op" that
took place in Malacañang. Private respondent avers that the "photo-op" was staged by Cavite
government officials to show their constituents that the MCTE Project was being fast-tracked.
Respondents merely graced the occasion in response to requests made by these local officials.
They could not be taken to court simply because of this; otherwise, it would be "guilt by photograph,"
which was contrary to plain and common sense.81

Private respondent points out petitioner’s reliance on a certain "executive summary"82 to support the
latter’s allegation that the subject transaction was grossly anomalous. This document, according to
private respondent, has absolutely no evidentiary value, as its origin is unknown, and it is unsigned.
As regards petitioner’s submission of a Special Report dated August 16, 2000 from the Philippine
Daily Inquirer as evidence, private respondent points out that newspaper and magazine articles are
"hearsay twice removed and have no evidentiary value whatsoever." Private respondent Vigilar cites
in support of this contention the decision laid down by this Court in People v. Woolcock, et al.83

E. COMMENT OF RESPONDENT OFFICE OF THE OMBUDSMAN

 Public respondent raises the following grounds for the denial of the instant petition:

1. The assailed resolution and order of the public respondent are not appealable under Rule
45 of the Rules of Court.

2. Petitioner has not adduced sufficient evidence to show that the transactions involving the
purchase of the AMVEL lands under Executive Order No. 132, Series of 1937 are unlawful or
irregular.

3. Whether under Administrative Order No. 50, Series of 1999 or Executive Order No. 132,
Series of 1937, respondents substantially complied with the prescribed procedure in
determining a fair and reasonable valuation of the properties in question while exercising the
power of eminent domain.

4. There is no law or particular rule that prohibits the re-alignment of the C-5 Link Project.

5. There is nothing unlawful or irregular in getting a reasonable return on investment; neither

is there evidence of bloating of prices.

6. Petitioner’s assertion that TCT No. 140397 (formerly TCT No. (S-14729) 876474)
comprising fifty-six (56%) percent of the total area sold by AMVEL to the government was
not a clean title is rendered moot and academic by the Court of Appeals’ Decision dated 21
April 1999 and the Memorandum of Agreement executed by and between the contending
parties.

7. The public respondent cannot act on complaints based on mere speculations and
conjectures.

8. Matters that are left to the exercise of wisdom and discretion of the Office of the
Ombudsman are not appealable under Rule 45 of the 1997 Rules of Civil Procedure, and
absent any jurisdictional infirmity, the Ombudsman’s determination of probable cause, or the
lack of it, deserves great respect and finality.

According to public respondent, the law on sales contemplates the consummation of the sales
transaction at the moment there is a meeting of minds of the parties thereto, upon the thing which is
the object of the contract and upon the price.84 In the case at bar, the meeting of the minds for the
purchase of AMVEL properties occurred on May 8, 1998, the date TRB instructed PEA to pay the
checks for the properties expropriated through the mode of voluntary sales. Public respondent
alleges:

Significantly, the purchase transactions over the subject properties are negotiated ones. On 9
August 1997, notices of acquisition were sent by TRB to the affected landowners. In view of the
acceptance by AMVEL of the amount offered by the government during the negotiation process, no
expropriation proceeding was initiated in court. Upon appraisal by the [PCAC], the parties
successfully arrived into an agreement as to the value or purchase price of the affected properties
on or before 08 May 1998, as evidenced by a letter sent by respondent Ramon V. Dumaual, Officer-
in-Charge, Toll Regulatory Board, to the Public Estates Authority, instructing the latter to prepare the
checks representing payments for the subject properties. It is therefore clear that the governing law
at that given time was still Executive Order No. 132, Series of 1937, and not Administrative Order
No. 50, which took effect on 17 February 1999.85
Public respondent Ombudsman contends that in claiming that the subject properties were
overpriced, petitioner failed to consider that the transactions were entered into by the State in the
exercise of the power of eminent domain, which necessarily involves a derogation of a fundamental
or private right of the people. Public respondent asserts that "[the] appraisal or assessment of the
property subject of the taking is not based solely on the market value or zonal valuation made
thereof by the Bureau of Internal Revenue (BIR)."86

Administrative Order No. 50, which petitioner believes should have been followed, provides the
following standards for the assessment of the value of the land:

SECTION 3.Standards for the Assessment of the Value of the Land Subject of Expropriation
Proceeding. x x x

(a) The classification and use for which the property is suited;

(b) The developmental costs for improving the land;

(c) The value declared by the owners;

(d) The current selling price of similar lands in the vicinity;

(e) The reasonable disturbance compensation for the removal and/or demolition of certain
improvements on the land and for the value of improvements thereon;

(f) The size, shape or location, tax declaration and zonal valuation of the land;

(g) The price of the land as manifested in the ocular findings, oral as well as documentary
evidence presented; and

(h) Such facts and events so as to enable the affected property owners to have sufficient
funds to acquire similarly-situated lands of approximate areas as those required from them
by the government, and thereby rehabilitate themselves as early as possible.

Executive Order No. 132 issued on December 27, 1937, on the other hand, laid down the
following procedure:

(i) The Director of the Bureau of Public Works, City or District Engineer or other officials
concerned shall make the necessary negotiations with [the] owner of the property needed for
public use with a view to having it donated, or sold to the government at not to exceed the
assessed valuation prior to the investigation and survey of the project.

(j) If the negotiation fails, the officials concerned shall forthwith and by formal notification
submit the matter to an Appraisal Committee which is hereby created and which shall be
composed of the Provincial Treasurer, as Chairman, and the District Engineer and the
District Auditor, as members, of the province where the land is located. If the property is
situated in a chartered city the Appraisal Committee shall be composed of the City
Treasurer, as Chairman and the City Engineer and City Auditor, as members thereof. x x x

Public respondent contends that there was sufficient compliance with the guidelines and prescribed
procedure set forth in both issuances. The referral to PCAC for the determination of the fair market
value of the properties was in order. PCAC’s appraisal of ₱20,000.00 per sq. m. was a result of
several factors: assessing the location accessibility; selling prices of comparable properties; the
amenities present like water, electricity, transportation and communication within the vicinity; and the
status or condition of the parcels of land. TRB’s act of subjecting the properties to another round of
appraisal by independent appraisal companies was but a manifestation that it was protecting the
government’s interests by ensuring that it would not be put to a disadvantageous position by the
appraisal recommended by PCAC. The result of the appraisals conducted by the three independent
appraisal companies led TRB to come up with an average appraisal in the amount of ₱15,355.00 per
sq. m. in purchasing AMVEL’s properties. The amount was below the original recommendation of
PCAC to purchase AMVEL’s properties at ₱20,000.00 per sq. m. The determination of this just
compensation price was fair and reasonable.

The Zonal Valuation (6th Revision) that took effect on February 2, 1997 fixed the amount of
₱4,500.00 per sq. m. as valuation of the residential regular (RR) lands situated on Dr. A. Santos
Avenue, San Dionisio, Parañaque City. Commercial land along the same place was fixed at
₱20,000.00 per sq. m. and along Ninoy Aquino International Airport at ₱30,000.00 per sq. m. The
affected AMVEL properties were classified by Ordinance No. 97-08 as within the C-3 high-intensity
commercial zone.

Public respondent claims that the Appraisal Committees created under E.O. 132 are endowed with
special technical knowledge, skills, expertise and training on the subject of appraisal; that the
discretion given to the authorities on this matter is of such wide latitude that the Court will not
interfere therewith, unless it is apparent that it is being used as a shield to a fraudulent transaction;
and that government agencies or bodies dealing with basically technical matters deserve to be
disentangled from undue interference from the courts, and so from the Ombudsman as well
(Concerned Officials of the Metropolitan Waterworks and Sewerage System [MWSS] v.
Vasquez,87 citing Felipe Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary88).89

Public respondent further contends:

[The] final re-alignment plan duly approved by the TRB resulted in the substantial reduction of the
area traversed by the C-5 Link Project from the original area of twelve (12) hectares to only 7.9
hectares, and only after averaging the appraisals of government and private appraisers. This factual
circumstance indicated prudence on the part of private respondent PEA and TRB officials in
effecting the power of eminent domain, as they gave due regard to the rights of the landowners
thereof. Again, the reduction in the expropriated private lands upon consideration of the rights of the
landowners may not be criminally actionable absent any showing of irregularity aliunde.

xxx

There are well-observed rules in the field of real estate. Judicial notice may be taken of a cardinal
rule, which is likewise of common knowledge, that the value of real property appreciates over time
and at a rate which depends on the extent of development of the area where the land is situated.
Thus, the price sold at any given time does not mean that the same price would be utilized for a
subsequent sale thereof, especially where the property has undergone development or has been
converted into land for commercial purposes. [Even] petitioner concedes that AMVEL developed the
lands which were sold to the government. Thus, it was but reasonable for the price of the lands to
have appreciated. Besides, private respondents Velarde and/or AMVEL being engaged in real estate
business, it is only natural for them to ensure that profits are obtained on top of their investments, or
even speculate, for that matter. As declared by this Honorable Court in the case of Tatad vs. Garcia,
Jr., "in all cases where a party enters into a contract with the government, he does so, not out [of]
charity and not to lose money, but to gain pecuniarily."90
xxx

In relation to petitioner’s allegation that the bloated cost of right-of-way (ROW) project depleted the
proceeds of the US $68.6 Million loan for the right of way acquisition, the public respondent finds the
said allegation vague and without factual basis. The amount of loan proceeds was not a factor that
should be considered in appraising the value of the subject properties.91 (Emphasis ours)

F. COMMENT OF RESPONDENTS RONALDO B. ZAMORA, MANUEL B. ZAMORA, JR., CESAR

E.A. VIRATA, AND LUIS L. VIRATA

1. Petition should be dismissed as Petitioner is guilty of forum-shopping

Private respondents allege that petitioner admits that he previously filed a

complaint92 with respondent Office of the Ombudsman against respondents Ronaldo
B. Zamora, Manual B. Zamora, Jr., and Luis J. L. Virata (OMB Case No. 0-00-1758);
however, he did not attach a copy of said complaint to his petition filed before this
Court. Said complaint was dismissed by the Ombudsman. Petitioner’s Motion for
Reconsideration in said case was still pending as of the time of the filing of the
Comment. Private respondents conclude that petitioner had filed multiple suits
involving the very same issues against respondents, and he merely rehashed the
very same charges and allegations in the second complaint. This, according to
private respondents, was forum shopping, defined by this Court in Gatmaytan v.
Court of Appeals,93 as "the institution of two (2) or more actions or proceedings
grounded on the same cause on the supposition that one or the other court would
make a favorable disposition."

Both complaints filed by petitioner are grounded on the same causes and allegations
surrounding the purported illegality of the "transfer" of the Coastal Road Project to
the Coastal Road Corporation. Respondents contend further:

[Petitioner] simultaneously and successively availed himself of several judicial

remedies by filing two (2) separate complaints against herein respondents, all
substantially founded on the same essential facts and circumstances, and all raising
substantially the same issues. Petitioner obviously did this to increase his chances of
obtaining a favorable decision if not in one case or one court or tribunal, then in
another.94

2. Petition does not raise any question of law.

Private respondents submit that a question of law "exists when there is a doubt or
controversy as to what the law is on a certain state of facts, and there is a question of
fact when the doubt or difference arises as to the truth or falsehood of facts." They
further submit that "[one] test is whether the appellate court can determine the issue
raised without reviewing or evaluating the evidence, in which case it is a question of
law; otherwise it will be a question of fact. The question must not involve the
examination of the probative value of the evidence presented."95

3. Petition, on its face, does not raise any credible factual issue in respect to the dismissal of
the complaint against respondents.

Petitioner failed to controvert the findings of fact and law made by the Ombudsman in
his assailed Resolution. Furthermore, the Ombudsman, in its Resolution dated July
 16, 2001 in OMB Case No. 00-00-1758, comprehensively passed upon the very
same allegations of petitioner in OMB Case No. 0-001-00577.

Petitioner’s allegations in his complaint are contradictory. On the one hand, he claims
that the de-prioritization of the C-5 Link Expressway and the prioritization of the R-1
Expressway Extension would benefit Caylabne Bay Resort. On the other hand,
complainant himself alleges that the de-prioritization of the C-5 Link Expressway will
result in a minimal increase in vehicle volume along the R-1 Expressway. Clearly
then, no appreciable benefit would result if Coastal Road Corporation indeed pushed
for the de-prioritization of the C-5 Link Expressway because the alleged benefit to
Caylabne Bay Resort would be negated by the revenue loss due to minimal increase
in the vehicular volume along the entire expressway.96

4. The petition, like petitioner’s complaint before the Ombudsman, is anchored on hearsay
evidence twice removed.

Private respondents allege that in building a case against them regarding the
purported de-prioritization of the C-5 Link Expressway, petitioner quotes extensively
from the February 7, 1999 article from the Philippine Star newspaper. They contend
that "[it] is elementary that newspaper and magazine articles are hearsay twice
removed and have no evidentiary value whatsoever.97

G. COMMENT OF PRIVATE RESPONDENT RUBEN A. DE OCAMPO98

Private respondent Ruben de Ocampo (de Ocampo) argues that the dismissal by the public
respondent of the complaint in the proceedings a quo should be sustained in toto because:

1. Petitioner fails to raise distinct and pure questions of law in the instant petition which
omission is fatal to his appeal by certiorari pursuant to Rule 45 of the 1997 Rules of Civil
Procedure.

2. The petitioner has no legal standing to institute the charges with the Office of the
Ombudsman for alleged violations of Sec.2 in relation to Sec. 1 sub-paragraph d(1), (3) and
(6) of R.A. 7080, and Sec. 3 sub-paragraph (e) and (g) of R.A. 3019.

3. The facts as alleged in the complaint-affidavit and herein petition for review do not
constitute the commission of any offense on the part of respondent De Ocampo and no
evidence whatsoever was presented against respondent De Ocampo to support the
allegations in petitioner’s complaint-affidavit.

De Ocampo avers that he held the position of Public Utility Regulation Officer II at the Toll
Regulatory Board, a position rated at Salary Grade-15, and one that was neither managerial nor
supervisorial in nature. As such, he neither had recommendatory nor decision-making powers or
functions as regards the TRB.

De Ocampo contends that petitioner lacks the required personal knowledge of facts constitutive of
the charges in the latter’s Complaint before the Office of the Ombudsman. Petitioner failed to allege
the means by which he supposedly came to be acquainted with the material facts stated in his
Complaint. According to him:
It is patent and undeniable that Petitioner was never privy to the contracts and communications
alleged in his Complaint and in this Petition for Review. Nowhere in the records does it appear that
Petitioner ever participated in any of the transactions referred to. Petitioner’s conclusions are merely
hearsay and should therefore be disregarded. x x x 99

De Ocampo cites Section 20 of Rep. Act No. 6770, "The Ombudsman Act of 1989," which states:

SECTION 20.Exceptions. — The Office of the Ombudsman may not conduct the necessary
investigation of any administrative act or omission complained of if it believes that:

(1) The complainant has an adequate remedy in another judicial or quasi-judicial body;

(2) The complaint pertains to a matter outside the jurisdiction of the Office of the
Ombudsman;

(3) The complaint is trivial, frivolous, vexatious or made in bad faith;

(4) The complainant has no sufficient personal interest in the subject matter of the grievance;
or

(5) The complaint was filed after one (1) year from the occurrence of the act or omission
complained of.

In this case, de Ocampo alleges that petitioner failed to show any interest in or show proof of
personal knowledge of the transactions as investigated by the Office of the Ombudsman, and has
neither alleged nor proven that his rights have been violated or that he has been put at a
disadvantage by the consummation of the assailed transactions through any act or omission of de
Ocampo.100

Furthermore, private respondent contends:

[The] acts complained of by Petitioner occurred more than one (1) year prior to the institution of the
original Complaint before the Office of the Ombudsman on 16 April 2001. The last assailed
transaction, more specifically, the act of then President Estrada in granting his imprimatur and
approval to CRC’s proposal to deprioritize the construction of the C-5 Link Expressway and to
prioritize the R-1 Expressway Extension, was consummated on 23 November 1999 or at least one
(1) year and four (4) months prior to the filing of the Complaint. The above-quoted Sec. 20 par. 5 of
R.A. 6770 clearly states that "The Office of the Ombudsman may not conduct the necessary
investigation of any administrative act or omission of if it believes that … The complaint was filed
after one year from the occurrence of the act or omission complained of." Considering the length of
time which elapsed between the act complained of and the filing of the Complaint, the Office of the
Ombudsman should not have even considered the charges put … forth by Petitioner. In any event,
the Complaint was correctly and cogently dismissed by the Ombudsman for utter lack of merit. x x
x 101

H. COMMENT OF PRIVATE RESPONDENT FRISCO F. SAN JUAN

Private respondent Frisco F. San Juan (San Juan) raises the following arguments in his Comment:
 I. The petition must be dismissed outright as it does not raise pure questions of law or cite
any special and important reasons for its allowance under Rule 45 of the Revised Rules of
Court.

II. In any case, respondent Ombudsman did not commit any reversible error or grave abuse
of discretion in dismissing petitioner’s complaint a quo, in that:

a. Petitioner completely failed to establish the existence of any of the elements of

plunder in order for the complaint to prosper as against respondent San Juan or any
of his co-respondents.

b. Nor was petitioner able to establish any violation by respondent San Juan of the
Anti-Graft and Corrupt Practices Act. On the contrary, the acquisition of the AMVEL
Properties for the government’s tollway project was neither disadvantageous to the
government nor did it give any unwarranted benefits, advantages or preference to
any party.

c. Petitioner failed to otherwise specify any act or behavior on the part of Respondent
San Juan which constitutes a breach of the Code of Conduct and Ethical Behavior
for public officials and employees.

d. Petitioner’s other imputations and insinuations of anomalies in respect of the

subject expressway construction are equally baseless and purely speculative
accusations of wrongdoing on respondent’s part.

e. Given the patently baseless and utterly deficient complaint for "plunder", "graft",
etc., the additional "fact-finding" proceedings which petitioner sought to have in the
case would have added nothing to petitioner’s cause against respondents.102

San Juan, the Chairman of the PEA from July 1998 to February 2001, submits that a petition for
review on certiorari, under the mode of appeal provided by Rule 45 of the 1997 Rules of Civil
Procedure, is required to raise "only questions of law" which shall be distinctly set forth in the
petition, the Honorable Court not being a trier of facts. Thus, in certiorari proceedings under Rule 45,
the findings of fact below as well as the conclusions on the credibility of witnesses are generally not
disturbed, the question before the court being limited to questions of law.103

According to San Juan, Rule 45 likewise provides that for the petitions to be filed under it to be
allowed, there must be special and important reasons therefor, as when the court a quo has decided
a question of substance not heretofore determined by the Honorable Court, or has decided it in any
way probably not in accord with law or with the applicable decisions thereof; or when the court a quo
has so far departed from the accepted and usual course of proceedings, or so far sanctioned such
departure by a lower court as to call for the exercise of the power of supervision of this Court.

San Juan contends that at the heart of all the purported "serious errors of law" raised by petitioner
are essentially factual questions, which petitioner would have the Honorable Court resolve. Thus,
San Juan avers that petitioner asks that this Honorable Court determine:

· if based on the appraisals of the properties involved, the right-of-way acquisitions were
"overpriced";

· if the purchase of the subject properties "had been consummated on 7 May 1998" ;
 · if there was "compliance with the procedure for the valuation of the properties involved";

· if respondents "amassed wealth" from the subject transaction as to be liable for plunder;

· if President Estrada "intervened" in the purchase of the right-of-way and the payment
thereof;

· if the titles transferred to the Republic were clean;

· and so on.

San Juan concludes from the above that all these questions require an appreciation of the evidence
and an examination of the probative value of the proofs presented to determine the truth or falsity of
the factual claims of the parties below; these are thus factual questions.

As regards petitioner’s allegations of plunder, San Juan notes that "nowhere in the complaint was it
alleged that respondent San Juan or any of his co-respondents received any art of the purchase
price for the lands purchased by the Government from AMVEL from the right of way."104 The initiative
of the TRB not only in renegotiating the purchase price and in causing the re-appraisal of the
properties by three (3) appraisers but also in successfully reducing the purchase price cannot be the
product of, and is in fact inconsistent with, respondents’ supposed "connivance" or "collusion" with
AMVEL.

San Juan further alleges that the negotiation, perfection and execution of the Deed of Sale of the
lands in question between TRB and Amvel were all done without the participation or involvement of
PEA, as it was never involved in the renegotiation efforts. This is consistent with the terms of the
TOA and the MOA, where the "responsibility for acquiring the lands," "the negotiation with its
individual owners" and "the preparation of the necessary documents" including the "cancellation of
the titles in the name of the individual lot owners" and the "transfer thereof in the name of the
government" were all vested in TRB without the intervention of PEA.

San Juan alleges that the following steps were taken to ensure the regularity of the questioned
transaction:

1. Prior to the full payment of the purchase price to the sellers, TRB ensured that the Deeds
of Sale were executed by authorized signatories, with the required Board resolutions and
Special Powers of Attorney and duly notarized.

2. TRB likewise made certain that the real estate taxes covering the remaining quarters of
the year and the documentary stamp taxes due on the transactions equivalent to 1.5% of the
purchase price were shouldered and paid for by AMVEL with the corresponding tax
clearance duly issued by the Bureau of Internal Revenue; and that all titles to the properties
were clean and transferred in the name of the Republic of the Philippines before the balance
of the purchase price was fully paid.

3. Other than paying the purchase price for the properties, the Government did not pay any
expenses for notarization, taxes and transfer fees, registration and processing of the transfer
of titles to the Republic of the Philippines and clearing the properties of occupants and their
relocation.
San Juan concludes that contrary to petitioner’s claims, AMVEL never received a "windfall from the
government for which it acquired for almost nothing." In truth, apart from receiving a purchase price
reduced to the extent of P370 million, AMVEL was required to pay, as it did, expenses normally
shouldered by a seller – all these on top of what petitioner himself recognized as developments
undertaken by AMVEL on the properties prior to their acquisition by the government.105

San Juan contends that tax declarations, which petitioner presented as evidence of the alleged
overpriced purchase price of the properties, are neither proof of the true market value of properties
nor conclusive evidence of their value, but only enable the assessor to identify the same for their
assessment levels.106

Furthermore, San Juan alleges that the acquisition cost of a property cannot be the sole basis for
determining its fair value; the current value of similar properties and their actual or potential uses
must be considered together with other factors.107

Regarding petitioner’s insistence that Administrative Order (A.O.) No. 50 should have been applied,
San Juan’s averments are summarized below:

1. A.O. No. 50 would have no application to the contract between TRB and AMVEL which
had been priorly perfected on May 7, 1998.

2. The Zonal valuation (6th Division) which took effect on February 2, 1997, fixing the
amount of ₱4,500/sq m as valuation of the affected properties, refers to residential regular
(RR) lands situated in Dr. A. Santos Avenue, San Dionisio, Paranaque City. The commercial
lands along same place was fixed at ₱20,000.00/ sq m and along Ninoy Aquino International
Airport at ₱30,000/00 per sq m. The affected AMVEL properties were classified by
Ordinance No. 97-08 as within the C-3 high intensity commercial zone.

3. A.O. No. 50 does not in any way prohibit the conduct of a negotiated sale which is more
expeditious and less expensive for the Government than engaging in a protracted
expropriation proceedings over the properties with the owners thereof. The purported costs
in terms of time, resources and money will not necessarily result in savings for the
Government.

4. Even in expropriation proceedings, just compensation for the properties must be

determined. And by "just compensation" is meant "a fair and full equivalent for the loss
sustained, which is the measure of the indemnity x x x the market value of the land taken x x
x being the sum of money which a person desirous, but not compelled to buy, and an owner,
willing, but not compelled to sell, would agree on as a price to be given and received for such
property." Thus, to determine just compensation, the parties must add to the market value,
the consequential damages. (Tuason v. LTA, 31 SCRA 413) In the present case, the final
valuation agreed upon by the TRB and AMVEL, upon consideration of the market value as
determined by four (4) independent appraisers, constitutes such just compensation that is
not only fair to the seller but to the Government as well.

5. The Honorable Court itself had occasion to observe that protracted expropriation
proceedings do not only mean delay and difficulty for the Government, it also results in the
citizen losing faith in the Government and in its readiness to pay for what it appropriates. x x
x

In this case, the properties affected by the right-of-way involve numerous owners. Thus, in pursuing
a negotiated sale instead of opting for expropriation proceedings and arriving at a mutually
acceptable acquisition price in consideration for the transfer of clean and unencumbered titles to the
Republic, the Government did not suffer any losses, contrary to petitioner’s claims.108

San Juan claims that neither the TRB nor PEA could have aborted the purchase of the AMVEL
properties based on the alleged falsification of the Court of Appeals Decision dated October 29,
1998. These properties were essential for the Tollway Project – a fact which petitioner himself
concedes is a reasonable, necessary and urgent public work. Thus, the TRB, more so PEA, could
not have simply re-arranged the project plans and decided not to acquire the AMVEL properties. In
fact, it is absurd to even suggest that PEA could override the decision to build a cheaper and faster
expressway traversing the AMVEL properties. Not only did the AMVEL properties have the most
advantageous access to the NAIA, their development was the easiest to implement, because they
had already been cleared of squatters and other occupants.109

As for San Juan’s purported "approval" of the take-over of the Tollway Project by the Coastal Road
Corporation (CRC), San Juan states that there is simply no basis for this claim, for the following
reasons:

a. At the end of 1999, the Malaysian counterpart could no longer fund the project due to currency
regulations. After CRC offered to take over the interest of Renong-Berhad, PEA in fact required it so
show proof of its financial and technical capability. When respondent San Juan’s term as PEA
chairman ended, CRC had not yet submitted the PEA requirements. Consequently, respondent San
Juan could not have given my approval to de-prioritize the C-5 project and to prioritize the R-1
Expressway extension as allegedly proposed by CRC. Other than his bare allegations, petitioner has
not presented any proof to show that respondent San Juan and the other respondents have turned-
over the project to CRC and acceded to its proposal to de-prioritize C-5 project and to prioritize the
R-1 Expressway Extensions.

b. x x x [The] Ombudsman had already dismissed a related complaint by the same petitioner when
he similarly questioned the transfer and takeover of the Project to CRC. Thus, in a Resolution dated
16 July 2001, the Ombudsman dismissed the complaint for plunder and violation of RA 3019 filed by
the herein petitioner against Joseph Estrada and other respondents for the transfer and take-over of
the MCTE Project to CRC.110

San Juan also claims that in asserting that the acquisition price arrived at for the questioned
transaction exceeded the limit of ₱1.7 billion for the right-of-way purchase, petitioner ignores that the
landowners of the affected properties are entitled to just compensation for the taking of their
properties. San Juan contends that such just compensation is not based on the budget of the
government for the project, but is "the fair and full equivalent for the loss sustained, which is the
measure of the indemnity x x x the market value of the land taken x x x being the sum of money
which a person desirous, but not compelled to buy, and an owner, wiling, but not compelled to sell,
would agree on as a price to be given and received for such property." San Juan further contends
that petitioner has not otherwise shown how the entire MCTE Project could be achieved within the
said limit of ₱1.7 billion.111

V. ISSUES

The following issues were raised in the petition as well as in respondents’ respective Comments:

A. Whether or not the petition should be dismissed for using the wrong mode of appeal and
for raising questions of fact
 B. Whether or not public respondent Office of the Ombudsman committed serious errors of
law as well as grave abuse of discretion amounting to excess or lack of jurisdiction in issuing
the questioned Resolution and Order

VI. DISCUSSION

A. Whether or not petition should be dismissed for using the wrong mode of appeal and for raising
questions of fact

Respondents Office of the Ombudsman, Mariano Z. Velarde, Franklin M. Velarde, Gregorio R.

Vigilar, Ronaldo B. Zamora, Manuel B. Zamora Jr., Cesar E.A. Virata, Luis L. Virata, and Frisco F.
San Juan contend that a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure before this Honorable Court is not the proper mode of appeal in questioning any final
order or resolution of the Office of the Ombudsman; thus, the instant petition should be outrightly
dismissed motu proprio.

Section 1 of Rule 45 of the 1997 Rules of Civil Procedure provides:

Section 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a
judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition shall raise only questions of law which must be distinctly set
forth.

Private respondents Velarde aver that the "courts" referred to in the provision quoted above are "the
courts that compose the integrated judicial system and do not include quasi-judicial bodies or
agencies such as the Office of the Ombudsman."112 They claim that the proper mode of appeal in
questioning the final judgment, order, or resolution of quasi-judicial bodies or agencies is provided
under Rule 43 of the 1997 Rules of Civil Procedure. Section 1 of said Rule states:

Section 1. Scope.. – This Rule shall apply to appeals from judgments or final orders of the Court of
Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-
judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil
Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission,
Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6557, Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and
voluntary arbitrators authorized by law."

To support their contention that Rule 43 applies to this case, private respondents rely on the Court’s
ruling in Fabian v. Desierto,113 which provides:

Under the present Rule 45, appeals may be brought through a petition for review on certiorari but
only from judgments and final orders of the courts enumerated in Section 1 thereof. Appeals from
judgments and final orders of quasi-judicial agencies are now required to be brought to the Court of
Appeals on a verified petition for review, under the requirements and conditions in Rule 43 which
was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-
judicial agencies.
It is suggested, however, that the provisions of Rule 43 should apply only to "ordinary" quasi-judicial
agencies, but not to the Office of the Ombudsman which is a "high constitutional body." We see no
reason for this distinction for, if hierarchical rank should be a criterion, that proposition thereby
disregards the fact that Rule 43 even includes the Office of the President and the Civil Service
Commission, although the latter is even an independent constitutional commission, unlike the Office
of the Ombudsman which is a constitutionally-mandated but statutorily-created body. (Emphasis
ours.)

Public respondent Ombudsman likewise argues that petitioner has taken the wrong mode of appeal,
citing the rule as laid down by this Court in Tirol v. del Rosario,114 which states:

Section 27 of R.A. No. 6770 provides that orders, directives and decisions of the Ombudsman in
administrative cases are appealable to the Supreme Court via Rule 45 of the Rules of Court.
However, in Fabian v. Desierto, we declared that Section 27 is unconstitutional since it expanded the
Supreme Court's jurisdiction, without its advice and consent, in violation of Article VI, Section 30 of
the Constitution. Hence, all appeals from decisions of the Ombudsman in administrative disciplinary
cases may be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure.

True, the law is silent on the remedy of an aggrieved party in case the Ombudsman found sufficient
cause to indict him in criminal or non-administrative cases. We cannot supply such deficiency if none
has been provided in the law. We have held that the right to appeal is a mere statutory privilege and
may be exercised only in the manner prescribed by, and in accordance with, the provisions of law.
Hence, there must be a law expressly granting such privilege. The Ombudsman Act specifically
deals with the remedy of an aggrieved party from orders, directives and decisions of the
Ombudsman in administrative disciplinary cases. As we ruled in Fabian, the aggrieved party is given
the right to appeal to the Court of Appeals. Such right of appeal is not granted to parties aggrieved
by orders and decisions of the Ombudsman in criminal cases, like finding probable cause to indict
accused persons.

Public respondent avers that no information has been filed with either the Sandiganbayan or the
Regional Trial Court; and not only did petitioner resort to the wrong mode of appeal, he also raised
factual issues in his petition, which are not proper grounds for appeal under the rule. Public
respondent further avers that an error in the choice or mode of appeal is one of the grounds for the
dismissal of the appeal under Section 5, Rule 56 of the 1997 Rules of Civil Procedure.115 This,
aggravated by improper grounds raised on appeal, has rendered the instant petition dismissible.

Although we agree with private respondents Velarde that a petition for review on certiorari under
Rule 45 is not the proper remedy for parties seeking relief from final judgments, orders, or
resolutions of quasi-judicial bodies or agencies like the Office of the Ombudsman, as has been
repeatedly held by this Court,116 we find that the remedy of appeal under Rule 43 posited by private
respondents Velarde is not proper either. This Court subsequently held that under the ruling in
Fabian, "all appeals from decisions of the Ombudsman in administrative disciplinary cases may be
taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure."117 Said remedy,
therefore, is not applicable to cases involving criminal or non-administrative charges filed before the
Office of the Ombudsman, which is the situation in the case before us now. As we further stated
in Tirol v. Del Rosario:

[An] aggrieved party is not without recourse where the finding of the Ombudsman as to the existence
of probable cause is tainted with grave abuse of discretion, amounting to lack or excess of
jurisdiction. An aggrieved party may file a petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure.
In Fabian v. Desierto,118 the case was dismissed and remanded to the Court of Appeals. This case
being criminal and not administrative in nature, however, the conclusion in Fabian is not applicable.

Thus, due to the nature of this case and the allegations involving grave abuse of discretion
committed by the Office of the Ombudsman, it should have been filed under Rule 65, and not Rule
45, of the 1997 Rules of Civil Procedure.

This Court had already provided this remedy in Nava v. Commission on Audit,119 wherein we held:

The remedy availed of by petitioner is erroneous. Instead of a petition for certiorari under Rule 65 of
the Rules of Court, petitioner filed with this Court the present petition for review on certiorari under
Rule 45 of the Rules of Court pursuant to the provisions of Section 27 of Republic Act No. 6770.

Rule 45 of the Rules of Court provides that only judgments or final orders or resolutions of the Court
of Appeals, Sandiganbayan, the Regional Trial Court and other courts, whenever authorized by law,
may be the subject of an appeal by certiorari to this Court. It does not include resolutions of the
Ombudsman on preliminary investigations in criminal cases. Petitioner's reliance on Section 27 of
R.A. No. 6770 is misplaced. Section 27 is involved only whenever an appeal by certiorari under Rule
45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account
where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review,
such as from an incident in a criminal action. In other words, the right to appeal is not granted to
parties aggrieved by orders and decisions of the Ombudsman in criminal cases, like the case at bar.
Such right is granted only from orders or decisions of the Ombudsman in administrative cases.

An aggrieved party is not left without any recourse. Where the findings of the Ombudsman as to the
existence of probable cause is tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction, the aggrieved party may file a petition for certiorari under Rule 65 of the Rules of Court.
(Emphasis ours.)

Again, in Flores v. Office of Ombudsman,120 we ruled as follows:

x x x The instant petition was captioned as a petition for review by certiorari under Rule 45 of the
Rules of Court. However, the arguments raised refer to alleged grave abuse of discretion committed
by the Office of the Ombudsman. In determining the nature of an action, it is not the caption, but the
averments in the petition and the character of the relief sought, that are controlling. Accordingly, we
are compelled to consider the instant petition as one under Rule 65 of the Rules of Court.

This case involves a significant amount of money that was already released by the government to a
private institution, AMVEL, as purchase price for the road right-of-way in a major infrastructure
project that was undertaken by the former and that naturally affected the general public. Therefore,
even if this case was erroneously filed as shown above, and may be dismissed outright under the
rules, the Court deems it appropriate to brush aside technicalities of procedure, as this involves
matters of transcendental importance to the public;121 and to consider the petition as one for
certiorari filed under Rule 65 of the Rules of Court.122

Respondents argue further that the petition should be instantly dismissed for failing to raise purely
questions of law. As may be gleaned from petitioner’s assignment of errors, this Court is being
asked to determine the following, which involve questions of fact:

1. Whether or not Administrative Order No. 50, s. 1999 is applicable to the sale of the subject
properties in this case;
 2. Whether or not private respondents complied with the prescribed procedure in determining
a fair and reasonable valuation of the subject properties;

3. Whether or not respondents bloated the purchase price;

4. Whether or not respondents changed the original alignment of the Sucat Interchange,
which resulted in an increase in the size of the AMVEL property sold to the government;

5. Whether or not respondent Mariano Z. Velarde "made a killing" in the sale of the subject
properties;

6. Whether or not a portion of the subject properties did not have a clean title at the time they
were sold to the government;

7. Whether or not the cost of the right-of-way was bloated, which led to the depletion of the
proceeds of the US$68.6 Million loan for the right-of-way acquisition; and

8. Whether or not respondents de-prioritized the R-1 Expressway Extension over the C-5
Link Expressway.

It is settled that this Court is not a trier of facts123 and its jurisdiction is limited to errors of law. As we
held in Tirol v. Commission on Audit, "There is a question of law in any given case when the doubt or
difference arises as to what the law is on a certain state of facts. A question of fact arises when the
doubt or difference arises as to the truth or falsehood of alleged facts."124

Moreover, in Medina v. City Sheriff, Manila,125 we have stated:

For this petition to be granted, it must be shown that the respondent appellate court committed grave
abuse of discretion equivalent to lack of jurisdiction and not mere errors of judgment, for certiorari is
not a remedy for errors of judgment, which are correctible by appeal.

B. Whether or not public respondent Office of the Ombudsman committed serious errors of law as
well as grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the
questioned Resolution and Order

In the case now before us, petitioner wants this Court to review the evidence that was already
thoroughly studied by public respondent Ombudsman and passed upon in the questioned
Resolution.126 Thus, public respondent found that:

The uncontroverted facts clearly show that Administrative Order No. 50 was issued on February 17,
1999, while the transaction/ negotiation for the purchase of affected lands was consummated as
early as May 1998. As correctly pointed out by respondents, the governing law is Executive Order
No. 132, (E.O. No. 132) issued on December 27, 1937, which laid down the following procedure:

a) The Director of the Bureau of Public Works, City or District Engineer or other officials
concerned shall make the necessary negotiations with owner of the property needed for
public use with a view to having it donated, or sold to the government at not to exceed the
assessed valuation prior to the investigation and survey of the project.

b) If the negotiation fails, the officials concerned shall forthwith and by formal notification
submit the matter to an Appraisal Committee which is hereby created and which shall be
 composed of the Provincial Treasurer, as Chairman, and the District Engineer and the
District Auditor, as members, of the province where the land is located. If the property is
situated in a chartered city the Appraisal Committee shall composed (sic) of the City
Treasurer, as Chairman and the City Engineer and City Auditor, as members. x x x

A perusal of the guidelines as well as the documentary evidence on the transaction reveals that
respondents complied with the prescribed procedure in determining a fair and reasonable valuation
of the properties in question. The referral for the determination of the fair market value of the
properties to [the] Paranaque City Appraisal Committee which recommended the payment of
P20,000.00 per sq. m. thereof was in order. The appraisal was a result of several [factors] ranging
from assessing the location accessibility, selling prices of comparable properties, the amenities
present like water, electricity, transportation and communication within the vicinity and the status or
condition of the parcels of land. TRB’s act of subjecting the properties to another round of appraisal,
this time, by three independent appraisal companies is a manifestation that TRB had made sure that
the Government would not be put in a disadvantageous position in view of a very high appraisal
recommended by PCAC. Clearly, the result of the appraisals conducted by the three (3) independent
appraiser companies led TRB to come up with an average appraisal in the amount of P15,355.00
per square [meter] in purchasing AMVEL’s property. The amount is far below the original
recommendation of PCAC to purchase AMVEL’s property at P20,000.00 per sq. m.

Complainant merely relied on … Administrative Order No. 50 issued by respondent Estrada and on
the fact that the valuation must be based on zonal valuation fixed by BIR at P4,000.00 per sq. m. a
year prior to the sale.

As earlier stated, Administrative Order No. 50 finds no application to the already perfected contract
between TRB and AMVEL. On the Zonal Valuation (6th Revision) that took effect on February 2,
1997 whereby it fixed the amount of P4,500.00 per sq. m. as valuation of the affected properties
however refers to residential regular (RR) lands situated in Dr. A. Santos Avenue, San Dionisio,
Paranaque City. The commercial lands along same place was fixed at P20,000.00 per sq. m. and
along Ninoy Aquino International Airport at P30,000.00 per sq. m. The affected AMVEL properties
were classified by Ordinance No. 97-08, pages 32, 33, 34 as within the C-3 high intensity
commercial zone. The properties in question being within commercial zone, PCAC properly
recommended valuation of P20,000.00 is justified (sic). We agree with the PCAC that the appraisal
of a property is not limited only to the zonal valuation by the BIR. As correctly pointed out by
respondents Nacianceno, Daval-Santos, Medina-Cue and de Leon, the appraisal of properties are
also based on location, accessibility, selling prices of comparable properties, the amenities present
like water, electricity, transportation and communication, etc. In fact, in Administrative Order No. 50,
zonal valuation is only one of the many factors being considered in the payment of just
compensation.

Complainant also anchored his complaint on two (2) Memoranda dated March 30, 1999, from then
President Estrada x x x.

xxx

We find no circumstance to consider the two (2) Memoranda anomalous or irregular. The approval of
the Deeds of Sale between TRB and AMVEL by respondent Estrada was in pursuance to the
provisions of P.D. 1112.

It may not be amiss to state that the transaction between TRB and AMVEL was consummated as
early as May 1998 during the administration of former President Fidel V. Ramos. The payment of the
purchase price was only delayed as the TRB conducted a re-appraisal of the property until the new
administration of respondent Estrada in June 1998. It was only in January 1999 that TRB, then
having come out with a new price per sq. m. after averaging the appraisal of the three (3)
independent appraisers and of PCAC, approved the purchase price of P1,221,799,806.00 for the
acquisition of AMVEL’s property totaling 79,598 per sq. m. at P15,350.00. This delay in the
determination of the consideration did not affect the already perfected contract as the consideration
thereof was already determined or determinable. The events negate complainant’s claim that the
transaction was concluded in just 2 ½ working days. The insinuation that respondent Estrada
favored AMVEL in approving the purchase of subject properties . . . has no basis. If indeed AMVEL
persuaded respondent Estrada to act on its favor, then AMVEL could have pushed for the
acquisition of the properties not at P15,350.00 but at P20,000.00 per sq. m. Besides, the valuation of
P15,355.00 per sq. m. paid to AMVEL is much lower than the advertised price of the properties
adjacent to AMVEL pegged at least P19,000.00to P55,000.00 per sq. m. x x x Further, [with]
respondents Velarde and/or AMVEL, being engaged in business, it is natural that they engage in
profit scheme (sic) which in this case appears justified.

While there was a complete payment in favor of AMVEL of the purchase price of P1,221,766,640.00
within one (1) month from the time respondent Estrada approved the transaction, we find the same
not anomalous. The several [Deeds] of Sale executed by the parties, TRB and AMVEL, stipulate that
fifty (50%) percent of the purchase price shall be paid upon execution of the contract. The other fifty
(50%) percent upon issuance by the Register of Deeds of the corresponding Transfer Certificate of
Title covering the properties in the name of the Republic of the Philippines.

In the crime of Plunder, the following elements must exist:

2. A public officer acquires wealth by himself or in connivance with another person;

3. The acquisition of the wealth was obtained through the means described in Section 1 (d).

In the instant case, the alleged ill-gotten wealth consisting of the overpriced purchase price of the
properties affected by C-5 Link, was allegedly obtained by respondents by taking undue advantage
of their official position, authority, relationship, connection or influence to unjustly enrich themselves
at the expense of the Filipino People.

We find no evidence to support complainant’s claim of the existence of ill-gotten wealth. The
purchase price of P1,221,799,804 paid to AMVEL could not be considered as ill-gotten wealth as
said amount is a consideration of a legally entered Deeds (sic) of Sale. There is no evidence that
public respondents benefited/profited or had taken shares with private respondents in the
transaction.

Complainant contends that public and private [respondents’] acts constitute also violation of Section
3(a), (e), (g), (h) and (j) of Republic Act 3019, as amended.

We find no evidence to support said allegation.

In reference to Section 3(a), there is no sufficient evidence showing that respondents, especially
respondent Estrada, induced or influenced anybody to perform an act in violation of rules and
regulation (sic). Neither was there proof of a violation of any rules or regulations promulgated by
competent authority. Administrative Order No. 50 cannot be considered as the rule violated since it
finds no applications (sic) on the questioned transaction.

Insofar as Section 3(e) is concerned, there was no showing that the government suffered undue
injury when the AMVEL properties were purchased at P15,355.00 per sq. m. As earlier pointed out,
complainant relied on the valuation of P4,500.00 per sq. m. fixed by the BIR when the said valuation
applies to regular residential land and not to commercial lots fixed at least P20,000.00 per sq. m.
The P15,355.00 per square meter [price] is relatively low compared to that recommended by PCAC
and contained at BIR Zonal Valuation which was P20,000.00 per sq. m.

Referring to Section 3(g), there was no basis to conclude that the contract was grossly
disadvantageous to the government. On the contrary, the government was able to save money when
it decided to purchase the questioned properties at P15,355.00 per sq. m. and not at P20,000.00.

Section 3(j) has no application in the instant case as it pertains to the granting of a license, permit or
benefit. Assuming as it does, it established a record that the affected properties were purchased
from persons or [entities] who were legally authorized to sell or own the same in accordance with the
applicable laws, rules and regulations.

We find no evidence that the elements of Section 3(h) exist. The provision requires that there must
be an actual intervention in the transaction for financial or pecuniary interest by public respondent.
While there was an intervention by public respondents the same were in pursuance to the exercise
official duties. Neither public respondents have direct or indirect financial or pecuniary interest with
AMVEL.

Considering that the crimes imputed against the respondents were not shown to exist, conspiracy
could not likewise be appreciated. It is a well settled ruled that conspiracy must be proven as clearly
as the commission of the offense itself.

WHEREFORE, premises considered, this case is hereby DISMISSED for lack of evidence.

SO RESOLVED.127

Upon Motion for Reconsideration of petitioner, respondent Office of the Ombudsman issued an
Order,128 the pertinent portions of which are quoted below:

There is no truth to the allegation that the Ombudsman deliberately failed to order the conduct of
fact-finding investigation. To conduct a fact-finding investigation is a question addressed to the
sound discretion of the Ombudsman and not therefore as a matter of right. When the instant
complaint was filed complainant attached voluminous documents which when evaluated was
sufficient in form and substance to conduct preliminary investigation. To that matter, there is no need
to conduct fact-finding activities as the compliant already reached the formal stage of investigation to
determine whether or not probable cause exists to charge respondents. In the same manner, the
request for subpoena duces tecum cannot be demanded as a matter of policy for every [case] filed
before this Office. From the very beginning it is the duty of the complainant to present complete and
ample evidence to support his allegation and not to rely on the coercive processes of this Office lest
to be accused of being a tool for every complainant’s crusade and be labeled as engaged in fishing
evidence.

[Complainant] questions the inhibition of the Honorable Ombudsman. We view however the same
inhibition a prudent exercise of impartiality. Prudence dictates that the Honorable Ombudsman
himself should inhibit to clear any suspicion that he would engage in any retaliatory [act] against the
complainant in view of the impeachment case filed by the latter. Far from the accusation that the
Honorable Ombudsman prejudged the case as well as the members of the Panel, we submit that the
resolution was arrived [at] after a painstaking appreciation of the available evidence of the
complainant and respondents.
As a consequence of the inhibition of the Honorable Ombudsman, the Overall Deputy Ombudsman,
Hon. Margarito P. Gervacio, Jr. had to perform the duties of the Ombudsman and assumed and took
charge of the disposition of the case. This finds support under Section 8 of R.A. 6770, otherwise
known as "Ombudsman Act of 1989". On the contrary, complainant failed to cite the particular
provision of law allegedly violated when the Overall Deputy Ombudsman approved the dismissal of
the case. In the same manner we find the insinuations of the complainant against the Overall Deputy
Ombudsman baseless much more sufficient to affect or disturb whatever findings we have in our
resolution.

Complainant alleges that his evidence were totally disregarded. He forgot however, that respondents
have evidence too. Notwithstanding with the voluminous documents complainant submitted, this
Office has to weigh the evidentiary value and credibility of the evidence as well as the arguments of
both parties. It so happened that in the appreciation thereof, we gave credence to the evidence of
the other parties. That judgment cannot be put as an issue that would warrant the reversal of our
decision.

In general, the Motion for Reconsideration failed to advance new arguments that would warrant the
reversal of the questioned Resolution. There was no new evidence submitted by the complainant to
warrant a second look of our resolution. The supposed documents he attached in the Motion were
already passed upon and examined by this Office. Lastly, complainant miserably failed to point out
specifically the findings or conclusion of the resolution which was contrary to law.

WHEREFORE, premises considered, the Motion for Reconsideration of the complainant is hereby
DENIED for lack of merit.

SO ORDERED.

We find no cogent reason to weigh all over again the evidence in this case and to reverse the
findings of the public respondent quoted above. This is because, as we held in Tirol v. COA:

[This] Court ordinarily does not interfere with the discretion of the Ombudsman to determine whether
there exists reasonable ground to believe that a crime has been committed and that the accused is
probably guilty thereof and, thereafter, to file the corresponding information with the appropriate
courts. This rule is based not only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise
the functions of the courts will be grievously hampered by immeasurable petitions assailing the
dismissal of investigatory proceedings conducted by the Office of the of the Ombudsman with regard
to complaints filed before it, in as much the same way that the courts would be extremely swamped
if they would be compelled to review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by
a private complainant.129

More recently, we had occasion to pass upon a similar case, the core issue of which was whether
the Ombudsman committed grave abuse of discretion in dismissing petitioners' complaint against the
respondents. In that case, we ruled in the negative and, accordingly, dismissed the petition.130 Thus,
we held:

We cannot overemphasize the fact that the Ombudsman is a constitutional officer duty bound to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient." The raison d 'etre for its creation and endowment of broad investigative authority is to
insulate it from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices,
and others involved in the prosecution of erring public officials, and through the execution of official
pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances
committed by public officers.

In Presidential Commission on Good Government (PCGG) v. Desierto, we dwelt on the powers,

functions and duties of the Ombudsman, to wit:

The prosecution of offenses committed by public officers is vested primarily in the Office of the
Ombudsman. It bears emphasis that the Office has been given a wide latitude of investigatory and
prosecutory powers under the Constitution and Republic Act No. 6770 (The Ombudsman Act of
1989). This discretion is all but free from legislative, executive or judicial intervention to ensure that
the Office is insulated from any outside pressure and improper influence.

Indeed, the Ombudsman is empowered to determine whether there exist reasonable grounds to
believe that a crime has been committed and that the accused is probably guilty thereof and,
thereafter, to file the corresponding information with the appropriate courts. The Ombudsman may
thus conduct an investigation if the complaint filed is found to be in the proper form and substance.
Conversely, the Ombudsman may also dismiss the complaint should it be found insufficient in form
or substance.

Unless there are good and compelling reasons to do so, the Court will refrain from interfering with
the exercise of the Ombudsman's powers, and respect the initiative and independence inherent in
the latter who, beholden to no one, acts as the champion of the people and the preserver of the
integrity of public service.

The pragmatic basis for the general rule was explained in Ocampo v. Ombudsman:

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions
of the courts will be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be extremely swamped if they would be
compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each
time they decide to file an information in court or dismiss a complaint by private complainants.

From the foregoing, it is crystal clear that we do not interfere with the Ombudsman's exercise of his
investigatory and prosecutory powers vested by the Constitution. In short, we do not review the
Ombudsman's exercise of discretion in prosecuting or dismissing a complaint except when the
exercise thereof is tainted with grave abuse of discretion.131 1avvphi1

In the recent case Lazatin v. Ombudsman,132 this Court held that the question of whether "the
Ombudsman correctly ruled that there was enough evidence to support a finding of probable cause
pertains to a mere error of judgment." The Court further held:

It must be stressed that certiorari is a remedy meant to correct only errors of jurisdiction, not errors
of judgment. This has been emphasized in First Corporation v. Former Sixth Division of the Court of
Appeals, to wit:

It is a fundamental aphorism in law that a review of facts and evidence is not the province of the
extraordinary remedy of certiorari, which is extra ordinem — beyond the ambit of appeal. In certiorari
proceedings, judicial review does not go as far as to examine and assess the evidence of the parties
and to weigh the probative value thereof. It does not include an inquiry as to the correctness of the
evaluation of evidence. Any error committed in the evaluation of evidence is merely an error of
judgment that cannot be remedied by certiorari. An error of judgment is one which the court may
commit in the exercise of its jurisdiction. An error of jurisdiction is one where the act complained of
was issued by the court without or in excess of jurisdiction, or with grave abuse of discretion, which
is tantamount to lack or in excess of jurisdiction and which error is correctible only by the
extraordinary writ of certiorari. Certiorari will not be issued to cure errors of the trial court in its
appreciation of the evidence of the parties, or its conclusions anchored on the said findings and its
conclusions of law. It is not for this Court to re-examine conflicting evidence, re-evaluate the
credibility of the witnesses or substitute the findings of fact of the court a quo.133

Even if the issues involved here are factual, petitioner invokes the power of the Court to reverse the
decision of the Ombudsman by alleging that the latter acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. However, as in Morong Water District v. Office of the
Deputy Ombudsman,134 we find that:

[The] Order and the Resolution of the Ombudsman are based on substantial evidence. In dismissing
the complaint of petitioner, we cannot say that the Ombudsman committed grave abuse of discretion
so as to call for the exercise of our supervisory powers over him. This court is not a trier of facts. As
long as there is substantial evidence in support of the Ombudsman's decision, that … decision will
not be overturned. 1avv phi 1

As regards petitioner’s insistence that the Office of the Ombudsman should have conducted a fact-
finding investigation and issued subpoena duces tecum as requested, we find that the
Ombudsman’s action not to issue the same was not made in grave abuse of discretion.135 We have
previously ruled regarding this matter in this wise:

If the Ombudsman may dismiss a complaint outright for lack of merit, it necessarily follows that it is
also within his discretion to determine whether the evidence before him is sufficient to establish
probable cause. Thus, petitioners may not compel the Ombudsman to order the production of certain
documents, if in the Ombudsman's judgment such documents are not necessary in order to establish
the guilt, or innocence, of the accused.

It has been the consistent policy of the Supreme Court not to interfere with the Ombudsman's
exercise of his investigatory powers. xxx

[It] is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in
prosecuting or dismissing a complaint filed before it. Such initiative and independence are inherent
in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of
the integrity of the public service.

The rationale underlying the Court's policy of non-interference was laid down in Ocampo
v.Ombudsman and reiterated in the more recent case of Venus v. Desierto, to wit:

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions
of the courts will be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be extremely swamped if they would be
compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each
time they decide to file an information in court or dismiss a complaint by a private complainant.136
Grave abuse of discretion has been defined as "such capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction." The abuse of discretion must be "so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility."137 We do not find this situation to be present in the instant
case so as to merit a reversal of the questioned Resolution and Order issued by respondent Office
of the Ombudsman.

WHEREFORE, premises considered, the petition is hereby DISMISSED. The assailed Resolution
and Order of the Ombudsman in OMB-0-01-0577 are AFFIRMED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

(On official leave)

CONSUELO YNARES-SANTIAGO
LEONARDO A. QUISUMBING*
Associate Justice
Associate Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

(On leave)
DIOSDADO M. PERALTA
ARTURO D. BRION**
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

* On official leave.

** On sick leave.

1 Rollo, pp. 184-216.

2 Id. at 220.

3 Complaint-Affidavit in OMB-0-01-0577, rollo, pp. 490-494.

4Under Presidential Decree No. 1112, dated March 31, 1977, the Toll Regulatory Board was
created, with powers and functions that include:

Subject to the approval of the President of the Philippines, to enter into contracts in
behalf of the Republic of the Philippines with persons, natural or judicial, for the
construction, operation and maintenance of toll and facilities such as but not limited
to national highways, roads, bridges, and public thoroughfares. Said contract shall be
open to citizens of the Philippines and/or to corporation or association qualified under
the Constitution and authorized by law to engage in toll operations.

5 The PEA entered into a Joint Venture Agreement (JVA) with two Malaysian companies,
following an exchange of state visits between President Ramos and the Malaysian Prime
Minister, Dr. Mahathir Mohammad. The two Malaysian companies were: Mara, a corporate
agency of the Malaysian government; and Renong, a publicly listed company incorporated in
Malaysia.

6 Rollo, p. 452.

7 Renong was replaced by United Engineers Malaysia (UEM), a public company incorporated
in Malaysia.

8 Rollo, pp. 463-468.

9 Id. at 1750.

10 Id. at 850.

11 Id. at 474-478.
12
Id. at 1751-52.

13 Id. at 1752.

14 Id. at 249.

15 Id. at 251.

16 Id. at 252.

17 Id. at 249-252.

18 Id. at 1406.

19 Id. at 1198.

20 Id. at 1176.

21 Id. at 1754.

22 Id. at 1078.

23 Id. at 1104.

24 Id. at 290-295.

25 Id. at 1190.

26 Id. at 1095.

27 Id. at 1197.

28 Id. at 224.

29 Id. at 226.

30 Id. at 1200.

31 Id. at 227.

32 Ibid.

33 Id. at 227.

34 Id. at 207-210.

35 Id. at 1753-1760.

36 Id. at 490.
37
Id. at 494-499.

38 Id. at 64.

39 Id. at 499.

40 Id. at 500.

41 Administrative Order No. 50 provides:

SECTION 1. Conditions to be complied with during the Negotiated Sale. — All

government agencies and instrumentalities which are engaged in public
infrastructure projects, including but not limited to the Department of Public Works
and Highways, National Power Corporation, and the Department of Transportation
and Communication, shall first negotiate with the owner for the acquisition of parcels
of private land intended for public use including the right-of-way easement of such
projects by offering in writing a purchase price of an amount equivalent to ten per
cent (10%) higher than the zonal value of the said property. During the negotiation,
the landowner shall be given fifteen (15) days within which to accept the amount
offered by the concerned government agency as payment for the land.

SECTION 2. Expropriation Proceedings. — After the abovementioned period and no

acceptance is made by the landowner, the concerned agency, in coordination with
the Solicitor General, shall initiate expropriation proceedings in the proper court,
depositing ten per cent (10%) of the offered amount.
 EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2
The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

 STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
 the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1âw phi 1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and
 (3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal
 We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx
11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'
It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.
 III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,
 (Sgd.) FELICIANO BELMONTE JR.
Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,
 (Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
 General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
 scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
 itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
 bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

1 Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2 PDI, October 6, 2000, pp. A1 and A18.

3 Ibid., October 12, 2000, pp. A1 and A17.

4 Ibid., October 14, 2000, p. A1.

5 Ibid., October 18, 2000, p. A1.

6 Ibid., October 13, 2000, pp. A1 and A21.

7 Ibid., October 26, 2000, p. A1.

8 Ibid., November 2, 2000, p. A1.

9 Ibid., November 3, 2000, p. A1.

10 Ibid., November 4, 2000, p. A1.

11The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.

12 Ibid., November 14, 2000, p. A1.

13 Ibid., November 21, 2000, p. A1.

14 Ibid., December 8, 2000, p. A1.

15 Ibid., December 23, 2000, pp. A1 and A19.

16 Ibid., January 12, 2001, p. A1.

Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
17

Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18 Philippine Star, January 17, 2001, p. 1.

19 Ibid., January 18, 2001, p. 4.

20 Ibid., p. 1.
21
Ibid., January 19, 2001, pp. 1 and 8.

"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
22

PDI, February 4, 2001, p. A16.

23 Philippine Star, January 20, 2001, p. 4.

24 PDI, February 4, 2001, p. A16.

25 Philippine Star, January 20, 2001, pp. 1 and 11.

26 Ibid., January 20, 2001, p. 3.

27 PDI, February 5, 2001, pp. A1 and A6.

28 Philippine Star, January 21, 2001, p. 1.

29 PDI, February 6, 2001, p. A12.

30 Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31 Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32 Ibid.

33 Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001,
p. 3; PDI, January 25, 2001, pp. A1 and A15.

35 Philippine Star, January 24, 2001, p. 1.

36 PDI, January 25, 2001, p. 1.

37 Ibid., p. 2.

38 Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39 Annex D, id; ibid., p. 292.

40 PDI, January 27, 2001, p. 1.

41 PDI, February 13, 2001, p. A2.

42 Philippine Star, February 13, 2001, p. A2.

43 Annex E, id.; ibid., p. 295.

44 PDI, February 8, 2001, pp. A1 & A19.

45
Annex F, id.; ibid., p. 297.

46 PDI, February 10, 2001, p. A2.

47 Annex G, id.; ibid., p. 299.

48 PDI, February 8, 2001, p. A19.

49 Philippine Star, February 3, 2001, p. 4.

50"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,

2001, p. 14.

51See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-
125.

53 Rollo, G.R. No. 146738, p. 134.

54Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55 Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56 369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57 See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag
v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58 103 Phil 1051, 1068 (1957).

59 Section 1, Article VIII, 1987 Constitution.

60Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

61 Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay
v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62 Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63 Proclamation No. 3 (1986).

64
It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65 See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62.

66The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievance."

67 See section 8, Article IV.

68 See section 9, Article IV.

69 Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said "… the greatest menace to freedom is an inert people …"

71 307 US 496 (1939).

72 Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73 260 SCRA 798 (1996).

74 Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."

75 Infra at 26.

76 Infra at 41.

77 1 Cranch (5 US) 137, 2 L ed 60 (1803).

78 Gonzales v. Hernandez, 2 SCRA 228 (1961).

79 See its February 4, 5, and 6, 2001 issues.

80 PDI, February 4, 2001, p. A1.

81
Ibid.

82 Ibid.

83 Ibid.

84 Ibid.

85 Ibid.

86 PDI, February 5, 2001, p. A1.

87 Ibid., p. A-1.

88 Ibid.

89 PDI, February 5, 2001, P. A6.

90 PDI, February 6, 2001, p. A1.

In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary
91

Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political
Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner
would not sign the letter.

92 Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93 Id., May 9, 1959, p. 1988

94Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95 Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96 House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of
the people is the voice of God" establishes the basis of her mandate on integrity and morality
in government;

WHEREAS, the House of Representatives joins the church, youth, labor and business
sectors in fully supporting the President's strong determination to succeed;
WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration
of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

97 11th Congress, 3rd Session (2001).

98 11th Congress, 3rd Session (2001).

99 Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

100 11th Congress, 3rd Session (2001).

101 11th Congress, 3rd Session (2001).

102 103 Phil 1051, 1067 (1957).

103 Baker vs. Carr, supra at 686 headnote 29.

104 16 Phil 534 (1910).

105The logical basis for executive immunity from suit was originally founded upon the idea
that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L.
Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval
England when it was generally accepted that the seat of sovereignty and governmental
power resides in the throne. During that historical, juncture, it was believed that allowing the
King to be sued in his courts was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution.
[J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon
v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as
demanding the executive's independence from the judiciary, so that the President should not
be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to
assure the exercise of presidential duties and functions free from any hindrance or
distraction, considering that the Chief Executive is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393
(1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling
litigation, disrespect upon his person will be generated, and distrust in the government will
soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public
policy, it was recognized that the gains from discouraging official excesses might be more
than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity,
the president would be disinclined to exercise decision-making functions in a manner that
might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity
of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106 62 Phil. L.J. 113 (1987).

107 See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108 Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109 Supra at 47.

110 Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111 145 SCRA 160 (1986).

112 128 SCRA 324 (1984).

In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
113

and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114 Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117 520 U.S. 681 (1997).

118 See section 1, Art. XI of the 1987 Constitution.

119 See section 27, Art. II of the 1987 Constitution.

120 See, section 1, Art. XI of the 1987 Constitution.

121 See section 15, Art. XI of the 1987 Constitution.

 122
See section 4, Art. XI of the 1987 Constitution.

123 See section 13 (1), Art. XI of the 1987 Constitution.

124 See section 14, Art. XI of the 1987 Constitution.

See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
125

Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126 Id., p. 1417.

See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
127

249 SCRA 54 (1995)

128 249 SCRA 54 (1955)

129 287 SCRA 581 at pp. 596-597 (1998)

130 247 SCRA 652 (1995)

Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
131

Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132 Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134 See section 4, Rule 112.

135 Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could
have been one innocuous phenomenon buried in the pages of our history but for its critical
dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is
asked – Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph
Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million
Filipinos in the elections of May 1998, served well over two years until January 2001. Formally
impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery,
Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The
Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be
removed from office and face prosecution with the regular courts or, if acquitted, he would remain in
office. An evidence, however, presented by the prosecution tagged as the "second envelope" would
have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope
opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an
angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year
rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering
swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola
reportedly poised to storm Malacañang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for
him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but
beleaguered by solitude-empty of the support by the military and the police, abandoned most of his
cabinet members, and with hardly any firm succor from constituents. And despite the alleged
popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo,
then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a
letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent disability to
govern the serve his unexpired term. Almost all of his cabinet members have resigned and the
Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has
likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable Chief
Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City,
Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible
catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to
keep its doors open, had to help assure that the judicial process was seen to be functioning. As the
hours passed, however, the extremely volatile situation was getting more precarious by the minute,
and the combustible ingredients were all but ready to ignite. The country was faced with a
phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too
limitless to be explicitly contained and constrained by the limited words and phrases of the
constitution, directly sought to remove their president from office. On that morning of the 20th of
January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow
view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or
was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky
to accept. The second could very well help avert imminent bloodshed. Given the realities; the Court
was left hardly with choice. Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution was issued following the en
banc session of the Court on 22 January 2001; it read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of
Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the
authority given by the twelve (12) members of the Court then present to the Chief justice on January
20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.
"This resolution is without prejudice to the disposition of any justiceable case which may be filed by a
proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the worsening
situation at the time. It could not in conscience allow the high-strung emotions and passions of
EDSA to reach the gates of Malacañang. The military and police defections created stigma that
could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming.
The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to
prevent rather than cure an enigma incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise
of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was
still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the
Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in
case of death, permanent disability, removal from office, or resignation of the President,1secondly,
when the President of the Senate and the Speaker of the House of representatives his written declaration
that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the
members of the cabinet transmit to the President and to the speaker of the House of representatives their
written declaration that the President is unable to discharge the powers and duties of his office, 3 the
latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the
above situations have occurred. The conditions for constitutional succession have not been met. He
states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes
his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987
Constitution. The twin letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the
case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish or surrender his position accompanied by an act of
relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has
not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his intention to
relinquish his office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled
to discharge his duties, the embattled President acceded to have negotiations conducted for a
smooth transition of power. The belated proposals of the President to have the impeachment Court
allow the opening of the controversial envelope and to postpone his resignation until 24 January
2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the
following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the vice-president shall be the acting president."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the
morning but the Senate president was said to have received a copy only on the evening of that day.
Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and
inutility in office – not so much by the confluence of events that forces him to step down the seat of
power in a poignant and teary farewell as the recognition of the will of the governed to whom he
owned allegiance. In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

"I call on all my supporters and followers to join me in the promotion of a constructive national spirit
of reconciliation and solidarity.

"May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may be
effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.
This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions
those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it
were otherwise, when then would the disability last? Would it be when the confluent causes which
have brought about that disability are completely set in reverse? Surely, the idea fails to register well
to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary
government is one which has taken the seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of the established government.8 In
its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and
specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The
government structure has remained intact. Succession to the presidency has been by the duly-
elected Vice-president of the Republic. The military and the police, down the line, have felt to be so
acting in obedience to their mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as
being "a rapid, fundamental and violent domestic change in the dominant values and myths of
society in its political institution, social structure, leadership, government activity and policies.11 "
The distinguished A.J. Milne makes a differentiation between constitutional political action and
a revolutionary political action. A constitutional political action, according to him, is a political within a
legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary
political action, on the other hand, acknowledges no such moral commitment. The latter is directly
towards overthrowing the existing legal order and replacing it with something else.12 And what, one
might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted
rules, along with those in the Constitution13 and concerns itself with structures rather than
personalities in the establishments. Accordingly, structure would prefer to the different branches of
the government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the personalities
but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of
the legal order. The constitutionally-established government structures, embracing various offices
under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and
still other entities, including the Armed Forces of the Philippines and the Philippine National Police
and local governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore
the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to be a
living testament and memorial of the sovereign will of the people from whom all government
authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by
time, it grows and copes with the changing milieu. The framers of the constitution could not have
anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in
details, but enunciates the general tenets that are intended to apply to all facts that may come about
but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its
apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent.
The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and
hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to
be an enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with the
vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot
frustrate the inevitable because there is an immense difference between legalism and justice. If only
to secure our democracy and to keep the social order – technicalities must give away. It has been
said that the real essence of justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the
ultimate development of social edifice.17 Anything else defeats the spirit and intent of the
Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.
All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective control
of the entire country, domestically and internationally recognized to be legitimate, acknowledging a
previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been
saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting
President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span
of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the
Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting
sands and might tragically open a Pandora's box more potent than the malaise it seeks to address.
Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection
on our part. In this kind of arena, let us be assumed that we are not overcome by senseless
adventurism and opportunism. The country must not grow oblivious to the innate perils of people
power for no bond can be stretched far too much to its breaking point. To abuse is to destroy that
which we may hold dear.

1 Section 8, Article VII, 1987 Constitution

2 Section 11, 1st paragraph, Article VII, 1987 Constitution

3 Ibid., 2nd paragraph

4 Ortiz vs. Comelec, 162 SCRA 812

5Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January
1998

6 Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7 "Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of
inability to discharge the powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for example, the President is in no
position to sign his name, like he suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we
borrowed this provision, but we feel that in remote situation that the Commissioner has cited
in that the President cannot make a written declaration, I suppose an alternative would be
considered wherein he can so expressly manifest in an authentic manner what should be
contained in a written declaration. xxx

"Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really,
the physical disability of the gentleman was never made clear to the historians. But suppose
 a situation will happen in our country where the President may suffer coma and gets to be
unconscious, which is practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform the duties and functions
of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment
to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such
situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they
have had situations in the United States, including those of President Garfield, President
Wilson, President Roosevelt and President Eisenhower."

(11 RECORDS, PP. 421-423)

8 Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9 Ibid.

10 Ibid.

Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE

11

QUARTERLY

Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453,
12

456 (1973)

Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines
13

Law Journal, 390-391 (1971)

14 16 American Jurisprudence 2d.

15 State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16 John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17
Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No.
18

73748, May 22, 1986.

CONCURRING OPINION

MENDOZA, J.:
In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo.
In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito
Estrada is the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is
merely acting President on account o the former's temporary disability. On the other hand, in G.R.
Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from
investigating charges of plunder, bribery, malversation of public funds, and graft and corruption
against petitioner Estrada on the theory that, being still President, he is immune from suit.

In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria
Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo
contends that the matter is not justiciable because of "the virtual impossibility of undoing what has
been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the
events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In
support of this contention, respondent cites the following statements of this Court concerning the
Aquino government which it is alleged applies to her administration:

. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C. Aquino which is in effective
control of the entire country so that it is not merely a de facto government but is in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy of the present
government. All the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government.2

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional methods
of making such change have proved inadequate or are so obstructed as to be unavailable." It has
been said that "the locus of positive law-making power lies with the people of the state" and from
there is derived" the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution."3

But the Aquino government was a revolutionary government which was established following the
overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the
subject of judicial review. If a court decides the question at all qua court, it must necessarily affirm
the existence and authority of such government under which it is exercising judicial power.4 As
Melville Weston long ago put it, "the men who were judges under the old regime and the men who
are called to be judges under the new have each to decide as individuals what they are to do; and it
may be that they choose at grave peril with the factional outcome still uncertain."5 This is what the
Court did in Javellana v. Executive Secretary6 when it held that the question of validity of the 1973
Constitution was political and affirmed that it was itself part of the new government. As the Court
said in Occena v. COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong
forum. We sit as a Court duty-bound to uphold and apply that Constitution. . . . It is much too late in
the day to deny the force and applicability of the 1973 Constitution."

In contrast, these cases do not involve the legitimacy of a government. They only involve the
legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is
precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the
Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk
about the fact that it was brought about by succession due to resignation or permanent disability of
petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest
for power Macapagal-Arroyo's government is the successful one and is now accepted by the people
and recognized by the community of nations.

But that is not the case here. There was no revolution such as that which took place in February
1986. There was no overthrow of the existing legal order and its replacement by a new one, no
nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that
case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President
Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate
gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session
and, followed by six senators, walked out of the session hall. The remaining senators then declared
the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting
president. The question was whether respondent Cuenco had been validly elected acting president
of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen.
Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto
brought to determine the rightful president of the Senate, among other things, in view of the political
nature of the controversy, involving as it did an internal affair of a coequal branch of the government,
in the end this Court decided to intervene because of the national crisis which developed as a result
of the unresolved question of presidency of the Senate. The situation justifying judicial intervention
was described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by the non-attendance to sessions of about one-half
of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like
mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent
persons with well-known addresses and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been interspersed with actions and
movements provoking conflicts which invite bloodshed.

. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is
highly explosive. It had echoed in the House of Representatives. It has already involved the
President of the Philippines. The situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court, upon which the
hopes of the people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but
to meet the challenge of the situation which demands the utmost of judicial temper and judicial
statesmanship. As herein before stated, the present crisis in the Senate is one that imperatively calls
for the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-
Arroyo's presidency similarly justify, in my view, judicial intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that
there is nothing else that can be done about the assumption into office of respondent Gloria
Macapagal-Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which,
once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the
tube. Literally, it can be put back by opening the bottom of the tube — that is how toothpaste is put in
tubes at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R.
No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office
of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these
cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of
law. In election cases, people accept the decisions of courts even if they be against the results as
proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as
far as the political question argument of respondents is anchored on the difficulty or impossibility of
devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the
Macapagal-Arroyo administration.

This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the
Presidency was in accordance with the Constitution. Art. VII. §8 provides in pertinent parts:

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice-President, the President
of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been elected and qualified.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known and
need not be recounted in great detail here. They began in October 2000 when allegations of wrong
doings involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made
against petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000,
petitioner was impeached by the House of Representatives and, on December 7, impeachment
proceedings were begun in the Senate during which more serious allegations of graft and corruption
against petitioner were made and were only stopped on January 16, 2001 when 11 senators,
sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner. As a
result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out
and Senate President Aquilino Pimentel resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the
following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the
Memorandum of petitioner in G.R. Nos. 146710-15, thus:

1. The decision immediately sent hundreds of Filipinos out into the streets, triggering
rallies that swelled into a massive four-day demonstration. But while anger was
apparent among the middle classes, Estrada, a master of the common touch, still
retained largely passive support among the poorest Filipinos. Citing that mandate
and exploiting the letter of the Constitution, which stipulates that a written resignation
be presented, he refused to step down even after all of the armed forced, the police
and most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC
REVIEW, "More Power to The Powerful", id, at p. 18].
2. When an entire night passed without Estrada's resignation, tens of thousands of
frustrated protesters marched on Malacañang to demand that the president leave
office. An air force fighter jet and four military helicopters buzzed the palace to
remind the president that had lost the reins of power. [FAR EASTERN ECONOMIC
REVIEW, supra, ibid].
3. While the television cameras were focused on the rallies – and the commentators
became lost in reveries about People Power revisited – behind-the-scenes
negotiations had been going on non-stop between military factions loyal to Estrada
and those who advocated a quick coup to depose the President. Chief of Staff Reyes
and Defense Secretary Mercado had made their fateful call to Estrada after luncheon
 attended by all the top commanders. The officers agreed that renouncing Estrada
was the best course, in part because some commanders were urging more drastic
resolution. If the military did not come to a consensus, there loomed the possibility of
factional fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]
4. It finally took a controversial Supreme Court declaration that the presidency was
effectively vacant to persuade Estrada to pack up and move out to his family home in
Manila – still refusing to sign a letter of resignation and insisting that he was the legal
president [FAR EASTERN ECONOMIC REVIEW, "More Power to the
Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President
and the other to the Speaker of the House, indicating that he was unable to perform
the duties of his Office.13

To recall these events is to note the moral framework in which petitioner's fall from power took place.
Petitioner's counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency,
because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who
under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem?
This can only happen because he had lost his moral authority as the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious politicians,
military men, businessmen and/or prelates. It came about because the people, rightly or wrongly,
believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo
Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were
all televised and heard by millions of people throughout the length and breadth of this archipelago.
As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members
resigned, members of the Armed Forces of the Philippines and the Philippine National Police
withdrew their support of the President, while civil society announced its loss of trust and confidence
in him. Public office is a public trust. Petitioner lost the public's trust and as a consequence remained
President only in name. Having lost the command of the armed forces and the national police, he
found Himself vulnerable to threats of mayhem.

This is the confession of one who is beaten. After all, the permanent disability referred to in the
Constitution can be physical, mental or moral, rendering the President unable to exercise the powers
and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's
presidency:

The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa
red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired
of the red tape, the bureaucracy, the intrigue.)15

Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a counter-
attack. He does not have the AFP or the Philippine National Police on his side. He is not only in a
corner – he is also down."16

This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M.
of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-
President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled
but only temporarily unable to discharge the powers and duties of his office and therefore can only
be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, §11.
From this judgment that petitioner became permanently disabled because he had lost the public's
trust, I except extravagant claims of the right of the people to change their government. While Art. II,
§1 of the Constitution says that "sovereignty resides in the people and all government authority
emanates from them," it also says that "the Philippines is a democratic and republican state." This
means that ours is a representative democracy — as distinguished from a direct democracy — in
which the sovereign will of the people is expressed through the ballot, whether in an election,
referendum, initiative, recall (in the case of local officials) or plebiscite. Any exercise of the powers of
sovereignty in any other way is unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide
for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right
to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious
reasons. As the Declaration of Independence of July 4, 1776 of the American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of
Happiness — That to secure these Rights, Governments are instituted among Men, deriving their
just Powers from the Consent of the Governed, that whenever any Form of Government becomes
destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new
Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to
them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient Causes; and
accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are
sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But
when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a
Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such
Government, and to provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a
revolution but the peaceful expression of popular will. The operative fact which enabled Vice-
President Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis,
nay a vacuum, in the executive leadership which made the government rife for seizure by lawless
elements. The presidency was up for grabs, and it was imperative that the rule of succession in the
Constitution be enforced.

But who is to declare the President's permanent disability, petitioner asks? The answer was given by
petitioner himself when he said that he was already tired and wanted no more of popular
demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria
Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own
Executive Secretary declared that petitioner was not only in a corner but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during the
period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents,
namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The
Philippines had two presidents at that time for the simple reason that there were then two
governments — the de facto government established by Japan as belligerent occupant, of which
Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L.
Quezon. That a belligerent occupant has a right to establish a government in enemy territory is a
recognized principle of international law.18 But today we have only one government, and it is the
one set up in the 1987 Constitution. Hence, there can only be one President.
Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of
adjudication that the Court should not formulate a rule of constitutional law broader than is required
by the precise facts to which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity attending the
investigation by the Ombudsman of the criminal charges against petitioner. The test in this
jurisdiction is whether there has been "actual, not merely possible, prejudice"19 caused to petitioner
as a result of publicity. There has been no proof of this, and so I think this claim should simply be
dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.)

VICENTE V. MENDOZA

Associate Justice
 Republic of the Philippines
Congress of the Philippines
Metro Manila

Eighth Congress

Republic Act No. 7080 July 12, 1991

AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

Section 1. Definition of Terms - As used in this Act, the term -

a) Public Officer means any person holding any public office in the Government of the
Republic of the Philippines by virtue of an appointment, election or contract.

b) Government includes the National Government, and any of its subdivisions, agencies or
instrumentalities, including government-owned or -controlled corporations and their
subsidiaries.

c) Person includes any natural or juridical person, unless the context indicates otherwise.

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:

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 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.

See Section 2 As amended by Section

12 of RA No.7659
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 at least Seventy-five million pesos (P75,000,000.00), shall be guilty of the
crime of plunder and shall be punished by life imprisonment with perpetual absolute disqualification
from holding any public office. Any person who participated with said public officer in the commission
of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances 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 stock derived from the deposit or investment thereof forfeited
in favor of the State.

Section 3. Competent Court - Until otherwise provided by law, all prosecutions under this Act shall
be within the original jurisdiction of the Sandiganbayan.

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.

Section 5. Suspension and Loss of Benefits - Any public officer against whom any criminal
prosecution under a valid information under this Act in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from office. Should he be convicted by final
judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he
shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive
during suspension, unless in the meantime, administrative proceedings have been filed against him.

Section 6. Prescription of Crimes - The crime punishable under this Act shall prescribe in twenty
(20) years. However, the right of the State to recover properties unlawfully acquired by public officers
from them or from their nominees or transferees shall not be barred by prescription, laches, or
estoppel.

Section 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.

Section 8. Scope - This Act shall not apply to or affect pending prosecutions or proceedings, or
those which may be instituted under Executive Order No. 1, issued and promulgated on February
28, 1986.

Section 9. Effectivity - This Act shall take effect after fifteen (15) days from its publication in the
Official Gazette and in a newspaper of general circulation.

Approved: July 12, 1991

Void for vagueness
Definition

1) In criminal law, a declaration that a law is invalid because it is not

sufficiently clear. Laws are usually found void for vagueness if, after setting
some requirement or punishment, the law does not specify what is required
or what conduct is punishable. For more information, see vagueness
doctrine.
2) Under vagueness doctrine, a statute is also void for vagueness if a
legislature's delegation of authority to judges and/or administrators is so
extensive that it would lead to arbitrary prosecutions.
3) In property law, a declaration that a deed or other instrument purporting
to affect property rights is invalid because it lacks a sufficiently clear
description of the property.