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), as amended by RA 7659, wishes to impress
1  2 

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. Courts invariably train their sights on this fundamental rule whenever a legislative act is
3 

under a constitutional attack, for it is the postulate of constitutional adjudication. This strong
predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of
the government to encroach upon the duties and powers of another. Thus it has been said that the
presumption is based on the deference the judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume
that the legislature is ever conscious of the borders and edges of its plenary powers, and has
passed the law with full knowledge of the facts and for the purpose of promoting what is right and
advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in
tune with the fundamental law, courts should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a
statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question
of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon we held that as long as there is some basis for the
4 

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." And petitioner has miserably failed in the instant case to
5 

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 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 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; much less do we have to define every word we use. Besides, there is no positive
6 

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, unless it is evident that the
7 

legislature intended a technical or special legal meaning to those words. The intention of the
8 
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 Sandiganbayan that this term is sufficiently
9 

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. But the doctrine does not apply as against legislations
10 

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. With more reason, the doctrine
11 

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. It must be stressed, however, that the "vagueness" doctrine merely
12 

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." The overbreadth
13 

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." The possible harm to society in permitting some unprotected speech
15 

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." In Broadrick v. Oklahoma, the Court ruled that "claims of
16  17 

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." As for the vagueness doctrine, it is said
18 

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." As has been pointed out, "vagueness challenges in the First Amendment context,
20 

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." Consequently, there is no basis for petitioner's claim that this Court review the Anti-
21 

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. It constitutes a departure from the case and controversy requirement of the Constitution
22 

and permits decisions to be made without concrete factual settings and in sterile abstract
contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris
23  24

[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," and is generally disfavored. In
25  26 

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. Sandiganbayan must be mentioned if only to illustrate and
28 

emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law
itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that
will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague.
Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with
no common law meaning or settled definition by prior judicial or administrative precedents; that, for
its vagueness, 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. The use of the
29 

"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. The following exchanges
30 

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 se and it does not matter that such acts are punished in a special law, especially since
37 

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. Echegaray to the 38 

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

Approved 12 July 1991 and took effect 8 October 1991.

1 

Approved 13 December 1993 and took effect 31 December 1993.

2 

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

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

4 

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

5 

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

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

448.

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

SCRA 16, 26.

Resolution of 9 July 2001.

9 

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).

Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L.
22 

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.

Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139,
23 

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.

Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: "If
31 

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.

The Lawphil Project - Arellano Law Foundation

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 SE CRIMES BY CONVERTING THESE TO MALA PROHIBITA, IN
VIOLATION OF THE DUE PROCESS CONCEPT OF CRIMINAL RESPONSIBILITY. 5

The provisions of law involved

Section 2 of R.A. No. 7080 provides:

Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total
value of at least Fifty million 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 conspiracy 21 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 process 28 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 majority 63 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."73 Series 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;79 and homicide, by reclusion temporal.80 Hence, the
increase in the penalty imposed when these two are considered together as a special complex crime
is not too far from the penalties imposed for each of the single offenses. In contrast, as shown by the
examples above, there are instances where the component crimes of plunder, if taken separately,
would result in the imposition of correctional penalties only; but when considered as forming part of a
series or combination of acts constituting plunder, could be punishable by reclusion perpetua to
death. The disproportionate increase in the penalty is certainly violative of substantive due process
and constitute a cruel and inhuman punishment.

It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has reference to the
acquisition of property (by the accused himself or in connivance with others) "by any combination or
series" of the "means" or "similar schemes" enumerated therein, which include the following:

xxx

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
forms of interest or participation including the promise of future employment or any business
enterprise or undertakings;

5. By establishing agricultural, industrial or commercial monopolies or other combination and/or

implementation of decrees and orders intended to benefit particular persons or special interests;

xxx

The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts. They
involve the exercise of the right to liberty and property guaranteed by Article III, Section 1 of the
Constitution which provides that "No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the laws." Receiving or
accepting any shares of stock is not per se objectionable. It is in pursuance of civil liberty, which
includes "the right of the citizen to be free to use his faculties in all lawful ways; x x x to earn his
livelihood by any lawful calling; to pursue any avocation, and/or that purpose, to enter into all
contracts which may be proper, necessary and essential to his carrying out these purposes to a
successful conclusion.81 Nor is there any impropriety, immorality or illegality in establishing
agricultural, industrial or commercial monopolies or other combination and/or implementation of
decrees and orders even if they are intended to benefit particular persons or special interests. The
phrases "particular persons" and "special interests" may well refer to the poor, 82 the indigenous
cultural communities,83 labor,84 farmers,85 fisherfolk,86 women,87 or those connected with education,
science and technology, arts, culture and sports. 88

In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code
are punishable because, as specifically defined therein, they are "on restraint of trade or commerce
or to prevent by artificial means of free competition in the market, or the object is "to alter the price"
of any merchandise "by spreading false rumors," or to manipulate market prices in restraint of trade.
There are no similar elements of monopolies or combinations as described in the Plunder Law to
make the acts wrongful.

If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or more"
acts, and "combination as defined in the Webster’s Third New International Dictionary is "the result
or product of combining one thing with another," 89 then, the commission of two or more acts falling
under paragraphs (4) and (5) of Section 1(d) would make innocent acts protected by the Constitution
as criminal, and punishable by reclusion perpetua to death.

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.103 Relying heavily on legislative history, the US Supreme Court in that
case construed "pattern" as requiring "continuity plus relationship." 104 The US Supreme Court
formulated the "relationship requirement" in this wise: "Criminal conduct forms a pattern if it
embraces criminal acts that have the same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by distinguishing characteristics and are not
isolated events."105 Continuity is clarified as "both a closed and open-ended concept, referring either
to a closed period of repeated conduct, or to past conduct that by its nature projects into the future
with a threat of repetition."106

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 se crimes. Since intent is an essential element of these crimes, then, with more
reason that criminal intent be established in plunder which, under R.A. No. 7659, is one of the
heinous 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 counsels 134 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 x 139

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

 Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his column "Sounding
1

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.

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

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.

 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE

42

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.

 THE OVERBREADTH DOCTRINE, Treatise on Constitutional Law – Substance and

43

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.

 RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE

47

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.

 The transcript of Stenographic Notes of the Hearing in Criminal Case No. 26561 on June
56

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.

 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND

62

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.

 RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND

70

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.

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

99

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.

108
 The issue involved in this case was whether Northwestern Bell Telephone Co., Inc. was
liable under the RICO Law for bribing the members of the Minnesota Public Utilities
Commission to approve rates for the company in excess of a fair and reasonable amount.
The U.S. Supreme Court reversed the District Court of Minnesota and held that (1) to prove
a "pattern of racketeering activity" within the meaning of RICO, it must be shown that the
predicate acts of racketeering activity are related and that they amount to or pose a threat of
continued criminal activity; (2) it is not only by proof of multiple schemes that continuity of
criminal activity may be shown; (3) a pattern of racketeering activity may be shown
regardless of whether the racketeering activities are characteristic of "organized crime"; and
(4) remand was necessary because, 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".

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

(1991); United States v. Pungitore, 910 F.2d 1084 (3rd Cir. 1990), cert. denied, 11 S.Ct.
2009-11 (1991); United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 111 S. Ct.
130 (1990). All cases cited in Moran, Christopher, infra.

 Bauerschmidt, Joseph E., Mother of Mercy – Is this the End of RICO? – Justice Scalia
110

Invites Constitutional Void-for-Vagueness Challenge to RICO "Pattern", 65 NOTRE DAME

LAW REVIEW 1106 (1990).
  Moran, Christopher. Is the "Darling" in Danger? "Void for Vagueness" – The
111

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.

 Luskin, Robert D. Behold, The Day of Judgment: Is the RICO Pattern Requirement Void
115

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.

 In People vs. Echegaray (267 SCRA 682) the word "heinous" was traced to the early
125

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)

 WHEREAS, the crimes punishable by death under this Act are heinous for being grievous,
126

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 creates 27 and provide some reasonably
ascertainable standards of guilt.28 It should not admit of such a double meaning that a citizen may act
on one conception of its requirements and the courts on another. 29

I agree with the observation of Mr. Justice Kapunan that "resort to the dictionary meaning of the
terms ‘combination’ and ‘series’ as well as recourse to the deliberations of the lawmakers only serve
to prove that R.A. No. 7080 failed to satisfy the requirement of the Constitution on clarity and
definiteness." The deliberations of our law-makers, as quoted verbatim in Justice Kapunan's Dissent,
indeed, failed to shed light on what constitute "combination" and "series." 30

I believe this is fatal.

The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts."
As can be gleaned from the Record of the Senate, the determining factor of R.A. 7080 is
the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass
ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person
cannot be prosecuted for the crime of plunder if there is only a single criminal act. 31

Considering that without plurality of overt or criminal acts, there can be no crime of plunder, due
process of law demands that the terms "combination" and "series" be defined with exactitude in the
law itself. Equating these terms with mere "plurality" or "two or more," is inaccurate and speculative.
For one, a "series" is a group of usually three or more things or events standing or succeeding in
order and having like relationship to each other. 32 The Special Prosecution Division Panel defines it
as "at least three of the acts enumerated under 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

1
 As amended by Republic Act No. 7659 - "An Act to Impose the Death Penalty on Certain
Heinous Crimes, Amending for that Purpose the Revised Penal Code, other Special Penal
Laws and for other Purpose (1993).

2
 Section 1, Article III of the 1987 Constitution.

3
 Cruz, Constitutional Law, 1995 Ed. p. 95.
4
 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2nd 368.

5
 Section 1 (b) Rule XVIII, Revised Rules of the Sandiganbayan

"The unanimous vote of three Justices in a division shall be necessary for the
rendition of a judgment or order. In the event that three Justices do not reach a
unanimous vote, the Presiding Justice shall designate by raffle two justices from
among the other members of the Sandiganbayan to sit temporarily with them forming
a special division of five Justices, and the vote of a majority of such special division
shall be necessary for the rendition of a judgment or order.

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.

 29 Am Jur 2d Section 168, p. 192. Re Winship, 397 US 358, 25 L Ed 2d 368; State v.
8

Krantz, 498 US 938, 112 L Ed 2d 306.

 In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the crime must be the product of
9

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.

17
 See 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)".

 "Winters v. People of State of Newyork 333 US 507; 92 L. Ed. 840 -- "A penal statute must
25

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).

 "Senator Paterno. Mr. President, not too clear yet on the reason for trying to define a crime
31

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.

 22 C.J.S. §24 (2); People v. Bevilacqua, 170 N.Y. S. 2d 423; Lanzetta v. State of New
37

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 process 1 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.12 Under the Plunder Law, a crusading public officer who steps on too many important
toes in the course of his campaign could be prosecuted for a capital offense, while for exactly the
same acts, an official who tries to please everybody can be charged whether administratively or for a
much lighter offense.

For instance, direct bribery under Article 210 of the Revised Penal Code is punished with prision
mayor in its medium or minimum periods, prision correccional in its medium period, or prision
mayor in its minimum period, depending on the manner of commission. 13 Indirect bribery under
Article 211 is punished with prision correccional in its medium and maximum periods.14 Under the
Plunder Law, the penalty is reclusion perpetua to death. The void-for-vagueness infirmity becomes
all the more apparent if the proscribed activity is "misuse of public funds." The prosecutor is given
broad powers of selective law enforcement. For "misuse," exactly the same acts could be punished
with death under the Plunder Law, or mere dismissal with prejudice to future government
employment under the Civil Service Law.

The provision in the Plunder Law on "implementation of decrees and orders intended to benefit
particular persons or special interests" also 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.

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

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 correccional in 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."

 "The penalties of prision correccional in its medium and maximum periods, suspension and
14

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.

 Republic Act No. 7080, "Section 4. Rule of Evidence. –-- For purposes of establishing the
18

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.

 See Keyshian v. Board of Regents of the University of the State of New York, 385 U.S.
21

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.

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

26

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.1 He was charged, in eight cases filed with the Sandiganbayan, with
various offenses committed while in office, among them plunder, for allegedly having amassed ill-
gotten wealth in the amount of P4.1 billion, more or less. He moved to quash the information for
plunder on the ground that R.A. No. 7080, otherwise called the Anti-Plunder Law, is unconstitutional
and that the information charges more than one offense.

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 petitioner 27 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 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. 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 correccional in its minimum period or a fine ranging from P200 to P1,000 or both),

– combined with –

one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code
with prision correccional in its minimum period or a fine ranging from P200 to P6,000, or both),

-equals-
plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080.

c. One act of possession of prohibited interest by a public officer (penalized with prision

correccional in its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the
Revised Penal Code),

– combined with –

one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised
penal Code with prision correccional in its minimum period, or a fine of P200 to P1,000, or both,

- equals -

plunder, punished by reclusion perpetua to death, and forfeiture of assets)44

But this is also the case whenever other special complex crimes are created out of two or more
existing crimes. For example, robbery with violence against or intimidation of persons under Art. 294,
par. 5 of the Revised Penal Code is punished with prision correccional in its maximum period (4
years, 2 months, and 1 day) to prision mayor in its medium 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

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

1

G.R. No. 146715, March 2, 2001.

2
 CONST., ART., Art. II, §27.

3
 United 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).

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

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).

 United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697, 707 (1987). See also People
14

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.

 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71
17

L.Ed.2d 362, 369 (1982).

 United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960). The paradigmatic
18

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).

20
 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 rulings on whether statutes may be
applied to particular litigants on particular facts.

 Const., Art. VIII, §§1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158
21

(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 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 U.S.
22

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
23

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).

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

(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.

 Deliberations of the Conference Committee on Constitutional Amendments and Revision of

32

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 series as a repetition or recurrence of the same thing at least twice. 11 As a matter
of fact, the same understanding of those terms also prevailed during the Senate deliberations on
Senate Bill No. 733 (Plunder) earlier held on June 6, 1989. 12 The Records of those deliberations
speak for themselves.

It is true that during the deliberations in the Senate, the late Senator Neptali A. Gonzales initially
raised concerns over the alleged vagueness in the use of the terms combination and series. I
respectfully submit, however, that the reliance13 of petitioner on such concerns is misplaced. That
portion of the interpellations, evincing the late senator’s reservations on the matter, had taken place
during the session of June 5, 1989.14 And the clarificatory remarks of Senate President Jovito R.
Salonga and Senators Wigberto Tañada, Alberto Romulo and Ernesto 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, illegal recruitment by
syndicate, large-scale illegal recruitment, organized/syndicated crime group, and swindling by a
syndicate. Thus, he insinuates that, because RA 7080 has failed to specify precisely the minimum
number of malefactors needed for an offense to be properly classified as plunder, the law is vague
or has somehow failed to meet the standard for penal laws.

The aforequoted discourse would appear to be incongruous, if not totally misleading. As pointed out
during the Oral Argument on September 18, 2001, the crime of plunder can be committed by a
public officer acting alone. Section 2 of RA 7080 reads as follows: "Definition of the Crime of
Plunder; Penalties. – Any public officer who, by himself or in connivance with x x x." Thus, the
insistence on a mathematical specification or precise quantification is essentially without basis. And
lest anyone believe that the Anti-Plunder Law is unusual in this respect, let me just recall that the
RICO law, to which petitioner made repeated references in his Amended Petition, can likewise be
violated by a single individual. 18

Not Oppressive
or Arbitrary

Neither can it be said that RA 7080 is oppressive or arbitrary for imposing a more severe penalty on
a combination or series of the offenses enumerated in Section 1(d) of the law, than would otherwise
be imposed if the said offenses were taken separately. As Mr. Justice Mendoza lucidly pointed out in
his interpellation during the Oral Argument, the Anti-Plunder Law is merely employing a
familiar technique or feature of penal statutes, when it puts together what would otherwise be
various combinations of traditional offenses already proscribed by existing laws and attaching
thereto higher or more severe penalties than those prescribed for the same offenses taken
separately.

Here, Mr. Justice Mendoza is referring to special complex crimes like rape with homicide or robbery
with homicide. During the Oral Argument, he asked whether petitioner’s counsel was in fact
suggesting that such special complex crimes -- a very important part of the Revised Penal Code and
well-entrenched in our penal system -- were violative of due process and the constitutional
guarantees against cruel and unusual punishment and should also be struck down. It goes without
saying that the legislature is well within its powers to provide higher penalties in view of the grave
evils sought to be prevented by RA 7080.

Innocent Acts Not

Penalized by RA 7080

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.

x x x           x x x          x x x

"(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in which he
is prohibited by the Constitution or by any law from having any interest.

x x x x x x x x x."

On the other hand, the prohibited acts under item 5 have antecedents in the Revised Penal Code’s
interdiction against monopolies and combinations in restraint of trade. Clearly, the acts dealt with in
Items 4 and 5 of Section 1(d) are in no wise the innocent or innocuous deeds that petitioner would
have us mistake them for.

RA 7080 Not Suffering from Overbreadth

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

x x x           x x x          x x x

"What a plaintiff or prosecutor must prove is continuity of racketeering activity, or its

threat, simpliciter. This may be done in a variety of ways, thus making it difficult to formulate in the
abstract any general test for continuity. We can, however, begin to delineate the requirement.

"‘Continuity’ is both a closed and open-ended concept, referring either to a closed period of repeated
conduct, or to past conduct that by its nature projects into the future with a threat of repetition. x x x.
It is, in either case, centrally a temporal concept – and particularly so in the RICO context,
where what must be continuous, RICO’s predicate acts or offenses, and the relationship these
predicates must bear one to another, are distinct requirements. A party alleging a RICO violation
may demonstrate continuity over a closed period by proving a series of related predicates extending
over a substantial period of time. Predicate acts extending over a few weeks or months and
threatening no future criminal conduct do not satisfy this requirement. Congress was concerned in
RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be
established in this way. In such cases, liability depends on whether the threat of continuity is
demonstrated."24 (italics and underscoring supplied)

However, in RA 7080, precisely because of the sheer magnitude of the crimes in question and their
extremely deleterious effects on society, the 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).’

x x x           x x x          x x x

"According to the Explanatory Note of Senate Bill No. 733, the crime of plunder, which is a ‘term
chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the
use of high office for personal enrichment, committed through a series [or combination] of acts done
not in the public eye but in stealth or secrecy over a period of time, that may involve so many
persons, here and abroad, and which touch so many states and territorial units.’ For this reason, it
would be unreasonable to require the prosecution to prove all the overt and criminal acts committed
by the accused as part of an ‘over-all unlawful scheme or conspiracy’ to amass ill-gotten wealth as
long as all the elements of the crime of plunder have been proven beyond reasonable doubt, such
as, the combination or series of overt or criminal acts committed by a public officer alone or in
connivance with other persons to accumulate ill-gotten wealth in the amount of at least Fifty Million
Pesos.

"The statutory language does not evince an intent to do away with the constitutional presumption of
guilt nor to lower the quantum of proof needed to establish each and every element or ingredient of
the crime of plunder."45

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.

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

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.

20
 The 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.

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

266 SCRA 167, January 10, 1997.

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

1999.

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

 Quoted portions are excerpts from Senator Tañada’s speech sponsoring Senate Bill No.
32

733, Records of the Senate, June 5, 1989.

33
 During 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.

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

36

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

37
 Ibid., at p. 2

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

June 5, 1989.

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

39

1987 Constitution.

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

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.

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

43

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, March
46

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

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

 Respondent’s Memorandum, pp. 84-85. The solicitor general cites illegal recruitment as an
48

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.