By Obiter07
This is the current and popular term on development, the PPP or public private
partnership for government projects. It
is timely that we now, as a result of the Priority Development Assistance Fund (PDAF) scam, get to see the
darker side of such a partnership which can result in the crime of plunder.
Tuesday, September 17, 2013
PUBLIC-PRIVATE PARTNERSHIP IN CRIME: Plunder
DEFINITION OF PLUNDER
Under
Section 2 of REPUBLIC ACT NO. 7080, AN ACT DEFINING AND PENALIZING THE CRIME OF
PLUNDER, “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 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 Republic Act No.
7659)
As
stated in the law, a private person can be charged for plunder only if he
participates with the public officer in the commission of the offense. And we are not concerned with petty amounts
here, the ill-gotten wealth should amount to at least P50,000,000. It is hard to even imagine how a public
officer can get his hands on such an amount and harder still to think that he
had to have access to so much more in order to have something left over to
share with his private accomplice.
COMMISSION
And how is this extravagant and despicable crime committed?
“SECTION 1. Definition
of Terms. — As used in this Act, the term — xxx
d)
Ill-gotten
wealth means any asset, property, business enterprise or material possession of
any person within the purview of Section Two (2) hereof [see above], acquired
by him directly or indirectly through dummies, nominees, agents, subordinates
and/or business associates by any combination or series of the following means
or similar schemes :
1)
Through
misappropriation, conversion, misuse, or malversation of public funds or raids
on the public treasury;
2)
By receiving,directly or indirectly, any commission, gift, share, percentage, kickbacks or
any other form of pecuniary benefit from any person and/or entity in connection
with any government contract or project or by reason of the office or position
of the public officer concerned;
3)
By the illegal
or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities or
government-owned or -controlled corporations and their subsidiaries;
4)
By obtaining,
receiving or accepting directly or indirectly any shares of stock, equity or
any other form of interest or participation including promise of future
employment in any business enterprise or undertaking;
5)
By
establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
6)
By taking
undue advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines.
“
EVIDENCE
OF COMMISSION
As
to how it is proven, it will be enough if a pattern of overt or criminal acts
is shown:
“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.”
It
appears broad enough to cover any wrongdoing and this is the reason why the law
was questioned before the Supreme Court by a former President who was charged
and eventually convicted for plunder.
One of the issues Joseph Ejercito Estrada raised was that the law was
“void for vagueness.” The Supreme Court
in ESTRADA, vs. SANDIGANBAYAN, et al. [G.R. No. 148560. November 19, 2001] disagreed and upheld the law, stating that this “doctrine cannot be invoked where
the assailed statute is clear and free from ambiguity, as in this case.” The Court had this to say on how the crime
is established to have been committed:
“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 P50,000,000.00. 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
P50,000,000.00. 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 P50,000,000.00 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.”
PENALTIES
The
current issue now brought about by the PDAF scam is whether or not the
Senators, once they are charged of plunder, can be suspended as the law
provides thus:
“SECTION 5. Suspension
and Loss of Benefits. — Any public officer against whom any criminal
prosecution under a valid information under this Act in whatever stage of
execution and mode of participation, is pending in court, shall be suspended
from office. Should he be convicted by
final judgment, he shall lose all retirement or gratuity benefits under any
law, but if he is acquitted, he shall be entitled to reinstatement and to the
salaries and other benefits which he failed to receive during suspension,
unless in the meantime, administrative proceedings have been filed against him.”
Under
the Constitution, lawmakers are immune from arrest but only for crimes
punishable by imprisonment of not more than six years (Article VI, Section 11).
Plunder is punishable by life imprisonment.
Even
if the perpetrators get away with the crime due to prescription, their assets
can still be subject to recovery by the government.
“SECTION 6. Prescription
of Crimes. — The crime punishable under this Act shall prescribe in twenty (20)
years. However, the right of the State
to recover properties unlawfully acquired by public officers from them or from
their nominees or transferees shall not be barred by prescription, laches, or
estoppel.”
When
the Estrada case was decided more
than ten years ago, the Supreme Court already railed against the venalities of
public office as epitomized by a President charged with this offense:
“xxx 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.”
In
2001, Senator Jose “Jinggoy” Estrada was charged for plunder together with his
father, former President Estrada. The
older Estrada was convicted and pardoned in 2007 then ran for and was elected
Mayor in 2013. The younger Estrada, a
re-elected Senator even after being previously charged for plunder, is again
charged with the same offense. It almost
seems to be a rerun of a bad script with the same ending of a movie which we
have already seen before which begins with indignation, moving to conviction,
resulting in redemption and then, a mind-boggling, re-election. Let us all make it different this time and
stop at incarceration.
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