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
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.
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.”
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.