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 suggested[46] that petitioner cannot mount a “facial challenge” to the Plunder Law, and that “facial” or “on its face” challenges seek the total invalidation of a statute.[47] Citing Broadrick v. Oklahoma,[48] it is also opined that “claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words” and that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.”   For this reason, it is argued further that  “on its face invalidation of statutes has been described as ‘manifestly strong medicine,’ to be employed ‘sparingly and only as a last resort.’”  A reading of Broadrick, however, shows that the doctrine involved therein was the doctrine of overbreadth.  Its application to the present case is thus doubtful considering that the thrust at hand is to determine whether the Plunder Law can survive the vagueness challenge mounted by petitioner. A noted authority on constitutional law, Professor Lockhart, explained that “the Court will resolve them (vagueness challenges) in ways different from the approaches it has fashioned in the law of  overbreadth.”[49] Thus, in at least two cases,[50] the U.S. courts allowed the facial challenges to vague criminal statutes even if these did not implicate free speech

In Kolender v. Lawson,[51] petitioners assailed the constitutionality of a California criminal statute which required persons who loiter or wander on the streets to provide a credible and reasonable identification and to account for their presence when requested by a peace officer under circumstances that would justify a valid stop.  The U.S. Supreme Court held that said statute was unconstitutionally vague on its face within the meaning of the due process clause of the Fourteenth Amendment because it encourages arbitrary enforcement by failing to clarify what is contemplated by the requirement that a suspect provide a “credible and reasonable identification.” Springfield vs. Oklahoma[52] 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;

x x x

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 law[55] to resolve these basic questions.

Even men steeped in the knowledge of the law are in a quandary as to what constitutes plunder.  The Presiding Justice of the Sandiganbayan, 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?

x x x

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.

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.[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]

x x x

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:

x x x

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;

x x x

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.”[119]119 119 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 court[121] 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 crimes[125] as pronounced in one of its whereas clauses.[126]

The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special law does not necessarily make the same mala prohibita where criminal intent is not essential, although the term refers generally to acts made criminal by special laws.  For there is a marked difference between the two.  According to a well-known author on criminal law:

There is a distinction between crimes which are mala in se, or wrongful from their nature, such as theft, rape, homicide, etc., and those that are mala prohibita, or wrong merely because prohibited by statute, such as illegal possession of firearms.

Crimes mala in se are those so serious in their effects on society as to call for almost unanimous condemnation of its members; while crimes mala prohibita are violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society.  (Bouvier’s Law Dictionary, Rawle’s 3rd Revision)

(1)  In acts mala in se, the intent governs; but in those mala prohibit the only inquiry is, has the law been violated?  (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)

Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as in illegal possession of firearms.  (People vs. Conosa, C.A., 45 O.G. 3953)

(2) The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code.  When the acts are inherently immoral, they are mala in se, even if punished by special laws.  On the other hand, there are crimes in the Revised Penal Code which were originally defined and penalized by special laws.  Among them are possession and use of opium, malversation, brigandage, and libel.[127]

The component acts constituting plunder, a heinous crime, being inherently wrongful and immoral, are patently mala in se, even if punished by a special law and accordingly, criminal intent must clearly be established together with the other elements of the crime; otherwise, no crime is committed.  By eliminating mens rea, R.A. 7080 does not require the prosecution to prove beyond reasonable doubt the component acts constituting plunder and imposes a lesser burden of proof on the prosecution, thus paving the way for the imposition of the penalty of reclusion perpetua to death on the accused, in plain violation of the due process and  equal protection clauses of the Constitution.  Evidently, the authority of the legislature to omit the element of scienter in the proof of a crime refers to regulatory measures in the exercise of police power, where the emphasis of the law is to secure a more orderly regulations of the offense of society, rather than the punishment of the crimes.  So that in mala prohibita prosecutions, the element of criminal intent is a requirement for conviction and must be provided in the special law penalizing what are traditionally mala in se crimes.  As correctly pointed out by petitioner,[128] citing U.S. Supreme Court decisions, the Smith Act was ruled to require “intent” to advocate[129] and held to require knowledge of illegal advocacy.[130] And in another case,[131] and ordinance making 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 Law[135] and petitioner himself voted for its passage when he was still a Senator would not in any put him in estoppel to question its constitutionality.  The rule on estoppel applies to questions of fact, not of law.[136] Moreover, estoppel should be resorted to only as a means of preventing injustice.[137] To hold that petitioner is estopped from questioning the validity of R.A. No. 7080 because he had earlier voted for its passage would result in injustice not only to him, but to all others who may be held liable under this statute.  In People vs. Vera,[138] citing  the U.S. case of Attorney General v. Perkins, the Court held:

x x x The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation upon their government, a statute enacted by the people of Michigan is an adequate statute relied on in justification is unconstitutional, it is a statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it it had never been enacted.  the constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow.  x x 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.


[1] Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his column “Sounding Board”, Today, September 26, 2001, p. 6.

[2] An Act to Impose the Death Penalty on Certain Heinous Crimes, amending for that purpose the Revised Penal Code and Other Special Penal Laws, namely: Dangerous Drugs Act, Crime of Plunder, and Anti-Carnapping Act (1993).

[3] 87 O.G. 38, pp. 5488-5490 (1991).

[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.

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

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

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

[27] See Id.

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

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

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

[29] ART. III,   Section 14.

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

[31] 347 U.S. 612 (1954).

[32] Id., at 617.

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

[34] Ibid.

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

[36] Ibid.

[37] Kolender, supra.

[38] Ibid.

[39] Section 2.

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

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

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

[43] THE OVERBREADTH DOCTRINE, Treatise on Constitutional Law – Substance and Procedure, Vol. IV (1992), pp. 25-31; 36-37.

[44] See Note 42.

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

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

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

[48] 413 U.S. 601 [1973].

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

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

PJ Garchitorena:

                                                x x x

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.

x x x

[57] Infra.

[58] In his column  on the April 25, 2001 issue of Today, Fr. Bernas stated:

                                                            x x x

            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.

                                                            x x x

            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.

[62] RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991, pp. 39-40.

[63] Decision, p. 14.

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

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

[66] Reply to Comment, p. 33.

[67] Ibid.

[68] Id.

[69] Id.

[70] RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7, 1991, p. 40.

[71] Ibid.

[72] Id.

[73] Id.

[74] Id.

[75] Id., at 40-41.

[76] Id., at 42-43.

[77] Article III of the Constitution provides:

Sec. 1.  No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.           

x x x

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.

[99] Atkinson, Jeff. “RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS,” § § 1961-68:  Broadest of the Federal Criminal Statutes, 69 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 1 (1978).

[100] 18 U.S.C. § 1962 (1970):

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

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

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

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

[101] Id., at § 1961(5).

[102] See RECORDS JOINT CONFERENCE COMMITTEE MEETING, May 7, 1991, p. 12.

[103] Northwestern, supra.

[104] Id., at  239:

            RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.  Citing 116 Cong Rec 18940 (1970)

[105] Id., at  240.

[106] Id.,at 241.

[107] Separate Concurring Opinion, pp. 255-256.

[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".

[109] See United States v. Masters, 924 F.2d 1362 (7th Cir.), cert. denied 11 S. Ct. 2019 (1991); United States v. Pungitore, 910 F.2d 1084 (3rd Cir. 1990), cert. denied, 11 S.Ct. 2009-11 (1991); United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 111 S. Ct. 130 (1990).  All cases cited in Moran, Christopher, infra.

[110] Bauerschmidt, Joseph E., Mother of Mercy – Is this the End of RICO? – Justice Scalia Invites Constitutional Void-for-Vagueness Challenge to RICO “Pattern”, 65 NOTRE DAME LAW REVIEW 1106 (1990).

[111] Moran, Christopher.  Is the “Darling” in Danger? “Void for Vagueness” – The Constitutionality of the RICO Pattern Requirement, 36 VILLANOVA LAW REVIEW 1697 (1991) citing:

COLO. REV. STAT. § 18-17-103(3): “Pattern of racketeering activity” means engaging in at least two acts of racketeering activity which are related to the conduct of the enterprise, if at least one of such acts occurred in this state after July 1, 1981, and if the last of such acts occurred within ten years (excluding any period of imprisonment) after a prior act of racketeering activity.

CONN. GEN. STAT. ANN. § 53-394(e) (West 1985): “Pattern of racketeering activity” means engaging in at least two incidents of racketeering activity that have the same or similar purposes, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within five years after a prior incident of racketeering conduct.

GA. CODE ANN. § 16-14-3(8) (Supp. 1991): “Pattern of racketeering activity” means engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after July 1, 1980, and that the last of such incidents occurred within four years, excluding any periods of imprisonment, after the commission of a prior incident of  racketeering activity.

IDAHO CODE § 18-7803(d) (1987): “Pattern of racketeering activity” means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one (1) of such incidents occurred after the effective date of this act and that the last of such incidents occurred within five (5) years after a prior incident of racketeering conduct.

IND. CODE ANN. § 35-45-6-1 (West 1986): “Pattern of racketeering activity” means engaging in at least two (2) incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics [sic] that are not isolated incidents.  However, the incidents are a pattern of racketeering activity only if at least one (1) of the incidents occurred after August 31, 1980, and if the last of the incidents occurred within five (5) years after a prior incident of racketeering activity.

LA. REV. STAT. ANN. § 15:1352 (C) (West Supp. 1992): “Pattern of drug racketeering activity” means engaging in at least two incidents of drug racketeering activity that have the same or similar intents, results, principals, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such occurs after a prior incident of drug racketeering activity.

MISS. CODE ANN. § 97-43-3(d) (Supp 1989): “Pattern of racketeering activity” means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one (1) of such incidents occurred after the effective date of this chapter and that the last of such incidents occurred within five (5) years after a prior incident of racketeering conduct.

N.C. GEN. STAT. § 75D-3(b) (1990): “Pattern of racketeering activity means engaging in at least two incidents of racketeering activity that have the same or similar purposes, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated and unrelated incidents, provided at least one of such incidents occurred after October 1, 1986, and that at least one other of such incidents occurred within a four-year period of time of the other, excluding any periods of imprisonment, after the commission of a prior incident of racketeering activity.

OR. REV. STAT. § 166.715(4) (1990): “Pattern of racketeering activity” means engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents, provided at least one of such incidents occurred after November 1, 1981, and that the last of such incidents occurred within five years after a prior incident of racketeering activity.

TENN. CODE ANN. § 39-12-203(6) (1991): “Pattern of racketeering activity” means engaging in at least two (2) incidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents; provided, that at least one (1) of such incidents occurred after July 1, 1986, and that the last of such incidents occurred within two (2) years after a prior incident of racketeering conduct.

WASH. REV. CODE ANN. § 9A.82.010(15) (1988): “Pattern of criminal profiteering activity” means engaging in at least three acts of criminal profiteering, one of which occurred after July 1, 1985, and the last of which occurred within five years, excluding any period of imprisonment, after the commission of the earliest act of criminal profiteering.  In order to constitute a pattern, the three acts must have the same or similar intent, results, accomplices, principals, victims or methods of commission, or be otherwise interrelated by distinguishing characteristics including a nexus to the same enterprise, and must not be isolated events.

[112] Id., citing:

CAL. PENAL CODE § 186.2(b) (West 1988): “Pattern of criminal profiteering activity” means engaging in at least to incidents of criminal profiteering, as defined by this act, which meet the following requirements: (1) Have the same or similar purpose, result, principals, victims or methods of commission, or are otherwise interrelated by distinguishing characteristics[;] (2) Are not isolated events[; and] (3) Were committed as criminal activity of organized crime.

[113] Id., citing:

DEL. CODE ANN. Tit. 11. § 1502(5) (1987): “Pattern of racketeering activity” shall mean 2 or more incidents of conduct:  a. That: 1. Constitute racketeering activity; 2. Are related to the affairs of the enterprise; 3. Are not so closely related to each other and connected in point of time and place that they constitute a single event; and b. Where: 1. At least 1 of the incidents of conduct occurred after July 9, 1986; 2. The last incident of conduct occurred within 10 years after a prior occasion of conduct . . .

OHIO REV. CODE ANN. §2923.31(E) (Anderson Supp. 1991): “Pattern of corrupt activity” means two or more incidents of corrupt activity, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event.  At least one of the incidents forming the pattern shall occur on or after January 1, 1986.  Unless any incident was an aggravated murder or murder, the last incidents forming the pattern shall occur within six years after the commission of any prior incident forming the pattern, excluding any period of imprisonment served by any person engaging in the corrupt activity.

OKLA. STAT. ANN. tit. 22, § 1402(5) (West Supp. 1992):  Pattern of racketeering activity” means two or more occasions of conduct: a. that include each of the following: (1) constitute racketeering activity, (2) are related to the affairs of the enterprise, (3) are not isolated, (4) are not so closely related to each other and connected in point of time and place that they constitute a single event, and b. where each of the following is present:  (1) at least one of the occasions of conduct occurred after November 1, 1988, (2) the last of the occasions of conduct occurred within three (3) years, excluding any period of imprisonment served by the person engaging in the conduct, of a prior occasion of conduct . .  .

WIS. STAT. ANN. § 946.82(3) (West Supp. 1991): “Pattern of racketeering activity” means engaging in at least 3 incidents of racketeering activity that the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, provided at least one of the incidents occurred after April 27, 1982 and that the last of the incidents occurred within 7 years after the first incident of racketeering activity.  Acts occurring at the same time and place which may form the basis for crimes punishable under more than one statutory provision may count for only one incident of racketeering activity.

[114] Id., citing:

MINN. STAT. ANN. §609.902(6) (West Supp. 1992): “Pattern of criminal activity” means conduct consisting constituting three or more criminal acts that: (1) were committed within ten years of the commencement of the criminal proceedings; (2) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense; and (3) were either: (i) related to one another through a common scheme or plan or shared criminal purpose or (ii) committed, solicited, requested, importuned, or intentionally aided by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in these activities.

N.Y. PENAL LAW §460.10(4) (McKinney 1989): “Pattern of criminal activity” means conduct engaged in by persons charged in an enterprise corruption count constituting three or more criminal acts that: (a) were committed within ten years of the commencement of the criminal action; (b) are neither isolated incidents, nor so closely related and connected in point in time or circumstance of commission as to constitute a criminal offense or criminal transaction . . . ; and (c) are either: (i) related to one another through a common scheme or plan or (ii) were committed, solicited, requested, importuned or intentionally aided by persons acting with the mental culpability required for the commission thereof and associated with or in the criminal enterprise.

[115] Luskin, Robert D. Behold, The Day of Judgment:  Is the RICO Pattern Requirement Void for Vagueness?  64 ST. JOHN’S LAW REVIEW 779 (1990).

[116] Memorandum for Petitioner, p. 47; TSN, Oral Arguments, September 18, 2001, see pp. 224-233.

[117] Memorandum for Petitioner, p. 47.

[118] See Kolender v. Lawson, supra

[119] 18 U.S.C. § 1961 (5). .

[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.

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

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

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

[128] Petitioner’s  Memorandum, p. 81.

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

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

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

[132] 342 U.S. 246 (1952).

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

[134] Atty. Rene A.V. Saguisag.

[135] Senate Bill No. 733.

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

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

[138] 65 Phil. 56 (1937).

[139] Id., at 90.

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

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

[142] One of the reliefs sought in the Prayer contained in the Petition (at p. 37) and in Petitioner’s Memorandum (at p. 84) is for the quashal of the Information in Criminal case No. 26558 for being 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]).