148560_mendoza

Mendoza, J., concurring in the judgment:

Before I explain my vote, I think it necessary to restate the basic facts.

Petitioner Joseph Ejercito Estrada was President of the Philippines until January 20, 2001 when he was forced to vacate the presidency by people power and then Vice President Gloria Macapagal-Arroyo succeeded him in office.[1] He was charged, in eight cases filed with the Sandiganbayan, with various offenses committed while in office, among them plunder, for allegedly having amassed ill-gotten wealth in the amount of P4.1 billion, more or less. He moved to quash the information for plunder on the ground that R.A. No. 7080, otherwise called the Anti-Plunder Law, is unconstitutional and that the information charges more than one offense.

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

I. THE ANTI-PLUNDER LAW

The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July 12, 1991 pursuant to the constitutional mandate that “the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.”[2] Section 2 of the statute provides:

Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (As amended by Sec. 12, R.A. No. 7659).

The term “ill-gotten wealth” is defined in §1(d) as follows:

“Ill-gotten wealth,” means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury.

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries.

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

Section 4 of the said law states:

Rule of Evidence. ¾ For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

II. ANTI-PLUNDER LAW NOT TO BE JUDGED
“ON ITS FACE”

The amended information against petitioner charges violations of §2, in relation to §1(d)(1)(2), of the statute. It reads:

AMENDED INFORMATION

The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a “Asiong Salonga” and a.k.a “Jose Velarde,” together with Jose “Jinggoy” Estrada, Charlie “Atong” Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection, or influence, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines, through any or a combination or a series of overt or criminal acts, or similar schemes or means, described as follows:

(a) by receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of five hundred forty-five million pesos (P545,000,000.00), more or less, from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit, by himself and/or in connivance with co-accused Charlie “Atong” Ang, Jose “Jinggoy” Estrada, Yolanda T. Ricaforte, Edward Serapio, and John Does and Jane Does, in consideration of toleration or protection of illegal gambling;

(b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his or their personal gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing a portion of the two hundred million pesos [P200,000,000.00] tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie “Atong” Ang, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, and other John Does and Jane Does;

(c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service Insurance System (GSIS) to purchase 351,878,000 shares of stocks, more or less, and the Social Security System (SSS), 329,855,000 shares of stocks, more or less, of the Belle Corporation in the amount of more or less one billion one hundred two million nine hundred sixty five thousand six hundred seven pesos and fifty centavos [P1,102,965,607.50] and more or less seven hundred forty four million six hundred twelve thousand and four hundred fifty pesos [P744,612,450.00], respectively, or a total of more or less one billion eight hundred forty seven million five hundred seventy eight thousand fifty seven pesos and fifty centavos [P1,847,578,057.50]; and by collecting or receiving, directly or indirectly, by himself and/or in connivance with John Does and Jane Does, commissions or percentages by reason of said purchases of shares of stock in the amount of one hundred eighty nine million seven hundred thousand pesos [P189,700,000.00], more or less, from the Belle Corporation which became part of the deposit in the Equitable-PCI Bank under the account name “Jose Velarde”;

(d) by unjustly enriching himself from commissions, gifts, shares, percentages, kickbacks, or any form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of more or less three billion two hundred thirty three million one hundred four thousand one hundred seventy three pesos and seventeen centavos [P3,233,104,173.17] and depositing the same under his account name “Jose Velarde” at the Equitable-PCI Bank.

CONTRARY TO LAW.

Manila for Quezon City, Philippines, 18 April 2001

But, although this is a prosecution under §2, in relation to §1(d)(1)(2), what we are seeing here is a wholesale attack on the validity of the entire statute. Petitioner makes little effort to show the alleged invalidity of the statute as applied to him. His focus is instead on the statute as a whole as he attacks “on their face” not only §§1(d)(1)(2) of the statute but also its other provisions which deal with plunder committed by illegal or fraudulent disposition of government assets (§1(d)(3)), acquisition of interest in business (§1(d)(4)), and establishment of monopolies and combinations or implementation of decrees intended to benefit particular persons or special interests (§1(d)(5)).

These other provisions of the statute are irrelevant to this case. What relevance do questions regarding the establishment of monopolies and combinations, or the ownership of stocks in a business enterprise, or the illegal or fraudulent dispositions of government property have to the criminal prosecution of petitioner when they are not even mentioned in the amended information filed against him? Why should it be important to inquire whether the phrase “overt act” in §1(d) and §2 means the same thing as the phrase “criminal act” as used in the same provisions when the acts imputed to petitioner in the amended information are criminal acts? Had the provisions of the Revised Penal Code been subjected to this kind of line-by-line scrutiny whenever a portion thereof was involved in a case, it is doubtful if we would have the jurisprudence on penal law that we have today. The prosecution of crimes would certainly have been hampered, if not stultified. We should not even attempt to assume the power we are asked to exercise. “The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases . . . . In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.”[3]

Nonetheless, it is contended that because these provisions are void for being vague and overbroad, the entire statute, including the part under which petitioner is being prosecuted, is also void. And if the entire statute is void, there is no law under which he can be prosecuted for plunder. Nullum crimen sine lege, nullum poena sine lege.

Two justifications are advanced for this facial challenge to the validity of the entire statute. The first is that the statute comes within the specific prohibitions of the Constitution and, for this reason, it must be given strict scrutiny and the normal presumption of constitutionality should not be applied to it nor the usual judicial deference given to the judgment of Congress.[4] The second justification given for the facial attack on the Anti-Plunder Law is that it is vague and overbroad.[5]

We find no basis for such claims either in the rulings of this Court or of those of the U.S. Supreme Court, from which petitioner’s counsel purports to draw for his conclusions. We consider first the claim that the statute must be subjected to strict scrutiny.

A. Test of Strict Scrutiny Not Applicable to Penal Statutes

Petitioner cites the dictum in Ople v. Torres[6] that “when the integrity of a fundamental right is at stake, this Court will give the challenged law, administrative order, rule or regulation stricter scrutiny” and that “It will not do for authorities to invoke the presumption of regularity in the performance of official duties.” As will presently be shown, “strict scrutiny,” as used in that decision, is not the same thing as the “strict scrutiny” urged by petitioner. Much less did this Court rule that because of the need to give “stricter scrutiny” to laws abridging fundamental freedoms, it will not give such laws the presumption of validity.

Petitioner likewise cites “the most celebrated footnote in [American] constitutional law,” i.e., footnote 4 of the opinion in United States v. Carolene Products Co.,[7] in which it was stated:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Again, it should be noted that what the U.S. Supreme Court said is that “there may be narrower scope for the operation of the presumption of constitutionality” for legislation which comes within the first ten amendments to the American Federal Constitution compared to legislation covered by the Fourteenth Amendment Due Process Clause. The American Court did not say that such legislation is not to be presumed constitutional, much less that it is presumptively invalid, but only that a “narrower scope” will be given for the presumption of constitutionality in respect of such statutes. There is, therefore, no warrant for petitioner’s contention that “the presumption of constitutionality of a legislative act is applicable only where the Supreme Court deals with facts regarding ordinary economic affairs, not where the interpretation of the text of the Constitution is involved.”[8]

What footnote 4 of the Carolene Products case posits is a double standard of judicial review: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and deferential or rational basis standard of review for economic legislation. As Justice (later Chief Justice) Fernando explained in Malate Hotel and Motel Operators Ass’n v. The City Mayor,[9] this simply means that “if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects what are at the most rights of property, the permissible scope of regulatory measures is wider.”

Hence, strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race and facial challenges are allowed for this purpose. But criminal statutes, like the Anti-Plunder Law, while subject to strict construction, are not subject to strict scrutiny. The two (i.e., strict construction and strict scrutiny) are not the same. The rule of strict construction is a rule of legal hermeneutics which deals with the parsing of statutes to determine the intent of the legislature. On the other hand, strict scrutiny is a standard of judicial review for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. It is set opposite such terms as “deferential review” and “intermediate review.”

Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved. Under intermediate review, the substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.[10]

Considering these degrees of strictness in the review of statutes, how many criminal laws can survive the test of strict scrutiny to which petitioner proposes to subject them? How many can pass muster if, as petitioner would have it, such statutes are not to be presumed constitutional? Above all, what will happen to the State’s ability to deal with the problem of crimes, and, in particular, with the problem of graft and corruption in government, if criminal laws are to be upheld only if it is shown that there is a compelling governmental interest for making certain conduct criminal and if there is no other means less restrictive than that contained in the law for achieving such governmental interest?

B. Vagueness and Overbreadth Doctrines, as Grounds for Facial Challenge,
Not Applicable to Penal Laws

Nor do allegations that the Anti-Plunder Law is vague and overbroad justify a facial review of its validity. The void-for-vagueness doctrine states that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”[11] The overbreadth doctrine, on the other hand, decrees that “a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”[12]

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.”[13] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, “we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”[14] In Broadrick v. Oklahoma,[15] the Court ruled that “claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words” and, again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” For this reason, it has been held that “a facial challenge to a legislative Act is … the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”[16] As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”[17]

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing “on their faces” statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”[18] As has been pointed out, “vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] ‘as applied’ to a particular defendant.”[19] Consequently, there is no basis for petitioner’s claim that this Court review the Anti-Plunder Law on its face and in its entirety.

C. Anti-Plunder Law Should be Construed “As Applied”

Indeed, “on its face” invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected.[20] It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.[21] But, as the U.S. Supreme Court pointed out in Younger v. Harris:[22]

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

This is the reason “on its face” invalidation of statutes has been described as “manifestly strong medicine,” to be employed “sparingly and only as a last resort,”[23] and is generally disfavored.[24] In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.[25]

This brings me to the question whether, as applied, §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law is void on the ground of vagueness and overbreadth.

III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD

As earlier noted, the case against petitioner Joseph Ejercito Estrada in the Sandiganbayan is for violation of §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law, which, so far as pertinent, provide:

SEC. 2. Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death....

SEC. 1. Definition of Terms. ¾ ...

(d) “Ill-gotten wealth,” means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury.

The charge is that in violation of these provisions, during the period June 1998 to January 2001, petitioner, then the President of the Philippines, willfully, unlawfully, and criminally amassed wealth in the total amount of P4,097,804,173.17, more or less, through “a combination or series of overt or criminal acts,” to wit: (1) by receiving or collecting the total amount of P545,000,000.00, more or less, from illegal gambling by himself and/or in connivance with his co-accused named therein, in exchange for protection of illegal gambling; (2) by misappropriating, converting, or misusing, by himself or in connivance with his co-accused named therein, public funds amounting to P130,000,000.00, more or less, representing a portion of the share of the Province of Ilocos Sur in the tobacco excise tax; (3) by ordering the GSIS and the SSS to buy shares of stocks of the Belle Corp., worth P1,102,965,607.50 and P744,612,450.00 respectively, or the total amount of P1,847,578,057.50, for which he received as commission the amount of P189,700,000.00, more or less, from Belle Corp.; (4) by unjustly enriching himself from commissions, gifts, shares, percentages, and kickbacks in the amount of P3,233,104,173.17, which he deposited in the Equitable-PCI Bank under the name of “Jose Velarde.”

Anyone reading the law in relation to this charge cannot possibly be mistaken as to what petitioner is accused of in Criminal Case No. 26558 of the Sandiganbayan. But, repeatedly, petitioner complains that the law is vague and deprives him of due process. He invokes the ruling in Connally v. General Constr. Co.[26] that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” He does this by questioning not only §2, in relation to §1(d)(1)(2), as applied to him, but also other provisions of the Anti-Plunder Law not involved in this case. In 55 out of 84 pages of discussion in his Memorandum, petitioner tries to show why on their face these provisions are vague and overbroad by asking questions regarding the meaning of some words and phrases in the statute, to wit:

1. Whether “series” means two, three, or four overt or criminal acts listed in §1(d) in view of the alleged divergence of interpretation given to this word by the Ombudsman, the Solicitor General, and the Sandiganbayan, and whether the acts in a series should be directly related to each other;

2. Whether “combination” includes two or more acts or at least two of the “means or similar schemes” mentioned in §1(d);

3. Whether “pattern” as used in §1(d) must be related to the word “pattern” in §4 which requires that it be “indicative of an overall unlawful scheme or conspiracy”;

4. Whether “overt” means the same thing as “criminal”;

5. Whether “misuse of public funds” is the same as “illegal use of public property or technical malversation”;

6. Whether “raids on the public treasury” refers to raids on the National Treasury or the treasury of a province or municipality;

7. Whether the receipt or acceptance of a gift, commission, kickback, or pecuniary benefits in connection with a government contract or by reason of his office, as used in §1(d)(2), is the same as bribery in the Revised Penal Code or those which are considered corrupt practices of public officers;

8. Whether “illegal or fraudulent conveyance or disposition of assets belonging to the National Government,” as used in §1(d)(3), refers to technical malversation or illegal use of public funds or property in the Revised Penal Code;

9. Whether mere ownership of stocks in a private corporation, such as a family firm engaged in fishing, is prohibited under §1(d)(4);

10. Whether the phrase “monopolies or other combinations in restraint of trade” in §1(d)(5) means the same thing as “monopolies and combinations in restraint of trade” in the Revised Penal Code because the latter contemplates monopolies and combinations established by any person, not necessarily a public officer; and

11. Whether under §1(d)(5) it is the public officer who intends to confer benefit on a particular person by implementing a decree or it is the decree that is intended to benefit the particular person and the public officer simply implements it.

Many more questions of this tenor are asked in the memorandum of petitioner[27] as well as in the dissent of MR. JUSTICE KAPUNAN. Not only are they irrelevant to this case, as already pointed out. It is also evident from their examination that what they present are simply questions of statutory construction to be resolved on a case-to-case basis. Consider, for example, the following words and phrases in §1(d) and §2:

A. “Combination or series of overt or criminal acts”

Petitioner contends that the phrase “combination or series of overt, or criminal acts” in §1(d) and §2 should state how many acts are needed in order to have a “combination” or a “series.” It is not really required that this be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites the following remarks of Senators Gonzales and Tañada during the discussion of S. No. 733 in the Senate:

SENATOR GONZALES. To commit the offense of plunder, as defined in this Act while constituting a single offense, it must consist of a series of overt or criminal acts, such as bribery, extortion, malversation of public funds, swindling, falsification of public documents, coercion, theft, fraud, and illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I think, this provision, by itself, will be vague. I am afraid that it might be faulted for being violative of the due process clause and the right to be informed of the nature and cause of accusation of an accused. Because, what is meant by “series of overt or criminal acts”? I mean, would 2, 3, 4 or 5 constitute a series? During the period of amendments, can we establish a minimum of overt acts like, for example, robbery in band? The law defines what is robbery in band by the number of participants therein.

In this particular case, probably, we can statutorily provide for the definition of “series” so that two, for example, would that be already a series? Or, three, what would be the basis for such a determination?

SENATOR TAÑADA. I think, Mr. President, that would be called for, this being a penal legislation, we should be very clear as to what it encompasses; otherwise, we may contravene the constitutional provision on the right of the accused to due process.[28]

But, as the later discussion in the Senate shows, the senators in the end reached a consensus as to the meaning of the phrase so that an enumeration of the number of acts needed was no longer proposed. Thus, the record shows:

SENATOR MACEDA. In line with our interpellations that sometimes “one” or maybe even “two” acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words “a series of overt or.” To read, therefore: “or conspiracy COMMITTED by criminal acts such.” Remove the idea of necessitating “a series.” Anyway, the criminal acts are in the plural.

SENATOR TAÑADA. That would mean a combination of two or more of the acts mentioned in this.

THE PRESIDENT. Probably, two or more would be . . .

SENATOR MACEDA. Yes, because “a series” implies several or many; two or more.

SENATOR TAÑADA: Accepted, Mr. President.

. . . .

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say “acts of plunder” there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.[29]

Indeed, the record shows that no amendment to S. No. 733 was proposed to this effect. To the contrary, Senators Gonzales and Tañada voted in favor of the bill on its third and final reading on July 25, 1989. The ordinary meaning of the term “combination” as the “union of two things or acts” was adopted, although in the case of “series,” the senators agreed that a repetition of two or more times of the same thing or act would suffice, thus departing from the ordinary meaning of the word as “a group of usually three or more things or events standing or succeeding in order and having a like relationship to each other,” or “a spatial or temporal succession of persons or things,” or “a group that has or admits an order of arrangement exhibiting progression.”[30]

In the Bicameral Conference Committee on Justice meeting held on May 7, 1991, the same meanings were given to the words “combination” and “series.” Representative Garcia explained that a combination is composed of two or more of the overt or criminal acts enumerated in §1(d), while a series is a repetition of any of the same overt or criminal acts. Thus:

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also?

. . . .

REP. ISIDRO: When we say combination, it seems that ¾

THE CHAIRMAN (REP. GARCIA): Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.

THE CHAIRMAN (REP. GARCIA): No, no, not twice.

REP. ISIDRO: Not twice?

THE CHAIRMAN (REP. GARCIA): Yes, combination is not twice ¾ but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It can not be a repetition of the same act.

THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA): A series.

REP. ISIDRO: That’s not [a] series. It’s a combination. Because when we say combination or series, we seem to say that two or more, ‘di ba?

THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it, really, from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So. . .

. . . .

REP. ISIDRO: When you say “combination”, two different?

THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN (SEN. TAÑADA): Two different. . . .

REP. ISIDRO: Two different acts.

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

REP. ISIDRO: Now a series, meaning, repetition. . .[31]

Thus, resort to the deliberations in Congress will readily reveal that the word “combination” includes at least two different overt or criminal acts listed in R.A. No. 7080, such as misappropriation (§1(d)(1)) and taking undue advantage of official position (§1(d)(6)). On the other hand, “series” is used when the offender commits the same overt or criminal act more than once. There is no plunder if only one act is proven, even if the ill-gotten wealth acquired thereby amounts to or exceeds the figure fixed by the law for the offense (now P50,000,000.00). The overt or criminal acts need not be joined or separated in space or time, since the law does not make such a qualification. It is enough that the prosecution proves that a public officer, by himself or in connivance with others, amasses wealth amounting to at least P50 million by committing two or more overt or criminal acts.

Petitioner also contends that the phrase “series of acts or transactions” is the subject of conflicting decisions of various Circuit Courts of Appeals in the United Sates. It turns out that the decisions concerned a phrase in Rule 8(b) of the Federal Rules of Criminal Procedure which provides:

(b) Joinder of Defendants: Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged on each count. (Emphasis added)

The fact that there is a conflict in the rulings of the various courts does not mean that Rule 8(b) is void for being vague but only that the U.S. Supreme Court should step in, for one of its essential functions is to assure the uniform interpretation of federal laws.

We have a similar provision in Rule 3, §6 of the 1997 Code of Civil Procedure. It reads:

SEC. 6. Permissive joinder of parties. ¾ All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (Emphasis added)

This provision has been in our Rules of Court since 1940 but it has never been thought of as vague. It will not do, therefore, to cite the conflict of opinions in the United States as evidence of the vagueness of the phrase when we do not have any conflict in this country.

B. “Pattern of overt or criminal acts”

Petitioner contends that it is not enough that there be at least two acts to constitute either a combination or series because §4 also mentions “a pattern of overt or criminal acts indicative of the overall scheme or conspiracy,” and “pattern” means “an arrangement or order of things or activity.”

A “pattern of overt or criminal acts” is required in §4 to prove “an unlawful scheme or conspiracy.” In such a case, it is not necessary to prove each and every criminal act done in furtherance of the scheme or conspiracy so long as those proven show a pattern indicating the scheme or conspiracy. In other words, when conspiracy is charged, there must be more than a combination or series of two or more acts. There must be several acts showing a pattern which is “indicative of the overall scheme or conspiracy.” As Senate President Salonga explained, if there are 150 constitutive crimes charged, it is not necessary to prove beyond reasonable doubt all of them. If a pattern can be shown by proving, for example, 10 criminal acts, then that would be sufficient to secure conviction.[32]

The State is thereby enabled by this device to deal with several acts constituting separate crimes as just one crime of plunder by allowing their prosecution by means of a single information because there is a common purpose for committing them, namely, that of “amassing, accumulating or acquiring wealth through such overt or criminal acts.” The pattern is the organizing principle that defines what otherwise would be discreet criminal acts into the single crime of plunder.

As thus applied to petitioner, the Anti-Plunder Law presents only problems of statutory construction, not vagueness or overbreadth. In Primicias v. Fugoso,[33] an ordinance of the City of Manila, prohibiting the holding of parades and assemblies in streets and public places unless a permit was first secured from the city mayor and penalizing its violation, was construed to mean that it gave the city mayor only the power to specify the streets and public places which can be used for the purpose but not the power to ban absolutely the use of such places. A constitutional doubt was thus resolved through a limiting construction given to the ordinance.

Nor is the alleged difference of opinion among the Ombudsman, the Solicitor General, and the Sandiganbayan as to the number of acts or crimes needed to constitute plunder proof of the vagueness of the statute and, therefore, a ground for its invalidation. For sometime it was thought that under Art. 134 of the Revised Penal Code convictions can be had for the complex crime of rebellion with murder, arson, and other common crimes. The question was finally resolved in 1956 when this Court held that there is no such complex crime because the common crimes were absorbed in rebellion.[34] The point is that Art. 134 gave rise to a difference of opinion that nearly split the legal profession at the time, but no one thought Art. 134 to be vague and, therefore, void.

Where, therefore, the ambiguity is not latent and the legislative intention is discoverable with the aid of the canons of construction, the void for vagueness doctrine has no application.

In Connally v. General Constr. Co.[35] the test of vagueness was formulated as follows:

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

Holmes’s test was that of the viewpoint of the bad man. In The Path of the Law, Holmes said:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.[36]

Whether from the point of view of a man of common intelligence or from that of a bad man, there can be no mistaking the meaning of the Anti-Plunder Law as applied to petitioner.

IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS REA

Petitioner argues that, in enacting the statute in question, Congress eliminated the element of mens rea, or the scienter, thus reducing the burden of evidence required for proving the crimes which are mala in se.[37]

There are two points raised in this contention. First is the question whether the crime of plunder is a malum in se or a malum prohibitum. For if it is a malum prohibitum, as the Ombudsman and the Solicitor General say it is,[38] then there is really a constitutional problem because the predicate crimes are mainly mala in se.

A. Plunder A Malum In Se Requiring Proof of Mens Rea

Plunder is a malum in se, requiring proof of criminal intent. Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed “willfully, unlawfully and criminally.” It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Tañada made during the deliberation on S. No. 733:

SENATOR TAÑADA. . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[39]

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman’s view, would provide for a speedier and faster process of attending to this kind of cases?

SENATOR TAÑADA. Yes, Mr. President . . .[40]

Señator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown.

Indeed, §2 provides that ¾

Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to “any person who participates with the said public officers in the commission of an offense contributing to the crime of plunder.” There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: “We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.”[41]

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echagaray:[42]

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being. . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se[43] and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts.

B. The Penalty for Plunder

The second question is whether under the statute the prosecution is relieved of the duty of proving beyond reasonable doubt the guilt of the defendant. It is contended that, in enacting the Anti-Plunder Law, Congress simply combined several existing crimes into a single one but the penalty which it provided for the commission of the crime is grossly disproportionate to the crimes combined while the quantum of proof required to prove each predicate crime is greatly reduced.

We have already explained why, contrary to petitioner’s contention, the quantum of proof required to prove the predicate crimes in plunder is the same as that required were they separately prosecuted. We, therefore, limit this discussion to petitioner’s claim that the penalty provided in the Anti-Plunder Law is grossly disproportionate to the penalties imposed for the predicate crimes. Petitioner cites the following examples:

For example, please consider the following ‘combination’ or ‘series’ of overt or criminal acts (assuming the P50 M minimum has been acquired) in light of the penalties laid down in the Penal Code:

a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision correccional in its medium and maximum periods),

– combined with –

one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code with prision correccional in its medium period to prision mayor in its minimum period,

- equals -

plunder (punished by reclusion perpetua to death plus forfeiture of assets under R.A. 7080)

b. One act of prohibited transaction (penalized under Art. 215 of the revised Penal Code with prision correccional in its minimum period or a fine ranging from P200 to P1,000 or both),

– combined with –

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

-equals-

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

c. One act of possession of prohibited interest by a public officer (penalized with prision correccional in its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal Code),

– combined with –

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

- equals -

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

But this is also the case whenever other special complex crimes are created out of two or more existing crimes. For example, robbery with violence against or intimidation of persons under Art. 294, par. 5 of the Revised Penal Code is punished with prision correccional in its maximum period (4 years, 2 months, and 1 day) to prision mayor in its medium period (6 years and 1 day to 8 years). Homicide under Art. 249 of the same Code is punished with reclusion temporal (12 years and 1 day to 20 years). But when the two crimes are committed on the same occasion, the law treats them as a special complex crime of robbery with homicide and provides the penalty of reclusion perpetua to death for its commission. Again, the penalty for simple rape under Art. 266-B of the Revised Penal Code is reclusion perpetua, while that for homicide under Art. 249 it is reclusion temporal (12 years and 1 day to 20 years). Yet, when committed on the same occasion, the two are treated as one special complex crime of rape with homicide and punished with a heavier penalty of reclusion perpetua to death. Obviously, the legislature views plunder as a crime as serious as robbery with homicide or rape with homicide by punishing it with the same penalty. As the explanatory note accompanying S. No. 733 explains:

Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but constitute the plunder of an entire nation resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting influences of power.

Many other examples drawn from the Revised Penal Code and from special laws may be cited to show that, when special complex crimes are created out of existing crimes, the penalty for the new crime is heavier.

______________________

To recapitulate, had R.A. No. 7080 been a law regulating speech, I would have no hesitation examining it on its face on the chance that some of its provisions ¾ even though not here before us ¾ are void. For then the risk that some state interest might be jeopardized, i.e., the interest in the free flow of information or the prevention of “chill” on the freedom of expression, would trump any marginal interest in security.

But the Anti-Plunder Law is not a regulation of speech. It is a criminal statute designed to combat graft and corruption, especially those committed by highly-placed public officials. As conduct and not speech is its object, the Court cannot take chances by examining other provisions not before it without risking vital interests of society. Accordingly, such statute must be examined only “as applied” to the defendant and, if found valid as to him, the statute as a whole should not be declared unconstitutional for overbreadth or vagueness of its other provisions. Doing so, I come to the following conclusions:

1. That the validity of R.A. No. 7080, otherwise known as the Anti-Plunder Law, cannot be determined by applying the test of strict scrutiny in free speech cases without disastrous consequences to the State’s effort to prosecute crimes and that, contrary to petitioner’s contention, the statute must be presumed to be constitutional;

2. That in determining the constitutionality of the Anti-Plunder Law, its provisions must be considered in light of the particular acts alleged to have been committed by petitioner;

3. That, as applied to petitioner, the statute is neither vague nor overbroad;

4. That, contrary to the contention of the Ombudsman and the Solicitor General, the crime of plunder is a malum in se and not a malum prohibitum and the burden of proving each and every predicate crime is on the prosecution.

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