DONALD SEVILLA
COLUMNFOR OCT 1, 2023
PLUNDER OR PANDER?
Not to come to the aid of any public official/s who by their stature and position can very well defend themselves by hiring competent lawyers, but to put things in context so ordinary people like us can appreciate and understand allegations levied against them on issues that transcend public interest.To begin with, let us first understand what plunder means in our laws lest we fall prey to clever propaganda.” Republic Act No. 7080 as amended by RA 7659 defines the crime of plunder as the accumulation of iII- gotten wealth through a combination or series of overt criminal acts in the aggregate amount of P50,000,000.00 by a public officer either by himself directly or in connivance with others.”Furthermore we must also comprehend the meaning of the following terms:” Public Officer – means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. (Section 1[a], R.A. 7080, Anti-Plunder Act, as amended by R.A. 7659)Government– includes the National Government, and any of its subdivisions, agencies or instrumentalities, including government-owned or -controlled corporations and their subsidiaries. (Section 1[b], Ibid.)“Person” – includes any natural or juridical person, unless the context indicates otherwise. (Section 1[c], Ibid.)“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:Overt and criminal acts:1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking;5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or6) 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 1[d], Ibid.)2. Crimesa. PlunderELEMENTS OF THE CRIME:1) That the offender is a public officer, who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;2) That he amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts described in Section 1(d) – i.e. overt and criminal acts; and,3) That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated, or acquired is at least P50 Million Pesos. (Sombero, Jr. v. Ombudsman, G.R. Nos. 237888 and 237904, 28 July 2020)Malum in se: Plunder is a malum in se which requires proof of criminal intent. (Napoles v. Sandiganbayan, En Banc, G.R. No. 224162, 07 November 2017)Corpus delicti: The corpus delicti of plunder is the amassment, accumulation or acquisition of ill-gotten wealth valued at not less than P50,000,000.00. The failure to establish the corpus delicti should lead to the dismissal of the criminal prosecution. (Arroyo v. People, En Banc, G.R. No. 220598, 18 April 2017)Combination: “Combination” refers to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). (Estrada v. Sandiganbayan, En Banc, G.R. No. 148560, 19 November 2001)Series: To constitute a “series,” there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). (Ibid.)Pattern: A “pattern” consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. (Ibid.)b. ConspiracyAny 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. (Section 2, Ibid.)Connivance: Conspiracy among the accused to commit the crime of Plunder is usually an agreement or connivance to secretly cooperate in doing the unlawful act. (Napoles v. Sandiganbayan, supra.)Same; Implied conspiracy: Seeing as it would be difficult to provide direct evidence establishing the conspiracy among the accused, the Sandiganbayan may infer it “from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.” The conspiracy may be implied from the intentional participation in the transaction that furthers the common design and purpose. As long as the prosecution was able to prove that two or more persons aimed their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, the conspiracy may be inferred even if no actual meeting among them was proven. (Ibid.)3. ProsecutionMain plunderer as a requirement: The law on plunder requires that a particular public officer must be identified as the one who amassed, acquired or accumulated ill-gotten wealth because it plainly states that plunder is committed by 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 in the aggregate amount or total value of at least ₱50,000,000.00 through a combination or series of overt criminal acts as described in Section l(d) hereof. Surely, the law requires in the criminal charge for plunder against several individuals that there must be a main plunderer and her co-conspirators, who may be members of her family, relatives by affinity or consanguinity, business associates, subordinates or other persons. In other words, the allegation of the wheel conspiracy or express conspiracy in the information was appropriate because the main plunderer would then be identified in either manner. Of course, implied conspiracy could also identify the main plunderer, but that fact must be properly alleged and duly proven by the Prosecution. (Arroyo v. People, supra.)Fatal if not identified: The Prosecution’s failure to properly allege the main plunderer should be fatal to the cause of the State against the accused for violating the rights of each accused to be informed of the charges against each of them. (Ibid.)Degree of participation: 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. (Ibid.)Forfeiture of ill-gotten wealth: 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. (Ibid.)3. PrescriptionThe crime punishable under this Act shall prescribe in twenty (20) years. (Section 3, Ibid.)Recovery of properties – imprescriptible: The right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel. “From the above we should be able to weigh in on the allegations brought forth concerning the distribution of medical health kits to Senior Citizens during the pandemic.From what we know the questioned procurement was done through public bidding and that there were no allegations of an overprice.But did it constitute the crime of plunder?While it may not, the allegations pandered to the interests of those presently in power putting them at an advantage over their political rivals.*references: ombudsman.gov.ph, lawphil.net, legalresource.ph, lawlibrary.chanrobles.com, officialgazette.gov.ph