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]
http://sc.judiciary.gov.ph/jurisprudence/2001/nov2001/148560_kapunan.htm
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