DISSENTING OPINION

KAPUNAN, J.:

The primary duty of the Court is to render justice. The resolution of the issues brought before it must be grounded on law, justice and the basic tenets of due process,  unswayed by the passions of the day or the clamor of the multitudes, guided only by its members’ honest conscience, clean hearts and their unsullied conviction to do what is right under the law.

The issues posed by the instant petition are quite difficult.  The task of the Court to resolve the same is made more daunting because the case involves a former President of the Republic who, in the eyes of certain sectors of society, deserves to be punished. But the mandate of the Court is to decide these issues solely on the basis of law and due process, and regardless of the personalities involved.  For indeed, the rule of law and the right to due process are immutable principles that should apply to all, even to those we hate.  As Fr. Joaquin G. Bernas, S.J., a noted constitutionalist, aptly puts it--

x x x  the greater disaster would be if the Supreme Court should heed the clamor for conviction and convict Estrada even under an unconstitutional law but of the belief that Estrada deserves to be punished.  That would be tantamount to a rule of men and not of law.[1]

The Basic Facts

The petition before us questions the constitutionality of Republic Act No. 7080 (R.A. No. 7080 or Plunder Law), as amended by Republic Act No. 7659,[2] entitled “An Act Defining and Penalizing the Crime of Plunder.”[3] This original petition for certiorari and prohibition against Respondent Third Division of the Sandiganbayan filed by petitioner Joseph Ejercito Estrada assails Respondent court’s Resolution, dated July 9, 2001, denying his Motion to Quash the information against him in Criminal Case No. 26558 for Plunder.  Petitioner likewise prays that the Sandiganbayan be prohibited and enjoined from  proceeding with his arraignment and trial in Criminal Case No. 26558 due to the unconstitutionality of R. A. No. 7080.

On the heels of the finality of the joint decision of this Court in G.R. No. 146710 (Estrada vs. Desierto, et al.) and in G.R. No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on April 3, 2001, upholding the constitutionality of President Gloria Macapagal-Arroyo’s assumption of office as President of the Republic of the Philippines and declaring that the former President Joseph Ejercito Estrada no longer enjoyed immunity from suit, the Ombudsman filed eight (8) Informations against Estrada.  These cases were Criminal Case No. 26558 (for Plunder); Criminal Case No. 26559 (for Violation of Sec. 3[a] of Republic Act No. 3019); Criminal Case No. 26560 (for Violation of Sec. 3[a] of R.A. No. 3019); Criminal Case No. 26561 (for Violation of Sec. 3[e] of R.A. 3019); Criminal Case No. 26562 (for Violation of Sec. 3[e] of R.A. No. 3019); Criminal Case No. 26563 (for Violation of Sec. 7[d] of R.A. No. 6713); Criminal Case No. 26564 (for Perjury); and Criminal Case No. 26565 (for Illegal Use of Alias).

The aforementioned informations were raffled to the five divisions of the Sandiganbayan.  Criminal Case No. 26558 was raffled to the Third Division of said court.  The amended information against petitioner charging violations of Section 2, in relation to Section (d) (1) (2) of the statute reads:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, by himself and in conspiracy with his co-accused, business associates and persons heretofore named, by taking advantage of his official position, authority, connection or influence as President of the Republic of the Philippines, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire ill-gotten wealth, and unjustly enrich himself in the aggregate amount of P4,097,804,173.17, more or less, through a combination and series of overt and criminal acts, described as follows:

(a) by receiving, collecting, directly or indirectly, on many instances, so-called “jueteng money” from gambling operators in connivance with co-accused Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte and Edward Serapio, as witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses, in the aggregate amount of FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000.000.00), more or less, in consideration of their protection from arrest or interference by law enforcers in their illegal “jueteng” activities; and

(b) by misappropriating, converting and misusing for his gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of One Hundred Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, in conspiracy with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses; and

(c) by directing, ordering and compelling the Government Service Insurance System (GSIS) and the Social Security System (SSS) to purchase and buy a combined total of 681,733,000 shares of stock of the Belle Corporation in the aggregate gross value of One Billion Eight Hundred Forty-Seven Million Five Hundred Seventy Eight Thousand Pesos and Fifty Centavos(P1,847,578,057.50), for the purpose of collecting for his personal gain and benefit, as in fact he did collect and receive the sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND FIFTY SEVEN PESOS (P189,700,000.00) as commission for said stock purchase; and

(d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) comprising his unexplained wealth acquired, accumulated and amassed by him under his account name “Jose Velarde” with Equitable PCI Bank:

to the damage and prejudice of the Filipino people and the Republic of the Philippines.

CONTRARY TO LAW.[4]

On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte Manifestation to Withdraw Information in Criminal Case Nos. 26559, 26560, 26561, 26562 and 26563.  Petitioner registered his objection to the Ombudsman’s motion to withdraw. The divisions of the Sandiganbayan to which said cases were assigned granted the withdrawal of the informations, save for that in Criminal Case No. 26561.  At present, the Order of the First Division of the Sandiganbayan denying the Ombudsman’s motion to withdraw in Criminal Case No. 26561 is still under reconsideration.

In Criminal Case No. 26558, petitioner filed on April 11, 2001 an Omnibus Motion for the remand of  the case to the Office of the Ombudsman for: (1) the conduct of a preliminary investigation as regards specification “d” of the accusations in the information in said case; and (2) reconsideration/reinvestigation of the offenses in specifications “a,” “b” and “c” to enable petitioner to file his counter-affidavits as well as other necessary documents.

On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution finding that:

(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose “Jinggoy” Estrada, Charlie “Atong” Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramon Tan or Mr. Uy and Jane Doe a.k.a. Delia Rajas.

Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a Resolution denying petitioner’s Omnibus Motion.

On June 15, 2001, petitioner filed a Motion for Reconsideration of said Resolution but the same was denied in a Resolution of June 25, 2001.

Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the information in Criminal Case No. 26558,  invoking the following grounds: (1) the facts charged do not constitute an indictable offense as R.A. No. 7080, the statute on which it is based, is unconstitutional; and (2) the information charges more than one offense.

The People of the Philippines filed an Opposition thereto on June 21, 2001.  Petitioner filed his Reply to the Opposition on June 28, 2001.

On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution denying petitioner’s motion to quash.

Petitioner thus filed the instant petition for certiorari and prohibition, claiming that the Sandiganbayan committed grave abuse of discretion in denying his motion to quash the information in Criminal Case No. 26558.  Petitioner argues that R.A. No. 7080 is unconstitutional on the following grounds:

I.  IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS

II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO KNOW THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM

III.              IT VIOLATES THE DUE PROCESS CLAUSE AND THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE BY LOWERING THE QUANTUM OF EVIDENCE NECESSARY FOR PROVING THE COMPONENT ELEMENTS OF PLUNDER

IV.  IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE TO DELIMIT THE REASONABLE DOUBT STANDARD AND TO ABOLISH THE ELEMENT OF MENS REA IN MALA IN SE CRIMES BY CONVERTING THESE TO MALA PROHIBITA, IN VIOLATION OF THE DUE PROCESS CONCEPT OF CRIMINAL RESPONSIBILITY.[5]

The provisions of law involved

Section 2 of  R.A. No. 7080 provides:

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

Section 1(d) of the same law defines "ill-gotten wealth" as “any asset, property, business enterprise or material possession of any person within the purview of Section Two (2)” hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the following means or similar schemes:

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

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

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

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

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

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

On the other hand, Section 4 states:

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

Petitioner’s theory

Petitioner asserts that R.A. No. 7080  is vague and overbroad on its face, and suffers from structural deficiency and ambiguity.[7] In sum, he maintains that the law does not afford an ordinary person reasonable notice that his actuation will constitute a criminal offense.  More particularly, petitioner argues that the terms "combination" and “series” are not clearly defined, citing that in a number of cases, the United States (U.S.) federal courts in deciding cases under the Racketeer Influenced and Corrupt Organizations Act (RICO law),  after which the Plunder Law was patterned, have given different interpretations to “series of acts or transactions.”[8] In addition, he terms “raid on the public treasury,” “receiving or accepting a gift,” “commission,” “kickbacks,” “illegal or fraudulent conveyance or disposition of assets,” “monopolies or other combinations,” “special interests,” “taking undue advantage of official position,” “unjustly enrich” all suffer from overbreadth which is a form of vagueness.[9]

In arguing that the law on plunder is vague and impermissibly broad, petitioner points out that the terms “combination” and ‘series” used in the phrase “any combination or series of the following means or similar schemes” are not defined under the statute.  The use of these terms in the law allegedly raises several questions as to their meaning and import.

Petitioner posits the following queries: “Does it (referring to the term “series”) mean two, three, four, of the overt or criminal acts listed in Section 1(d)?  Would it mean two or more related enterprises falling under at least two of the means or ‘similar schemes’ listed in the law, or just a joint criminal enterprise? Would it require substantial identity of facts and participants, or merely a common pattern of action? Would it imply close connection between acts, or a direct relationship between the charges? Does the term mean a factual relationship between acts or merely a common plan among conspirators?”[10]

The term “combination” is allegedly equally equivocal.  According to petitioner, it is not clear from the law if said term covers time, place, manner of commission, or the principal characters.  Thus petitioner asks: “Does it (referring to the term “combination”) include any two or more acts, whether legal or illegal, or does the law require that the combination must include at least two of the ‘means or similar schemes’ laid down in R.A. 7080?  Does it cover transactions that have occurred in the same place or area, or in different places, no matter how far apart?  Does ‘combination’ include any two or more overt acts, no matter how far apart in time, or does it contemplate acts committed within a short period of time?  Does the ‘combination’ cover the modus operandi of the crimes, or merely the evidence to be used at the trial?”[11]

It is also argued that the phrase “pattern of overt or criminal acts indicative of the overall scheme or conspiracy” adds to the vagueness of the law because “pattern” is not defined therein and is not included in the definition of the crime of plunder even though it is an essential element of said crime.[12]

Petitioner also maintains that the Plunder Law violates the due process clause and the constitutional presumption of innocence by lowering the quantum of evidence necessary for proving the component elements of plunder because Section 4 does not require that each and every criminal act done by the accused in furtherance of the scheme or conspiracy  be proved, “it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.”[13]

Finally, petitioner alleges that it is beyond the power of Congress to delimit the reasonable doubt standard and to abolish the element of mens rea in mala in se crimes by converting these to mala prohibita, thereby making it easier for the prosecution to prove malversation, bribery, estafa and other crimes committed by public officers since criminal intent need not be established.[14]

Considering the infringement to the constitutionally-guaranteed right to due process of an accused, petitioner contends that R.A. No. 7080 cannot be accorded any presumption of constitutional validity.

Respondents’ theory

On the other hand, Respondents argue that the “particular elements constituting the crime of  plunder” are stated with “definiteness and certainty,” as follows:

(1)  There is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;

(2)  There is an amassing, accumulating or acquiring of ill-gotten wealth;

(3)  The total amount of ill-gotten wealth so amassed, accumulated or acquired is at least Fifty Million Pesos (P50,000,000.00); and

(4)  The ill-gotten wealth, which is defined as any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) of R.A. No. 7080, was acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the means or similar schemes enumerated in Section 1(d).[15]

Moreover,  Respondents maintain that assuming that there is some vagueness in the law, it need not be declared unconstitutional but may be clarified by judicial construction.[16] Respondents further add that the ordinary import of the terms combination" and "series" should prevail, as can be gleaned from the deliberations of the Congress in the course of its passage of the law.   According  to  respondents, “series of overt criminal acts”  simply mean a repetition of at least two of any of those enumerated acts found in Section 1(d) of R.A. 7080.  And “combination” means a product of combining of at least one of any of those enumerated acts described in Section 1(d) with at least one of any of the other acts so enumerated.  Respondents score petitioner for arguing on the basis of federal courts’ decisions on the RICO law, citing that the U.S. courts have consistently rejected the contention that said law is void for being vague.[17]

Respondents deny that the Plunder Law dispenses with the requirement of proof beyond reasonable doubt.  While there may be no necessity to prove each and every other act done by the accused in furtherance of the scheme to acquire ill-gotten wealth, it is still necessary for the prosecution to prove beyond reasonable doubt the pattern of overt or criminal acts indicative of the overall scheme or conspiracy, as well as all the other elements of the offense of plunder.[18] Respondents also point out that conspiracy itself is not punishable under the Plunder Law, which deals with conspiracy as a means of incurring criminal liability.[19]

Respondents likewise contend that it is within the inherent powers and wisdom of the legislature to determine which acts are mala prohibita in the same way that it can declare punishable an act which is inherently not criminal in nature.[20]

In conclusion, Respondents assert that petitioner has failed to overcome the presumption of constitutionality of R.A. No. 7080.

Petitioner’s Reply

Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the provision states the “most important element, which is the common thread that ties the component acts together: “a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy[21] and  raises the following questions:

(a) Reference is made to a “pattern  of overt or criminal acts.”  The disjunctive “or” is used.  Will a pattern of acts, which are overt but not criminal in themselves, be indicative of an overall unlawful scheme or conspiracy?

(b) Under what specific facts or circumstances will a “pattern”  be “indicative”  of the overall unlawful scheme or conspiracy?

(c) Under what specific facts or circumstances will the required “pattern” or “scheme” even be said to be present or to exist?

(d) When is there an “unlawful scheme or conspiracy?”[22]

Issues raised in the oral arguments

Oral arguments were heard on September 18, 2001.  At said hearing, the Court defined the issues for resolution as follows:

1.)  WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;

2)  WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING THE PREDICATE CRIMES OF PLUNDER AND THEREFORE VIOLATES THE RIGHT OF THE ACCUSED TO DUE PROCESS;  and

3)  WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM PROHIBITUM AND IF SO, WHETHER IT IS WITHIN THE POWER OF CONGRESS TO SO CLASSIFY THE SAME.[23]

Thereafter, both parties filed their respective memoranda in which they discussed the points which they raised in their earlier pleadings and during the hearing.

I believe that there is merit in the petition.

A penal statute which violates constitutional
guarantees of individual rights is void.

Every law enacted by Congress enjoys a presumption of constitutionality,[24] and the presumption prevails in the absence of contrary evidence.[25] A criminal statute is generally valid if it does not violate constitutional guarantees of individual rights.[26] Conversely, when a constitutionally protected right of an individual is in danger of being trampled upon by a criminal statute, such law must be struck down for being void.[27]

One of the fundamental requirements imposed by the Constitution upon criminal statutes is that pertaining to clarity and definiteness. Statutes, particularly penal laws, that fall short of this requirement have been declared unconstitutional for being vague. This “void-for-vagueness” doctrine is rooted in the basic concept of fairness as well as the due process clause of the Constitution.

The Constitution guarantees both substantive and procedural due process[28] as well as the right of the accused to be informed of the nature and cause of the accusation against him.[29] A criminal statute should not be so vague and uncertain that “men of common intelligence must necessarily guess as to its meaning and differ as to its application.[30]

There are three distinct considerations for the vagueness doctrine.  First, the doctrine is designed to ensure that individuals are properly warned ex ante of the criminal consequences of their conduct.  This “fair notice” rationale was articulated in United States v. Harriss:[31]

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.  The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.[32]

Second, and viewed as more important, the doctrine is intended to prevent arbitrary and discriminatory law enforcement.[33] Vague laws are invariably “standardless” and as such, they afford too great an opportunity for criminal enforcement to be left to the unfettered discretion of police officers and prosecutors.[34] Third, vague laws fail to provide sufficient guidance to judges who are charged with interpreting statutes.  Where a statute is too vague to provide sufficient guidance, the judiciary is arguably placed in the position of usurping the proper function of the legislature by "making the law" rather than interpreting it.[35]

While the dictum that laws be clear and definite does not require Congress to spell out with mathematical certainty the standards to which an individual must conform his conduct,[36] it is necessary that statutes provide reasonable standards to guide prospective conduct.[37] And where a statute imposes criminal sanctions, the standard of certainty is higher.[38] The penalty imposable on the person found guilty of violating R.A. No. 7080 is reclusion perpetua to death.[39] Given such penalty, the standard of clarity and definiteness required of R.A. No. 7080 is unarguably higher than that of other laws.[40]

Void-for-vagueness doctrine
applies to criminal laws.

A view has been proffered that “vagueness and overbreadth doctrines are not applicable to penal laws.”[41] These two concepts, while related, are distinct from each other.[42] On one hand, the doctrine of overbreadth applies generally to statutes that infringe upon freedom of speech.[43] On the other hand, the “void-for-vagueness” doctrine applies to criminal laws, not merely those that regulate speech or other fundamental constitutional rights.[44] The fact that a particular criminal statute does not infringe upon free speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed.[45]

As earlier intimated, the “vagueness doctrine” is anchored on the constitutionally-enshrined  right to due process of law.  Thus, as in this case that the “life, liberty and property” of petitioner is involved, the Court should not hesitate to look into whether a criminal statute has sufficiently complied with the elementary requirements of definiteness and clarity.  It is an erroneous argument that the Court cannot apply the vagueness doctrine to penal laws.  Such stance is tantamount to saying that no criminal law can be challenged however repugnant it is to the constitutional right to due process.

While admittedly, penal statutes are worded in reasonably general terms to accomplish the legislature’s objective of protecting the public from socially harmful conduct, this should not prevent a vagueness challenge in cases where a penal statute is so indeterminate as to cause the average person to guess at its meaning and application.  For if a statute infringing upon freedom of speech may be challenged for being vague because such right is considered as fundamental, with more reason should a vagueness challenge with respect to a penal statute be allowed since the latter involve deprivation of liberty, and even of life which, inarguably, are rights as important as, if not more than, free speech.

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

In Kolender v. Lawson,[51] petitioners assailed the constitutionality of a California criminal statute which required persons who loiter or wander on the streets to provide a credible and reasonable identification and to account for their presence when requested by a peace officer under circumstances that would justify a valid stop.  The U.S. Supreme Court held that said statute was unconstitutionally vague on its face within the meaning of the due process clause of the Fourteenth Amendment because it encourages arbitrary enforcement by failing to clarify what is contemplated by the requirement that a suspect provide a “credible and reasonable identification.” Springfield vs. Oklahoma[52] on the other hand involved a challenge to a Columbus city ordinance banning certain assault weapons.  The court therein stated that  a criminal statute may be facially invalid even if it has some conceivable application.  It went on to rule that the assailed ordinance’s definition of “assault weapon” was unconstitutionally vague, because it was “fundamentally irrational and impossible to apply consistently by the buying public, the sportsman, the law enforcement officer, the prosecutor or the judge.”[53]

It is incorrect to state that petitioner has made “little effort to show the alleged invalidity of the statute as applied to him, as he allegedly “attacks ‘on their face’ not only  §§ 1(d)(1) and (2) of R.A. 7080 under which he is charged, but also its other provisions which deal with plunder committed by illegal or fraudulent disposition of government assets (§1(d)(3)), acquisition of interest in business (§1(d)(4)), and establishment of monopolies and combinations or implementation of decrees intended to benefit particular persons or special interests (§ 1(d)(5)).”[54] Notably, much of petitioner’s arguments dealt with the vagueness of the key phrases “combination or series” and “pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy” which go into the very nature of the crime for which he is charged.

Taking into consideration that the Plunder Law is a penal statute that imposes the supreme penalty of death, and that petitioner in this case clearly has standing to question its validity inasmuch as he has been charged thereunder and that he has been for sometime now painfully deprived of his liberty, it behooves this Court to address the challenge on the validity of R.A. No. 7080.  

Men steeped in law find

difficulty in understanding plunder.

The basic question that arises, therefore, is whether the clauses in Section 2--

combination or series of overt or criminal acts as described in Section 1(d) hereof

and Section 1(d), which provides--

x x x  by any combination or series of the following means or similar schemes:

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

x x x

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

as qualified by Section 4 which also speaks of the “scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth” and of “a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy,” are clear enough that a person “of common intelligence” need not guess at their meaning and differ as to their application.

The above raise several difficult questions of meaning which go to the very essence of the offense, such as:

a.  How many acts would constitute a “combination or series?”

b.  Must the acts alleged to constitute the “combination or series” be similar in nature?  Note that Section 1(d) speaks of “similar schemes” while Section 4 speaks of “the scheme” and of “a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.”

c.  Must the “combination or series” of “overt or criminal acts” involving the aggregate amount of at least P50 million be conceived as such a scheme or a “pattern of overt or criminal acts” from inception by the accused?

d.  What would constitute a “pattern”? What linkage must there be between and among the acts to constitute a “pattern”?  Need there be a linkage as to the persons who conspire with one another, and a linkage as to all the acts between and among them?

e. When Section 4 speaks of “indicative of the overall unlawful scheme or conspiracy,” would this mean that the “scheme” or “conspiracy” should have been conceived or decided upon in its entirety, and by all of the participants?

f.  When committed in connivance “with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons” or through “dummies, nominees, agents, subordinates and/or business associates”, would such fact be part of the “pattern of overt or criminal acts” and of the “overall unlawful scheme or conspiracy” such that all of those who are alleged to have participated in the crime of plunder must have participated in each and every act allegedly constituting the crime of plunder?  And as in conspiracy, conspired together from inception to commit the offense?

g.   Within what time frame must the acts be committed so as to constitute a “combination or series"?

I respectfully disagree with the majority that "ascertainable standards and well-defined parameters" are provided in the law[55] to resolve these basic questions.

Even men steeped in the knowledge of the law are in a quandary as to what constitutes plunder.  The Presiding Justice of the Sandiganbayan, Justice Francis Garchitorena, admitted that the justices of said court “have been quarrelling with each other in finding ways to determine what [they] understand by plunder.”[56] Senator Neptali Gonzales also noted during the deliberations of Senate Bill No. 733 that the definition of plunder under the law is vague.  He bluntly declared: "I am afraid that it might be faulted for being violative of the due process clause and the right  to  be  informed  of  the  nature  and cause of the accusation of an accused.[57] Fr. Bernas, for his part, pointed to several problematical portions of the law that were left unclarified.  He posed the question: "How can you have a 'series' of criminal acts if the elements that are supposed to constitute the series are not proved to be criminal?"[58]

The meanings of “combination” and “series”

 as used in R.A. No. 7080 are not clear.

Although the law has no statutory definition of “combination” or “series”, the majority is of the view that resort can be had to the ordinary meaning of these terms.  Thus, Webster's Third New International Dictionary gives the meaning of "combination": "the result or product or product of combining: a union or aggregate made of combining one thing with another."[59]

In the context of R.A. No. 7080, “combination” as suggested by the Solicitor General means that at least two of the enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts, combined with another act falling under any other of the enumerated means may constitute the crime of plunder.  With respect to the term “series,” the majority states that it has been understood as pertaining to “two or more overt or criminal acts falling under the same category"[60] as gleaned from the deliberations on the law in the House of Representatives and the Senate.

Further, the import of “combination” or “series” can be ascertained, the majority insists,[61] from the following deliberations in the Bicameral Conference Committee on May 7, 1991:

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

THE CHAIRMAN (REP. GARCIA):  Yeah, because we say series.

REP. ISIDRO:  Series.

THE CHAIRMAN (REP. GARCIA):  Yeah, we include series.

REP. ISIDRO:  But we say we begin with a combination.

THE CHAIRMAN:  (REP. GARCIA):  Yes.

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

THE CHAIRMAN (REP. GARCIA):  Two.

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

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

REP. ISIDRO:  Not twice?

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

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

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

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

THE CHAIRMAN (REP. GARCIA):  A series.

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

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

HON. ISIDRO:  I know what you are talking about.   For example, through misappropriation, conversion, misuse or malversation of public funds who raids the public treasury, now, for example, misappropriation, if there are a series of misappropriations?

x x x

THE CHAIRMAN (REP. GARCIA):  Series.   One after the other eh di…

THE CHAIRMAN (SEN TAÑADA):  So that would fall under term “series”?

THE CHAIRMAN (REP. GARCIA):  Series, oo.

REP. ISIDRO:  Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA):  It’s not… two misappropriations will not be combination.   Series.

REP. ISIDRO:  So, it is not a combination?

THE CHAIRMAN (REP. GARCIA):  Yes.

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

THE CHAIRMAN (REP. GARCIA):  Yes.

THE CHAIRMAN (SEN. TAÑADA):  Two different.

REP. ISIDRO:  Two different acts.

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

REP. ISIDRO:  Now a series, meaning, repetition…[62]

The following deliberations in the Senate are pointed to by the majority[63] to show that the words "combination" and "series" are given their ordinary meaning:

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

Senator Tañada.   That would mean a combination of two or more of the acts mentioned in this.

The President.   Probably, two or more would be….

Senator Maceda.   Yes, because ‘a series’ implies several or many’ two or more.

Senator Tañada.  Accepted, Mr. President.

x x x

The President.   If there is only one, then he has to be prosecuted under the particular crime.   But when we say ‘acts of plunder’ there should be, at least, two or more.

Senator Romulo.   In other words, that is already covered by existing laws, Mr. President.[64]

To my mind, resort to the dictionary meaning of the terms “combination” and “series” as well as recourse to the deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the strict requirements of the Constitution on clarity and definiteness.  Note that the key element to the crime of plunder is that the public officer, by himself or in conspiracy with others, amasses, accumulates, or acquires “ill-gotten wealth” through a “combination or series of overt or criminal acts” as described in Section 1(d) of the law.   Senator Gonzales, during the deliberations in the Senate, already raised serious concern over the lack of a statutory definition of what constitutes “combination” or “series”, consequently, expressing his fears that Section 2 of R.A. No. 7080 might be violative of due process:

Senator Gonzales.  To commit the offense of plunder, as defined in this Act and while constituting a single offense, it must consist of a series of overt or criminal acts, such as bribery, extortion, malversation of public funds, swindling, illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I think, this provision, by itself will be vague. I am afraid that it might be faulted for being violative of the due process clause and the right to be informed of the nature and cause of accusation of an accused.   Because, what is meant by “series of overt or criminal acts”? I mean, would 2, 3, 4 or 5 constitute a series? During the period of amendments, can we establish a minimum of overt acts like, for example, robbery in band? The law defines what is robbery in band by the number of participants therein. In this particular case probably, we can statutorily provide for the definition of “series” so that two, for example, would that be already a series? Or, three, what would be the basis for such determination?[65] (Emphasis supplied.)

The point raised by Senator Gonzales is crucial and well-taken. I share petitioner’s observation that when penal laws enacted by Congress make reference to a term or concept requiring a quantitative definition, these laws are so crafted as to specifically state the exact number or percentage necessary to constitute the elements of a crime.  To cite a few:

“Band” – “Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band.” (Article 14[6], Revised Penal Code)[66]

“Conspiracy” – “A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.” (Article 8, Revised Penal Code)[67]

“Illegal Recruitment by a Syndicate” – “Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying  out any unlawful or illegal transaction, enterprise or scheme x  x  x.”  (Section 38, Labor Code)

“Large-scale Illegal Recruitment” – “Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.” (Section 38, Labor Code)

“Organized/Syndicated Crime Group” – “[M]eans a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime.”  (Article 62 (1)(1a),  Revised Penal Code)[68]

“Swindling by a Syndicate” – “x x x  if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme x x x .”  (Section 1, P.D. No. 1689)[69]

The deliberations of the Bicameral Conference Committee and of the Senate cited by the majority, consisting mostly of unfinished sentences, offer very little help in clarifying the nebulous concept of plunder.  All that they indicate is that Congress seemingly intended to hold liable for plunder a person who: (1) commits at least two counts of any one of the acts mentioned in Section 1(d) of R.A. No. 7080, in which case, such person commits plunder by a series of overt criminal acts; or (2) commits at least one count of at least two of the acts mentioned in Section 1(d), in which case, such person commits plunder by a combination of overt criminal acts.  Said discussions hardly provide a window as to the exact nature of this crime.

A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada would imply that initially, combination was intended to mean “two or more means,”[70] i.e., “number one and two or number one and something else x x x,”[71] “two of the enumerated means not twice of one enumeration,”[72] “two different acts.”[73] Series would refer to “a repetition of the same act.”[74] However, the distinction was again lost as can be gleaned from the following:

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

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

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

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

THE CHAIRMAN (REP. GARCIA).  A series.

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

THE CHAIRMAN (REP. GARCIA).  Yes.  This distinguishes it really the ordinary --- That’s why I said, that’s a very good suggestion, because if its’ only one act, it may fall under ordinary crime.  But we have here a combination or series, of overt or criminal acts” (Emphasis supplied).[75]

x x x

THE CHAIRMAN (REP. GARCIA P.)  Series.  One after the other eh di…

THE CHAIRMAN (SEN. TAÑADA)  So, that would fall under the term “series”?

THE CHAIRMAN (REP. GARCIA P)  Series, oo.

REP. ISIDRO.  Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA)  It’s not… two misappropriations will not be combination.  Series.

REP. ISIDRO.  So, it is not a combination?

THE CHAIRMAN. (REP. GARCIA P.)  Yes.

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

THE CHAIRMAN (REP. GARCIA P.)  Yes.

THE CHAIRMAN (SEN. TAÑADA)  Two different.

REP. ISIDRO.  Two different acts.

THE CHAIRMAN (REP. GARCIA P.)  For example, ha…

REP. ISIDRO.  Now a series, meaning, repetition…

THE CHAIRMAN (SEN. TAÑADA) Yes.

REP. ISIDRO.  With that…

THE CHAIRMAN (REP. GARCIA P.)  Thank you.

THE CHAIRMAN (SEN. TAÑADA)  So, it could be a series of any of the acts mentioned in paragraphs 1, 3, 4, 5 of Section 2 (d), or… 1 (d) rather, or a combination of any of the acts mentioned in paragraph 1 alone, or paragraph 2 alone or paragraph 3 or paragraph 4.

THE CHAIRMAN (REP. GARCIA P.)  I think combination maybe…which one?  Series?

THE CHAIRMAN (SEN. TAÑADA)  Series or combination.

REP. ISIDRO.  Which one, combination or series or series or combination?

THE CHAIRMAN (SEN. TAÑADA)  Okay.  Ngayon doon sa definition, ano, Section 2, definition, doon sa portion ng… Saan iyon?  As mentioned, as described…

THE CHAIRMAN (REP. GARCIA P.)  Described.  I think that is…

THE CHAIRMAN (SEN. TAÑADA)  … better than “mentioned”.  Yes.

THE CHAIRMAN (REP. GARCIA P.)  Okay?

REP. ISIDRO.  Very good.

THE CHAIRMAN. (SEN. TAÑADA)  Oo, marami pong salamat.

THE CHAIRMAN (REP. GARCIA P.)  Maraming salamat po.

The meeting was adjourned at 1:33 p.m.”[76] (Emphasis supplied.)

The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to render precise the definition of the terms.  Phrases were uttered but were left unfinished. The examples cited were not very definite.  Unfortunately, the deliberations were apparently adjourned without the Committee members themselves being clear on the concept of series and combination.

Moreover, if “combination” as used in the law simply refers to the amassing, accumulation and acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of the means enumerated in Section 1(d), and “series,” to at least two counts of one of the modes under said section, the accused could be meted out the death penalty for acts which, if taken separately, i.e., not considered as part of the combination or series, would ordinarily result in the imposition of correctional penalties only.  If such interpretation would be adopted, the Plunder law would be so oppressive and arbitrary as to violate due process and the constitutional guarantees against cruel or inhuman punishment.[77] The penalty would be blatantly disproportionate to the offense.  Petitioner’s examples illustrate this absurdity:

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

combined with  -

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

equals –

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

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

combined with –

one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code with prision correccional in its minimum or a fine ranging from P200 to P6,00, or both.

equals –

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

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

combined with –

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

equals –

plunder (punished by  reclusion perpetua to death, and forfeiture of assets).[78]

The argument that higher penalties may be imposed where two or more distinct criminal acts are combined and are regarded as special complex crimes, i.e., rape with homicide, does not justify the imposition of the penalty of reclusion perpetua to death in case plunder is committed. Taken singly, rape is  punishable by reclusion perpetua;[79] and homicide, by reclusion temporal.[80] Hence, the increase in  the penalty imposed when these two are considered together as a special complex crime is not too far from the penalties imposed for each of the single offenses.  In contrast, as shown by the examples above, there are instances where the component crimes of plunder, if taken separately, would result in the imposition of correctional penalties only;  but when considered as forming part of a series or combination of acts constituting plunder, could be punishable by reclusion perpetua to death.  The disproportionate increase in the penalty is certainly violative of substantive due process and constitute a cruel and inhuman punishment.

It may also be pointed out that the definition of “ill-gotten wealth” in Section 1(d) has reference to the acquisition of property (by the accused himself or in connivance with others) “by any combination or series” of the “means” or “similar schemes”  enumerated therein, which include the following:

x x x

4.  By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other forms of interest or participation including the promise of future employment or any business enterprise or undertakings;

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

x x x

The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts.  They involve the exercise of the right to liberty and property guaranteed by Article III, Section 1 of the Constitution which provides that “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”  Receiving or accepting any shares of stock is not per se objectionable.  It is in pursuance of civil liberty, which includes “the right of the citizen to be free to use his faculties in all lawful ways;  x x x to earn his livelihood by any lawful calling; to pursue any avocation, and/or that purpose, to enter into all contracts which may be proper, necessary and essential to his carrying out these purposes to a successful conclusion.[81] Nor is there any impropriety, immorality or illegality in establishing agricultural, industrial or commercial monopolies or other combination and/or implementation of decrees and orders even if they are intended to benefit particular persons or special interests.  The phrases “particular persons” and “special interests” may well refer to the poor,[82] the indigenous cultural communities,[83] labor,[84] farmers,[85] fisherfolk,[86] women,[87] or those connected with education, science and technology, arts, culture and sports.[88]

In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code are punishable because, as specifically defined therein, they are “on restraint of trade or commerce or to prevent by artificial means of free competition in the market, or the object is “to alter the price” of any merchandise “by spreading false rumors,” or to manipulate market prices in restraint of trade.  There are no similar elements of monopolies or combinations as described in the Plunder Law to make the acts wrongful.

If, as interpreted by the Solicitor General, “series” means a  “repetition” or pertains to “two or more” acts, and “combination as defined in the Webster’s Third New International Dictionary is “the result or product of combining one thing with another,”[89] then, the commission of two or more acts falling under paragraphs (4) and (5) of  Section 1(d) would make innocent acts protected by the Constitution as criminal, and punishable by reclusion perpetua to death.

R.A. No. 7080 does not define “pattern,”

 an essential element of the crime of plunder.

Granting arguendo that, as asserted by the majority, “combination” and “series” simplistically mean the commission of two or more of the acts enumerated in Section 1(d),[90] still, this interpretation does not cure the vagueness of R.A. No. 7080.   In construing the definition of “plunder,” Section 2 of R.A. No. 7080 must not be read in isolation but rather, must be interpreted in relation to the other provisions of said law.  It is a basic rule of statutory construction that to ascertain the meaning of a law, the same must be read in its entirety.[91] Section 1 taken in relation to Section 4 suggests that there is something to plunder beyond simply the number of acts involved and  that a grand scheme to amass, accumulate or acquire ill-gotten wealth is contemplated by R.A. No. 7080.   Sections 1 and 2 pertain only to the nature and quantitative means or acts by which a public officer, by himself or in connivance with other persons, “amasses, accumulates or acquires ill-gotten wealth.”  Section 4, on the other hand, requires the presence of elements other than those enumerated in Section 2 to establish that the crime of plunder has been committed because it speaks of the necessity to establish beyond reasonable doubt a “pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.”

Clearly, it will not suffice that the “illegal wealth” amassed is at least Fifty Million Pesos and that this was acquired by any two or more of the acts described in Section 1(d); it is necessary that these acts constitute a “combination or series” of acts done in furtherance of “the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth”, and which constitute “a pattern of overt or criminal acts indicative of the overall scheme or conspiracy.”

That pattern is an essential element of the crime of plunder is evident from a reading of the assailed law in its entirety. It is that which would distinguish plunder from isolated criminal acts punishable under the Revised Penal Code and other laws, for without the existence a “pattern of overt or criminal acts indicative of the overall scheme or conspiracy” to acquire ill-gotten wealth, a person committing several or even all of the acts enumerated in Section 1(d) cannot be convicted for plunder, but may be convicted only for the specific crimes committed under the pertinent provisions of the Revised Penal Code or other laws.

For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of procedure.   It does not become such simply because its caption states that it is, although its wording indicates otherwise.   On the contrary, it is of substantive character because it spells out a distinctive element of the crime which has to be established,  i.e., an overall unlawful “scheme or conspiracy” indicated by a “pattern of overt or criminal acts” or means or similar schemes “to amass, accumulate or acquire ill-gotten wealth.” 

The meaning of the phrase “pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy,” however, escapes me.  As in “combination” and “series,” R.A. No. 7080 does not provide a definition of “pattern” as well as “overall unlawful scheme.”  Reference to the legislative history of R.A. No. 7080  for guidance as to the meanings of these concepts would be unavailing, since the records of the deliberations in Congress are silent as to what the lawmakers mean by these terms.

Resort to the dictionary meanings of “pattern” and “scheme” is, in this case, wholly inadequate.  These words are defined as:

pattern: an arrangement or order of things or activity.[92]

scheme: design; project; plot.[93]

At most, what the use of these terms signifies is that while multiplicity of the acts (at least two or more) is necessary, this is not sufficient to constitute plunder.  As stated earlier, without the element of “pattern” indicative of an “overall unlawful scheme,” the acts merely constitute isolated or disconnected criminal offenses punishable by the Revised Penal Code or other special laws. 

The commission of two or more of the acts falling under Section 1(d) is no guarantee that they fall into a “pattern” or “any arrangement or order.”  It is not the number of acts but the relationship that they bear to each other or to some external organizing principle that renders them “ordered” or “arranged”:

A pattern is an arrangement or order of things, or activity, and the mere fact that there are a number of predicates is no guarantee that they fall into an arrangement or order.  It is not the number of predicates but the relationship that they bear to each other or to some external organizing principle that renders them ‘ordered’ or ‘arranged.’ [94]

In any event, it is hardly possible that two predicate acts can form a pattern:

The implication is that while two acts are necessary, they may not be sufficient.  Indeed, in common parlance, two of anything will not generally form a ‘pattern.’[95]

In H. J. Inc. v. Northwestern Bell Telephone Co. et al.[96] (hereinafter referred to as Northwestern),  the U.S. Court reiterated the foregoing doctrine:

xxx  Nor can we agree with those courts that have suggested that a pattern is established merely by proving two predicate acts.[97]

Respondents’ metaphorical illustration of "pattern" as a wheel with spokes (the overt or criminal acts of the accused) meeting at a common center (the acquisition of ill-gotten wealth) and with a rim (the overall unlawful scheme or conspiracy) of the wheel enclosing the spokes, is off tangent.  Their position that two spokes suffice to make a wheel, even without regard to the relationship the spokes bear to each other clearly demonstrates the absurdity of their view, for how can a wheel with only two spokes which are disjointed function properly?

That “pattern” is an amorphous concept even in U.S. jurisprudence where the term is reasonably defined is precisely the point of the incisive concurring opinion of  Justice Antonin Scalia in Northwestern where he invited a constitutional challenge to the RICO law on “void-for-vagueness” ground.[98] The RICO law is a federal statute in the United States that provides for both civil and criminal penalties for violation therefor.  It incorporates by reference twenty-four separate federal crimes and eight types of state felonies.[99] One of the key elements of a RICO violation is that the offender is engaged in a “pattern of racketeering activity.”[100] The RICO law defines the phrase “pattern of racketeering activity” as requiring “at least two acts of racketeering activity, one of which occurred after the effective date of 18 USCS § 1961, and within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.”[101] Incidentally, the Solicitor General claims that R.A. No. 7080 is an entirely different law from the RICO law.  The deliberations in Congress reveal otherwise.  As observed by Rep. Pablo Garcia, Chairman of the House of Representatives Committee on Justice, R.A. No. 7080 was patterned after the RICO law.[102]

In Northwestern, conceding that “[the U.S. Congress] has done nothing . . . further to illuminate RICO’s key requirement of a pattern of racketeering,” the U.S. Supreme Court, through Justice William J. Brennan, Jr., undertook the task of developing a meaningful concept of “pattern” within the existing statutory framework.[103]