DISSENTING OPINION

SANDOVAL–GUTIERREZ, J.:

At times when speaking against popular views can subject a member of this Court to all sorts of unfair criticism and pressure from the media, the lure not to wield the judicial pen is at its crest. Nevertheless, I cannot relent to such enticement. Silence under such circumstances may mean not only weakness, but also insensibility to the legal consequence of a constitutional adjudication bound to affect not only the litigants, but the citizenry as well. Indeed, the core issue in this case is highly significant, the resolution of which is inevitably historical. Thus, today, I prefer to take a stand and, therefore, dissent from the majority opinion.

It is beyond dispute that Republic Act No. 7080 (R.A. No. 7080),[1] entitled "An Act Penalizing the Crime of Plunder," is controversial and far-reaching. Nonetheless, it is my view that it is also vague and fuzzy, inexact and sweeping. This brings us to the query - may R.A. No. 7080 be enforced as valid and its shortcomings supplied by judicial interpretation? My answer, to be explained later, is "NO."

As a basic premise, we have to accept that even a person accused of a crime possesses inviolable rights founded on the Constitution which even the welfare of the society as a whole cannot override. The rights guaranteed to him by the Constitution are not subject to political bargaining or to the calculus of social interest. Thus, no matter how socially-relevant the purpose of a law is, it must be nullified if it tramples upon the basic rights of the accused.

Enshrined in our Constitution is the ultimate guaranty that “no person shall be deprived of life, liberty, or property without due process of law.”[2] This provision in the Bill of Rights serves as a protection of the Filipino people against any form of arbitrariness on the part of the government, whether committed by the legislature, the executive or the judiciary. Any government act that militates against the ordinary norms of justice and fair play is considered an infraction of the due process; and this is true whether the denial involves violation merely of the procedure prescribed by law or affects the very validity of the law itself.[3]

The same Due Process Clause protects an accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The reason for this was enunciated in In Re Winship:[4] “[t]he accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty (or life) upon conviction and because of the certainty that he would be stigmatized by the conviction.” In view thereof, any attempt on the part of the legislature to diminish the requirement of proof in criminal cases should be discouraged.

I

R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did not directly lower the degree of proof required in the crime of plunder from proof beyond reasonable doubt to mere preponderance of or substantial evidence, it nevertheless lessened the burden of the prosecution by dispensing with proof of the essential elements of plunder. Let me quote the offending provision:

SEC. 4. 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.

In every criminal prosecution, the law recognizes certain elements as material or essential. Calling a particular fact an “essential element” carries certain legal consequences. In this case, the consequence that matters is that the Sandiganbayan cannot convict the accused unless it unanimously[5] finds that the prosecution has proved beyond reasonable doubt each element of the crime of plunder.

What factual elements must be proved beyond reasonable doubt to constitute the crime of plunder?

Ordinarily, the factual elements that make up a crime are specified in the law that defines it. Under R.A. No 7080, as amended, the essential elements of the crime of plunder are: a) that the offender is a public officer; b) that he amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts described in Section 1 (d), to wit:

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 subdivision, agencies or instrumentalities or government –owned or controlled corporations and their subsidiaries;

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

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular person 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.

and c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos (P50,000,000.00).[6]

Does the phrase “combination or series of overt or criminal acts described in Section 1 (d)” mean that the “criminal acts” merely constitute the means to commit plunder? Or does it mean that those “criminal acts,” are essential elements of plunder?

When Section 4 of R.A. No. 7080 mandates that it shall not be necessary for the prosecution to prove each and every criminal act done by the accused, the legislature, in effect, rendered the enumerated “criminal acts” under Section 1 (d) merely as means and not as essential elements of plunder. This is constitutionally infirmed and repugnant to the basic idea of justice and fair play.[7] As a matter of due process, the prosecution is required to prove beyond reasonable doubt every fact necessary to constitute the crime with which the defendant is charged. The State may not specify a lesser burden of proof for an element of a crime.[8] With more reason, it should not be allowed to go around the principle by characterizing an essential element of plunder merely as a "means" of committing the crime. For the result is the reduction of the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt.

Let me elucidate on the vices that come with Section 4.

First, treating the specific "criminal acts" merely as means to commit the greater crime of plunder, in effect, allows the imposition of the death penalty even if the Justices of the Sandiganbayan did not "unanimously" find that the accused are guilty beyond reasonable doubt of those "criminal acts." The three Justices need only agree that the accused committed at least two of the criminal acts, even if not proved by evidence beyond reasonable doubt. They do not have to agree unanimously on which two.

Let us consider the present case against former President Joseph Ejercito Estrada. The accusatory portion of the information in Criminal Case No. 26558 charges Mr. Estrada and others of willfully, unlawfully and criminally amassing, accumulating and acquiring ill-gotten wealth 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 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 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 the 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 witnesses 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 P681,733,000. shares of stock of Belle Corporation in the aggregate value of One Billion Eight Hundred Forty Seven 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 PESOS (P189,700,000.00), as commission from 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."

Since it is not necessary to prove each criminal act, the inevitable conclusion is that Mr. Estrada may be convicted of the crime of plunder without the Justices of the Sandiganbayan “unanimously” deciding which two of the four criminal acts have actually been committed. In short, all that R.A. No. 7080 requires is that each Justice must be convinced of the existence of a “combination or series.” As to which criminal acts constitute a combination or series, the Justices need not be in full agreement. Surely, this would cover-up a wide disagreement among them about just what the accused actually did or did not do. Stated differently, even if the Justices are not unified in their determination on what criminal acts were actually committed by the accused, which need not be proved under the law, still, they could convict him of plunder.

Considering that what R.A. No. 7080 punishes is the plurality of criminal acts indicative of the grand scheme or conspiracy to amass ill-gotten wealth, it is imperative to focus upon the individual “criminal acts” in order to assure the guilt of the accused of plunder.

Second, R.A. No. 7080 lumps up into one new offense of plunder six (6) distinct crimes which by themselves are currently punishable under separate statutes or provisions of law. The six (6) separate crimes become mere "means or similar schemes" to commit the single offense of plunder. It bears emphasis that each of the separate offenses is a crime mala in se. The commission of any offense mala in se is inherently accompanied by a guilty mind or a criminal intent.[9] Unfortunately, R.A. No. 7080 converted the six mala in se offenses into one crime which is mala prohibita wherein the intent becomes insignificant. Upon the commission of the proscribed act, without proof of intent, the law is considered violated.[10] Consequently, even acts recklessly committed (i.e. without intent) can be punished by death.

Third, Section 4 mandates that it shall not be necessary for the prosecution to prove each and every criminal act done by the accused x x x it being sufficient to prove beyond reasonable doubt a pattern of overt or criminal acts. By its own terminology, Section 4 requires that the "pattern" be proved by evidence beyond reasonable doubt. Initially, we must disassociate the specific “criminal acts” from the “pattern of criminal acts.” These two phrases do not refer to one and the same thing. Pattern, as defined in the dictionary, means an established mode of behavior.[11] In the crime of plunder, the existence of a “pattern” can only be inferred from the specific “criminal acts” done by the accused. Several queries may be raised to determine the existence of a "pattern." Are these criminal acts related or tied to one another? Is the subsequent criminal act a mere continuation of the prior criminal act? Do these criminal acts complement one another as to bring about a single result? Inevitably, one must focus first on each criminal act to ascertain the relationship or connection it bears with the other criminal acts, and from there determine whether a certain “pattern” exists. But how could “pattern” be proved beyond reasonable doubt when in the first place the specific “criminal acts” from which such pattern may be inferred are not even required to be proved?

And fourth, plunder is a very serious offense. What is at stake under the law is not only the liberty of the accused but his life and property as well. Thus, it will be extremely unjust to lessen the prosecution’s burden of proof to such a degree not commensurate to what the accused stands to suffer. If a person will lose his life, justice requires that every fact on which his guilt may be inferred must be proved beyond reasonable doubt.

Providing a rule of evidence which does not require proof beyond reasonable doubt to establish every fact necessary to constitute the crime is a clear infringement of due process. While the principles of the law of evidence are the same whether applied on civil or criminal trials, they are more strictly observed in criminal cases.[12] Thus, while the legislature of a state has the power to prescribe new or alter existing rules of evidence, or to prescribe methods of proof, the same must not violate constitutional requirements or deprive any person of his constitutional rights.[13] Unfortunately, under R.A. No. 7080, the State did not only specify a lesser burden of proof to sustain an element of the crime; it even dispensed with proof by not considering the specific “criminal acts” as essential elements. That it was the clear intention of the legislature is evident from the Senate deliberation, thus:

“Senator Guingona. Since it is a series or a scheme,what amount of evidence will, therefore, be required? Must there be a pattern of the criminal acts? Must there be a series of briberies, for example? Or, can there be only one?

Senator Tanada. Under Section 4 of the bill, Mr. President, it is provided that:

“For purposes of establishing the OFFENSE, 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… But, there must be enough evidence “sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts of the overall unlawful scheme or conspiracy.”

So, that is the quantum of evidence that would be required under this proposal measure.

Senator Guingona. That is sufficient to establish the prima facie case.[14]

x x x x x x

Senator Romulo. That, perhaps, is a good provision of the bill. But, may I ask, Mr. President, what is in this bill that would insure that there would be a speedier process by which this crime of plunder would readily and immediately processed and convicted or acquitted than is now existing in present laws?

Senator Tanada. Yes, x x x.

Now, on the second point, Mr. President, I believe that what could make faster and speedier prosecutions of these grafters would be a change that will be authorized in this bill, at least, in the filing of information against the perpetrators. Under the existing criminal procedure, as I said earlier, there can only be one offense charged per information. So, if there is going to be a series of overt or criminal acts committed by the grafter, then that would necessitate the filing of so many informations against him. Now, if this bill becomes a law, then that means that there can be only one information filed against the alleged grafter. And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[15]

x x x x x x

Senator Guingona. May I just be clarified Mr. President. In this Section 4, a pattern of the criminal acts is all that is required. Would this pattern of criminal acts be also sufficient to establish a prima facie case?

Senator Tanada. Mr. President, under Section 4, it would not only be sufficient to establish a prima facie case. It would be sufficient to establish guilt as long as the evidence, necessary to establish guilt beyond reasonable doubt is presented.”[16]

In dispensing with proof of each criminal act, the clear objective of Congress is to render it less difficult for the prosecution to prove the crime of plunder. While this presupposes a noble intention, I do not think there is a sufficient justification. I, too, have the strong desire to eliminate the sickness of corruption pervading in the Philippine government, but more than anything else, I believe there are certain principles which must be maintained if we want to preserve fairness in our criminal justice system. If the prosecution is not mandated to prove the specific “criminal acts,” then how can it establish the existence of the requisite “combination or series” by proof beyond reasonable doubt?

II

Another valid constitutional objection to R.A. No. 7080 is the vagueness of the term “pattern.” As stated by Mr. Justice Kapunan, in his Dissent, the concept of “pattern of overt or criminal acts” embodied in the law was derived by Congress from the RICO (Racketeer Influenced and Corrupt Organizations) statute.[17] I am, therefore, constrained to refer to US law and jurisprudence. “Pattern” as defined in the RICO statute means “as requiring at least two acts of racketeering activity….the last of which occurred within ten years….after the commission of the prior act of racketeering activity.[18]

Mr. Justice Kapunan observed that unlike the RICO law, the law on plunder does not specify a) the number of criminal acts necessary before there could be a “pattern,” as well as b) the period within which the succeeding criminal acts should be committed. These failures render the law void for its vagueness and broadness.

Indeed, Congress left much to be desired. I am at a quandary on how many delictual acts are necessary to give rise to a “pattern of overt or criminal acts” in the crime of plunder. If there is no numerical standard, then, how should the existence of “pattern” be ascertained? Should it be by proximity of time or of relationship? May an act committed two decades after the prior criminal act be linked with the latter for the purpose of establishing a pattern?

It must be remembered that plunder, being a continuous offense, the “pattern of overt or criminal acts” can extend indefinitely, i.e., as long as the succeeding criminal acts may be linked to the initial criminal act. This will expose the person concerned to criminal prosecution ad infinitum. Surely, it will undermine the purpose of the statute of limitations, i.e., to discourage prosecution based on facts obscured by the passage of time, and to encourage law enforcement officials to investigate suspected criminal activity promptly.[19] All these undesirable consequences arise from the fact that the plunder law fails to provide a period within which the next criminal act must be committed for the purpose of establishing a pattern. I believe R.A. No. 7080 should have provided a cut-off period after which a succeeding act may no longer be attached to the prior act for the purpose of establishing a pattern. In reiteration, the RICO law defines “pattern” as requiring at least two acts of racketeering activity… the last of which occurred within ten years… after the commission of the prior act of racketeering activity. Such limitation prevents a subsequent racketeering activity, separated by more than a decade from the prior act of racketeering, from being appended to the latter for the purpose of coming up with a pattern. We do not have the same safeguard under our law.

Significantly, in Sedima, S.P.R.L v. Imrex Co.,[20] the United States Supreme Court expressed dismay that Congress has failed to properly define the term “pattern” at all but has simply required that a “pattern” includes at least two acts of racketeering activity. The Court concluded that “pattern” involves something more than two acts, and after examining RICO’s legislative history, settled on “continuity plus relationship” as the additional requirement.

Years later, in H.C. Inc. v. The Northwestern Bell Tel.,[21] the U.S. Supreme Court conceded that “the continuity plus relationship” means different things to different circuits. Nevertheless, it held firm to the Sedima requirement that “in order to establish a pattern, the government has to show “that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” Justice Scalia, in a concurring opinion in which three other justices joined, derided the “relationship” requirement as not “much more helpful [to the lower courts] than telling them to look for a “pattern” - - which is what the statute already says.” As for the continuity requirement, Justice Scalia said: “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.”

Aware of the ambiguities present in the RICO law the drafters of the New York “Organized Crime Control Act” (a progeny of RICO) now more specifically define “pattern of criminal activity” as conduct engaged in by persons charged in an enterprise corruption count constituting three or more criminal acts that (a) were committed within ten years from the commencement of the criminal action; (b) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a criminal offense or criminal transaction, as those terms are defined in section 40.10 of the criminal procedure law; and (c) are either: (i) related to one another through a common scheme or plan or (ii) were committed, solicited, requested, importuned or intentionally aided by persons acting with the mental culpability required for the commission thereof and associated with or in the criminal enterprise.[22]

If the term “pattern” as defined in the RICO law is continuously subjected to constitutional attacks because of its alleged vagueness, how much more the term “pattern” in R.A. No. 7080 which does not carry with it any limiting definition and can only be read in context. Indeed, there is no doubt that the invalidity of the law based on vagueness is not merely debatable - it is manifest. Thus, this Court should declare R.A. No. 7080 unconstitutional.

III

Lastly, the terms “combination” and “series” are likewise vague. Hence, on the basis of the law, a conviction of an accused cannot be sustained. A statute that does not provide adequate standards for adjudication, by which guilt or innocence may be determined, should be struck down.[23] Crimes must be defined in a statute with appropriate certainty and definiteness.[24] The standards of certainty in a statute prescribing punishment for offenses are higher than in those depending primarily on civil sanctions for their enforcement.[25] A penal statute should therefore be clear and unambiguous.[26] It should explicitly establish the elements of the crime which it creates[27] and provide some reasonably ascertainable standards of guilt.[28] It should not admit of such a double meaning that a citizen may act on one conception of its requirements and the courts on another.[29]

I agree with the observation of Mr. Justice Kapunan that “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 requirement of the Constitution on clarity and definiteness.” The deliberations of our law-makers, as quoted verbatim in Justice Kapunan's Dissent, indeed, failed to shed light on what constitute “combination” and “series.”[30]

I believe this is fatal.

The essence of the law on plunder lies in the phrase “combination or series of overt or criminal acts.” As can be gleaned from the Record of the Senate, the determining factor of R.A. 7080 is the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of plunder if there is only a single criminal act.[31]

Considering that without plurality of overt or criminal acts, there can be no crime of plunder, due process of law demands that the terms “combination” and “series” be defined with exactitude in the law itself. Equating these terms with mere “plurality” or “two or more,” is inaccurate and speculative. For one, a “series” is a group of usually three or more things or events standing or succeeding in order and having like relationship to each other.[32] The Special Prosecution Division Panel defines it as “at least three of the acts enumerated under Section 1(d) thereof.”[33] But it can very well be interpreted as only one act repeated at least three times. And the Office of the Solicitor General, invoking the deliberations of the House of Representatives, contends differently. It defines the term series as a “repetition” or pertaining to “two or more.”[34] The disparity in the Prosecution and OSG’s positions clearly shows how imprecise the term “series” is.

This should not be countenanced. Crimes are not to be created by inference.[35] No one may be required, at the peril of life, liberty or property to guess at, or speculate as to, the meaning of a penal statute.[36] An accused, regardless of who he is, is entitled to be tried only under a clear and valid law.

Respondents argue that the vagueness of R.A. No. 7080, as amended, is cured when the Information clearly specified the acts constituting the crime of plunder. I do not agree. It is the statute and not the accusation under it that prescribes the rule to govern conduct and warns against aggression.[37] If on its face, a statute is repugnant to the due process clause on account of vagueness, specification in the Information of the details of the offense intended to be charged will not serve to validate it.[38]

On the argument that this Court may clarify the vague terms or explain the limits of the overbroad provisions of R.A. No. 7080, I should emphasize that this Court has no power to legislate.

Precision must be the characteristic of penal legislation. For the Court to define what is a crime is to go beyond the so-called positive role in the protection of civil liberties or promotion of public interests. As stated by Justice Frankfurter, the Court should be wary of judicial attempts to impose justice on the community; to deprive it of the wisdom that comes from self-inflicted wounds and the strengths that grow with the burden of responsibility.[39]

A statute which is so vague as to permit the infliction of capital punishment on acts already punished with lesser penalties by clearly formulated law is unconstitutional. The vagueness cannot be cured by judicial construction.

Also, not to be glossed over is the fact that R.A. 7080, as amended, is a novel law. Hence, there is greater need for precision of terms. The requirement that law creating a crime must be sufficiently explicit to inform those subject to it, what conduct on their part will render them liable to its penalties, has particular force when applied to statutes creating new offenses. For that reason, those statutes may not be generally understood, or may be subject of generally accepted construction.[40]

Today, I recall what James Madison remarked in presenting the Bill of Rights to the United States Congress in 1789: “if they (Bill of Rights) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; and they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”[41] Time did not render his foreboding stale. Indeed, in every constitutional democracy, the judiciary has become the vanguard of these rights. Now, it behooves this Court to strike an unconstitutional law. The result, I concede, may not be politically desirable and acceptable, nevertheless, I am fully convinced that it is constitutionally correct.

To recapitulate, R.A. No. 7080 is unconstitutional because it violates the DUE PROCESS CLAUSE of the Constitution. The vagueness of its terms and its incorporation of a rule of evidence that reduces the burden of the prosecution in proving the crime of plunder tramples upon the basic constitutional rights of the accused.

In fine, I can only stress that the one on trial here is not Mr. Estrada, but R.A. No. 7080. The issue before this Court is not the guilt or innocence of the accused, but the constitutionality of the law. I vote to grant the petition, not because I favor Mr. Estrada, but because I look beyond today and I see that this law can pose a serious threat to the life, liberty and property of anyone who may come under its unconstitutional provisions. As a member of this Court, my duty is to see to it that the law conforms to the Constitution and no other. I simply cannot, in good conscience, fortify a law that is patently unconstitutional.

WHEREFORE, I vote to grant the petition.

---

[1] As amended by Republic Act No. 7659 - "An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, other Special Penal Laws and for other Purpose (1993).

[2] Section 1, Article III of the 1987 Constitution.

[3] Cruz, Constitutional Law, 1995 Ed. p. 95.

[4] 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2^nd 368.

[5] Section 1 (b) Rule XVIII, Revised Rules of the Sandiganbayan

“The unanimous vote of three Justices in a division shall be necessary for the rendition of a judgment or order. In the event that three Justices do not reach a unanimous vote, the Presiding Justice shall designate by raffle two justices from among the other members of the Sandiganbayan to sit temporarily with them forming a special division of five Justices, and the vote of a majority of such special division shall be necessary for the rendition of a judgment or order.

[6] Section 2 of R.A. No. 7080.

[7] It is an elementary principle of criminal jurisprudence, a principle firmly embedded in the organic law of every free state and vindicated by statutory guarantee as well as by innumerable judicial decisions, that every criminal, however hideous his alleged crime, or however, debauched and fiendish his character, may require that the elements of that crime shall be clearly and indisputably defined by law, and that his commission of and relationship to the alleged offense shall be established by legal evidence delivered in his presence. (Rice, The Law of Evidence on Evidence, Vol. 3, p. 421.

[8] 29 Am Jur 2d Section 168, p. 192. Re Winship, 397 US 358, 25 L Ed 2d 368; State v. Krantz, 498 US 938, 112 L Ed 2d 306.

[9] In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the crime must be the product of a free, intelligent, and intentional act.

[10] U.S. vs. Go Chico, 14 Phil. 134 (1909-1910).

[11] Webster, Third New International Dictionary, Unabridged, 1993, p. 1657.

[12] Harris and Wilshere’s Criminal Law, Seventeenth Division, 1943, pp.513-514.

[13] Burgett v. Texas, 389 US 109, 19 L Ed 2d 319, 88 Ct 258; 29 Am Jur 6.

[14] Records of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1314.

[15] Records of the Senate, Vol. IV, No. 140, p. 1316.

[16] Records of the Senate, June 16, 1989, Vol. IV, No. 141, p. 1403.

[17] See Records Joint Conference Committee Meeting, May 7, 1991, p. 12. Representative Pablo Garcia, Chairman of the House of Representatives Committee on Justice, observed that R.A. No. 7080 was patterned after the RICO law.

[18] Rotella v. Wood, United States Supreme Court, February 23, 2000.

[19] Toussie vs. United States, 397 U.S. 112, 115 (1970).

[20] 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).

[21] 492 U.S. 229, 109 S. Ct. 2893, 106 L Ed. 2d 195 (1989).

[22] The People of the State of New York v. Capaldo et al., 151 Misc. 2d 114 (1991).

[23] 21 Am Jur §349, p.399.

[24] 22 C.J.S. §24 (2) p. 62; Pierce v. United States 314 US 306; 86 L. Ed 226.

"The constitutional vice in a vague or indefinite statute is the injustice to accused in placing him on trial for an offense as to the nature of which he is given no fair notice. (American Communications Associations C.I.O. v. Douds, N.Y. 70 S. Ct. 674, 339 U.S. 382, 94 L. Ed 1391) In determining whether a statute meets the requirement of certainty, the test is whether the language conveys sufficiently definite warning as to the proscribe conduct when measured by a common understanding and practices. Penal statutes affecting public officers and employees and public funds or property will be held invalid where the prohibited conduct is not sufficiently defined. (Jordan v. De George III341 U.S. 223, 95 L. Ed. 886; Winters v. People of State of New York. 333 U.S. 507; 92 L. Ed 840) The requirement of statutory specificity has the dual purpose of giving adequate notice of acts which are forbidden and of informing accused of the nature of offense charged so that he may defend himself. (Amsel v. Brooks, 106 A. 2d 152, 141 Conn. 288; 67 S. Ct. 125, 348 U.S. 880, 91 L. Ed. 693)".

[25] “Winters v. People of State of Newyork 333 US 507; 92 L. Ed. 840 -- "A penal statute must set up ascertainable standards so that men of common intelligence are not required to guess at its meaning, either as to persons within the scope of the act or as to the apllicable test to ascertain guilt."

[26] Sullivan v. United States 332 U.S. 689; 92 L. Ed. 297.

[27] United States v. Dettra Flag co. D.C. Pa., 86 F. Supp. 84.

[28] Winters v. People of State of New York, supra.

[29] State v. Tsutomu Ikeda, 143 P. 2d 880, followed in State v. Waller 143 P. 2d 884.

[30] “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, falsification of public documents, coercion, theft, fraud and illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I think, this provision, by itself, will be vague. I am afraid that it might be faulted for being violative of the due process clause and the right to be informed of the nature and cause of accusation of an accused. Because, what is meant by “series of overt or criminal acts”? I mean, would 2, 3, 4 or 5 constitute a series? During the period of amendments, can we establish a minimum of overt acts like, for example, robbery in band? The law defines what is robbery in band by the number of participants therein. In this particular case, probably, we can statutorily provide for the definition of “series” so that two, for example, would that already be a series? Or, three, what would be the basis for such a determination?” (Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310).

[31] “Senator Paterno. Mr. President, not too clear yet on the reason for trying to define a crime of plunder. Could I get some further clarification?

Senator Tanada. Yes, Mr. President.

Because of our experience in the former regime, we feel that there is a need for Congress to pass the legislation which would cover a crime of this magnitude. While it is true, we already have the Anti-Graft Law. But that does not directly deal with plunder. That covers only the corrupt practices of public officials as well as their spouses and relatives within the civil degree, and the Anti-Graft law as presently worded would not adequately or sufficiently address the problems that we experienced during the past regime.

Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding of the bill?

Senator Tanada. Yes.

Senator Paterno. I envision that this bill or this kind of plunder would cover a discovered interconnection of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act when, after the different acts are looked at, a scheme of conspiracy can be detected, such scheme or conspiracy consummated by the different criminal acts or violations of Anti-Graft and Corrupt Practices Act, such that the scheme or conspiracy becomes a sin, as a large scheme to defraud the public or rob the public treasury. It is parang robo and banda. It is considered as that. And, the bill seeks to define or says that P100 million is that level at which ay talagang sobra na dapat nang parusahan ng husto. Would it be a correct interpretation or assessment of the intent of the bill?

Senator Tanada. Yes, Mr. President. The fact that under existing law, there can be only one offense charged in the information, that makes it very cumbersome and difficult to go after these grafters if we would not come out with this bill. That is what is happening now; because of that rule that there can be only one offense charged per information, then we are having difficulty in charging all the public officials who would seem to have committed these corrupt practices. With this bill, we could come out with just one information, and that would cover all the series of criminal acts that may have been committed by him.

x x x x x x

Senator Romulo. To follow up the interpolations of Senator Paterno and Maceda, this crime of plunder as envisioned here contemplates of a series or a scheme as responded by the distinguished Sponsor.

Senator Tanada. That is correct, Mr. President. (Record of Senate, June 5, 1989, Vol. IV, No. 140, p. 1315)

x x x x x x

Senator Romulo. Mr. President, I was going to suggest prior to Senator Maceda that on line 24: “SHALL THROUGH ONE overt or criminal act OR….” I was just thinking of one which is really not a “series.”,

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. (Record of the Senate, June 6, 1989, Vol. IV, No. 141, p. 1399).

[32] Tarsia v. Nick’s Laundry & Linen Supply Co., 399 P. 2d 28, 29, 239 Or. 562; Words and Phrases, 38A p. 441.

For purposes of Rule permitting government to charge several defendants under one indictment if they have participated in same “series” of acts or transactions, a “series” is something more than mere “similar” acts.

[33] Opposition to the Motion to Quash of Accused Joseph Estrada dated June 21, 2001, p. 9.

[34] Comment to the Amended Petition dated July 16, 2001, p. 14.

[35] United States v. Laub, 385 US 475, 17 L Ed 2d 526, 87 S Ct 574.

[36] State v. Nelson, 95 N.W. 2d 678.

[37] 22 C.J.S. §24 (2); People v. Bevilacqua, 170 N.Y. S. 2d 423; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S Ct 618, 83 L. Ed. 888; United States v. DeCadena, D.C. 105 F. Supp. 202.

[38] 21 Am Jur §17 p. 129.

[39] Tresolini and Shapiro, American Constitutional Law, 3^rd Edition, p. 23.

[40] State v. Evans, 245 P. 2d 788, 73 Idaho 50.

[41] Abraham, Perry, Freedom and the Court, 1998, p. 25.