Estrada vs Sandiganbayan : 148560 : November 19, 2001 : J. Ynares-Santiago's Opinion

DISSENTING OPINION

YNARES-SANTIAGO, J.:

It is an ancient maxim in law that in times of frenzy and excitement, when the desire to do justice is tarnished by anger and vengeance, there is always the danger that vital protections accorded an accused may be taken away.

The Plunder Law and its amendment were enacted to meet a national problem demanding especially immediate and effective attention. By its very nature, the law deserved or required legislative drafting of the highest order of clarity and precision.

Substantive due process dictates that there should be no arbitrariness, unreasonableness or ambiguity in any law which deprives a person of his life or liberty. The trial and other procedures leading to conviction may be fair and proper. But if the law itself is not reasonable legislation, due process is violated. Thus, an accused may not be sentenced to suffer the lethal injection or life imprisonment for an offense understood only after judicial construction takes over where Congress left off, and interpretation supplies its meaning.

The Constitution guarantees both substantive and procedural due process[1] as well as the right of the accused to be informed of the nature and cause of the accusation against him.[2] Substantive due process requires that a criminal statute should not be vague and uncertain.[3] More explicitly –

That the terms of a penal statute. . . must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to penalties, is a well–recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process.[4]

The doctrine of constitutional uncertainty is also based on the right of the accused to be informed of the nature and cause of the accusation.[5] Fundamental fairness dictates that a person cannot be sent to jail for a crime that he cannot with reasonable certainty know he was committing.[6] Statutes defining crimes run afoul of the due process clause if they fail to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged or to guide courts trying those who are accused.[7] In short, laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid.[8]

A reading of the Plunder Law immediately shows that it is phrased in a manner not susceptible to ready or clear understanding. In the desire to cover under one single offense of plunder every conceivable criminal activity committed by a high government official in the course of his duties, Congress has come out with a law unduly vague, uncertain and broad.

The doctrines of overbreadth and void-for-vagueness in Constitutional Law were developed in the context of freedom of speech and of the press. However, they apply equally, if not more so, to capital offenses. In the present case, what the law seeks to protect or regulate involves the deprivation of life itself and not merely the regulation of expression.

In its early formulation, the overbreadth doctrine states that a governmental purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.[9]

A statute, especially one involving criminal prosecution, must be definite to be valid. A statute is vague or overbroad, in violation of the due process clause, where its language does not convey sufficiently definite warning to the average person as to the prohibited conduct. A statute is unconstitutionally vague if people of common intelligence must necessarily guess at its meaning.[10]

It is not only prosecutors and judges who are concerned. The need for definiteness applies with greater force to the accused and those in positions where opportunities for them to commit the proscribed offense are present. They must understand exactly what prohibited activity will be punished by capital punishment. Sadly, even the record of deliberations in Congress cited in the motion to quash shows that even the members of the Senate who are illustrious lawyers found the Plunder Law vague.

Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the acquisition of at least P50,000,000.00 of ill-gotten wealth is punished by reclusion perpetua to death, if committed as follows:

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

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

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

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

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

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.[11]

The crimes of malversation of public funds and bribery, which appear to be included among the modes of committing plunder, have acquired well-defined meanings under our present penal statutes. The accused immediately knows how to defend and justify his actions. The prosecution understands the quantum and nature of the evidence he has to produce in court. The Judge can apply the law with straight and positive judgment because there is no vagueness about it.

The Sandiganbayan, however, has ruled that the Plunder Law does not make any reference to any specific provision of laws other than R.A. 7080, as amended. It is an entirely new offense where malversation or bribery become “generic terms” according to the court. And since “generic” refers to an entire group or class of related matters, the discretion given to the prosecutor and the judge figuratively runs riot.

Under the same paragraph of the Plunder Law, malversation is lumped with “misuse of public funds.” Misuse can be as innocuous as error or it can be as severe as corruption or embezzlement. The terms “abuse,” “distortion,” “misapplication,” “mismanagement,” “poor stewardship,” “malpractice,” “debasement,” or “breach of trust,” all conceivably fall under the generic term “misuse.” Exactly when does an administrative offense of misuse become the capital crime of plunder? What degree of misuse is contemplated under the law?

A penal law violates due process where inherently vague statutory language permits selective law enforcement.[12] Under the Plunder Law, a crusading public officer who steps on too many important toes in the course of his campaign could be prosecuted for a capital offense, while for exactly the same acts, an official who tries to please everybody can be charged whether administratively or for a much lighter offense.

For instance, direct bribery under Article 210 of the Revised Penal Code is punished with prision mayor in its medium or minimum periods, prision correccional in its medium period, or prision mayor in its minimum period, depending on the manner of commission.[13] Indirect bribery under Article 211 is punished with prision correccional in its medium and maximum periods.[14] Under the Plunder Law, the penalty is reclusion perpetua to death. The void-for-vagueness infirmity becomes all the more apparent if the proscribed activity is “misuse of public funds.” The prosecutor is given broad powers of selective law enforcement. For “misuse,” exactly the same acts could be punished with death under the Plunder Law, or mere dismissal with prejudice to future government employment under the Civil Service Law.

The provision in the Plunder Law on “implementation of decrees and orders intended to benefit particular persons or special interests” also calls for more specific elucidation. If the only person benefited is himself, does that fall under “particular person?” Decrees and orders issued by a top government official may be intended to benefit certain segments of society such as farmers, manufacturers, residents of a geographical area and the like. If in the process a close relative acquires P50,000,000.00 because of development in that sector solely because of the decree and without lifting a finger, is that plunder? The vagueness can be better appreciated by referring to petitioner’s arguments that the element of mens rea in mala in se crimes has been abolished and the offenses have been converted to mala prohibita. If the guilty intent is eliminated, even innocent acts can be plunder. The law was not drafted for petitioner alone. It applies to all public officers.

As petitioner has stated, what Congress did in enacting the Plunder Law was to take out the provisions of the Revised Penal Code on malversation, estafa, bribery, and other crimes committed by public officers, mix these with special laws on graft and corruption and together with a couple of non-criminal acts, combine them into a special law and call it “plunder.”

Early in the history of this Court, it ruled that in acts mala in se, the criminal intent governs. But in those acts mala prohibita, the only inquiry is: has the law been violated?[15] Acts constituting malversation, estafa, and bribery are mala in se. The courts must inquire into the criminal intent, the evil nature or wrongful disposition behind the criminal acts. In mala prohibita crimes, there is a violation of a prohibitory law and the inquiry is, therefore, has the law been violated?

In the crime of plunder, it is enough that the acts defining malversation or bribery are described. The court then proceeds to determine whether the acts fall under the prohibitory terms of the law. Criminal intent no longer has to be proved. The criminal intent to commit the crime is not required to be proved. The desire to benefit particular persons does not have to spring from criminal intent under the special law creating the crime of plunder. In malversation or bribery under the Revised Penal Code, the criminal intent is an important element of the criminal acts. Under the Plunder Law, it is enough that the acts are committed.

Thus, even if the accused can prove lack of criminal intent with respect to crimes mala in se, this will not exonerate him under the crime mala prohibita. This violates substantive due process and the standards of fair play because mens rea is a constitutional guarantee under the due process clause. Indeed, as stated by the U.S. Supreme Court in Morisette v. U.S.:[16]

The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s party to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common law crimes on judicial initiative. (Emphasis ours)

By grafting several felonies, some mala in se and some mala prohibita, to constitute the crime of plunder and by doing away with the standard of proof beyond reasonable doubt for the component elements, the State would practically be given the judicial imprimatur to impose the extreme penalty of death on the basis of proof only of the overall pattern of overt or criminal acts showing unlawful scheme or conspiracy. This attempt of Congress to tip the scales of criminal justice in favor of the state by doing away with the element of mens rea and to pave the way for the accused to be convicted by depriving him of the defense of criminal intent as to mala in se components of plunder will be anathema to substantive due process which insures “respect for those personal immunities which are so rooted in the traditions and conscience of our people as to be ranked as fundamental.”[17]

Equally disagreeable is the provision of the Plunder Law which does away with the requirement that each and every component of the criminal act of plunder be proved and instead limits itself to proving only a pattern of overt acts indicative of the unlawful scheme or conspiracy.[18] In effect, the law seeks to penalize the accused only on the basis of a proven scheme or conspiracy, and does away with the rights of the accused insofar as the component crimes are concerned. In other words, R.A. No. 7080 circumvents the obligation of the prosecution to prove beyond reasonable doubt every fact necessary to constitute the crime of plunder, because the law requires merely proof of a pattern of overt acts showing an unlawful scheme or conspiracy. What aggravates matters on this point is that under controlling case law, conspiracy to defraud is not punishable under the Revised Penal Code.[19] Cutting corners on the burden of proof is unconstitutional because the standard of reasonable doubt is part of the due process safeguard accorded an accused. The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.[20]

Under R.A. 7659, plunder is a heinous crime punishable by death. It is described as grievous, odious and hateful because of its inherent or magnified wickedness, viciousness, atrocity, and perversity. There can be no quarrel with the legislative objective of reducing the upsurge of such crimes which affect sustainable economic development and undermine the people’s faith in Government and the latter’s ability to maintain peace and order. Nevertheless, due process commands that even though the governmental purpose is legitimate and substantial, that purpose cannot be pursued by means so vague and broad that they infringe on life or stifle liberty when the end can be more narrowly achieved through existing penal statutes.

Where the statute has an overbroad sweep just as when it is vague, the hazard of loss or impairment of life or liberty is critical.[21]

The problem of vagueness is reduced or eliminated if the different schemes mentioned in the law as used in the acquisition of ill-gotten wealth are prosecuted under existing penal law. The offenses are by their nature distinct and separate from each other and have acquired established meanings.

Thus, the acts of misappropriation or malversation may be prosecuted as separate offenses. So may the receipt of commissions, gifts, or kickbacks by higher officials in connection with government contracts. The four other methods or schemes mentioned in the law may be the objects of separate penal statutes.

When the law creates a new crime of plunder through a combination or series of overt or criminal acts, the courts have to supply missing elements if conviction is to be achieved.

Bribery is punished as plunder under the law only when there is a combination or series of criminal acts. But when do certain acts constitute a combination or series? Does the Plunder law provide that two or three acts of one crime of bribery constitute a combination or series which qualify bribery into plunder? Or does bribery have to be conjoined with the separate offense of malversation to become a combination? Or with malversation and fraudulent conveyance or disposition of public assets or one of the other means or schemes before it becomes a series?

I find it difficult to accept the wide discretion given to the prosecution by the Plunder Law. An elective official who is a political threat may be charged for plunder as one single offense punishable by death while one in the good graces of the powers-that-be is charged only under the Revised Penal Code.

The confusion generated by a vague law is exemplified in the informations filed against petitioner in this case. Petitioner was charged with eight crimes, namely: [1] plunder; [2] violation of Section 3 (e) of R.A. 3019; [3] violation of Section 3 (a) of R.A. 3019; [4] another violation of Section 3 (e) of R.A. 3019; [5] violation of Section 3 (c) of R.A. 3019; [6] violation of Section 7 (d) of R.A. 6713; [7] perjury; [8] illegal use of alias.

Only twelve days later, the prosecution withdrew five (5) of the informations which it consolidated into only one offense of plunder. The prosecution was not clear about the steps to take in instances where the words “combination” or “series” may or may not apply. It could not understand the coverage of the law as acts repetitive of the same offense or acts constituting one crime lumped up with other crimes or both criminal and non-criminal acts punished as one new offense of plunder.

In the following exchange during the deliberations on Senate Bill No. 733, Senators Neptali Gonzales and Wigberto Tanada voiced serious doubts on the constitutionality of the definition of plunder, thus:

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 and like offenses. Now, Mr. President, I think this provision, by itself will be vague. I am afraid that it may 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, 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 determination?

Senator Tanada:

I think, Mr. President, that would be called for, this being a penal legislation, we should be very clear as to what it encompasses; otherwise, we may contravene the constitutional provision on the right of accused to due process. (Emphasis ours)[22]

The foregoing concerns to statutorily provide for the definition of “series” or “combination” have, however, not been addressed and the terms were left undefined. The law, as presently crafted, does not specify whether a “series” means two, three, four or even more of the overt or criminal acts listed in Section 1 (d) of R.A. 7080.

Even more difficult to accept is when the trial court has to supply the missing elements, in effect taking over corrective or punitive legislation from Congress. The attempts of the Sandiganbayan in the questioned Resolution do not clarify. They instead serve to confuse and increase the ambiguity even more.

The Sandiganbayan interprets the words “combination” and “series” of overt or criminal acts through terms found in American decisions like “pattern,” “conspiracy,” “over-all unlawful scheme,” or “general plan of action or method.”

The above definitions are not found in the Plunder Law. The use of such phrases as “over-all scheme” or “general plan” indicates that the Sandiganbayan is expanding the coverage of the law through the use of ambiguous phrases capable of dual or multiple applications. When do two or three acts of the same offense of malversation constitute a “pattern,” “a general plan of action,” or an “over-all scheme?” Would one malversation in the first week of a public officer’s tenure and another similar act six (6) years later become a “combination,” a “pattern,” or a “general plan of action?”

I agree with petitioner’s concern over the danger that the trial court may allow the specifications of details in an information to validate a statute inherently void for vagueness. An information cannot rise higher than the statute upon which it is based. Not even the construction by the Sandiganbayan of a vague or ambiguous provision can supply the missing ingredients of the Plunder Law.

The right of an accused to be informed of the nature and cause of the accusation against him is most often exemplified in the care with which a complaint or information should be drafted. However, the clarity and particularity required of an information should also be present in the law upon which the charges are based. If the penal law is vague, any particularity in the information will come from the prosecutor. The prosecution takes over the role of Congress.

The fact that the details of the charges are specified in the Information will not cure the statute of its constitutional infirmity. If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it.[23] In other words, it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.[24]

Definiteness is a due process requirement. It is especially important in its application to penal statutes. Vagueness and unintelligibility will invariably lead to arbitrary government action. The purpose of the due process clause is to exclude everything that is arbitrary and capricious affecting the rights of the citizen.[25] Congress, in exercising its power to declare what acts constitute a crime, must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid.[26]

The questioned statutes were enacted purportedly in the interest of justice, public peace and order, and the rule of law. These purposes are not served by R.A. Nos. 7080 and 7659. These statutes allow the prosecutors and the courts arbitrary and too broad discretionary powers in their enforcement. Fair, equal and impartial justice would be denied.

For all the foregoing reasons, I vote to grant the petition and nullify the Plunder Law for being unconstitutional.