The Law on Plunder

We all know that the case of plunder against former President Joseph Estrada was already submitted for decision. We obviously can’t discuss the merits of the case, as this is sub judice. We don’t want to add to the controversy brought about by the “Erap: Guilty or not Guilty” ads realeased days ago. For everyone’s easy reference, however, let’s discuss plunder.

What is the applicable law on plunder? Plunder is covered by Republic Act No. 7080 (“An Act Defining and Penalizing the Crime of Plunder”), as amended.

Is the law unconstitutional? No. The Supreme Court already ruled in Estrada vs. Sandiganbayan (2001) that RA 7080 is not contrary to the Constitution.

What’s the definition of a “public officer”? A “public officer” means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract.

What is included in the term “government” in the definition above? “Government” includes the National Government, and any of its subdivisions, agencies or instrumentalities, including government-owned or -controlled corporations and their subsidiaries.

What is “ill-gotten wealth”? Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section 2 (defining the crime of plunder) of the law, 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 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.

What are the elements of the crime of plunder? As discussed in Estrada vs. Sandiganbayan (2001), the elements of the crime of plunder are:

1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits 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; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) 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; (e) 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 (f) by taking 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,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.

[Note: The threshhold amount is originally P75 Million under RA 7080. This was amended by RA 7659 (1993), which is an act imposing the death penalty on certain heinous crimes including plunder, decreasing the threshhold amount to P50 Million. We all know, however, that the death penalty law (RA 7659) was “repealed or amended accordingly” by RA 9346 (2006), which prohibits the imposition of the death penalty. The interesting point is this – does the repeal (or “amendment”) of RA 7659 mean that the threshhold amount is now back to P75 Million? Let’s discuss.]

What is the court that has jurisdiction over the crime of plunder? Until otherwise provided by law, all prosecutions under the law is at the Sandiganbayan. The Supreme Court clarified that the Sandiganbayan has no jurisdiction over the crime of plunder unless committed by public officials and employees occupying the positions with Salary Grade “27” or higher, under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758) in relation to their office. This is pursuant to Republic Act No. 8429 (1997), which is the special law that provided for the jurisdiction of the Sandiganbayan “otherwise” than that prescribed in Republic Act No. 7080.

What is the specific rule of evidence provided under this law? 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.

What is the effect of a charge of plunder on a public officer still in office? Any public officer against whom any criminal prosecution under a valid information under this law in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.

What is the applicable penalty upon conviction? The applicable penalty for the crime of Plunder, under R.A. 7080 (as amended by R.A. 7659), is reclusion perpetua to death. The death penalty, however, was already abolished, which means that the applicable penalty is reclusion perpetua, without prejudice to other accessory penalties that may be imposed by the court.

Upon conviction, what is the other penalty in addition to imprisonment? In case of conviction by final judgment, the accused shall lose all retirement or gratuity benefits under any law. However, if the accused is acquitted, he shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him.

Is there a prescriptive period in prosecuting someone with plunder? Yes. The crime punishable under R.A. 7080 prescribes in twenty (20) years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.

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