Plunder seems to be a favorite byword and is, in fact, one of the most searched items on the internet lately.
For many people, the word simply means that a public official amassed public money to enrich himself.
This is partly true, but plunder encompasses much more than that.
So, how does the law, in particular Republic Act 7080, define the crime of plunder?
According to Sec. 2 of the law defining and penalizing the crime of plunder, it is committed when any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associate, subordinates or other persons, amasses, accumulates, or acquires ill-gotten wealth through a combination or series of overt or criminal acts in the total value of at least P50 million.
It also provides that any person who participated with the said public officer in the commission of an offense shall likewise be punished for such offense.
The term “ill-gotten wealth,” meanwhile, refers to any asset, property, business enterprise, or material possession acquired by a public officer directly or indirectly, through a combination or series of the following means or similar schemes:
First, through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
Second, by receiving directly or indirectly, any commission, gift, share, kickbacks, or any pecuniary benefit from any person in connection with a government contract or project by reason of his office or position;
Third, by illegally or fraudulently conveying or disposing of assets belonging to the government;
Fourth, by receiving directly or indirectly shares of stock, equity, or any form of interest or participation, including the promise of future employment in any business enterprise or undertaking;
Fifth, by establishing monopolies or other combinations and or implementation of decrees or orders intended to benefit particular persons or special interests; and
Sixth, by taking undue advantage of his official position, authority, relationship, connection, or influence to unjustly enrich himself at the expense and to the damage and prejudice of the Filipino people and the Republic.
Three cases involving the alleged commission of plunder have caught the attention of Filipinos, temporarily serving as a distraction from the sweltering heat.
Plunder, a non-bailable offense with a penalty of life imprisonment and perpetual absolute disqualification from holding public office, requires a pattern, combination, or series of criminal acts. It is distinct from graft, which is punishable under Republic Act 3019 or the Anti-Graft and Corrupt Practices Act. Graft is bailable, does not require a minimum monetary threshold and punishes specific prohibited acts such as causing undue injury to the government or giving any private party unwarranted benefits or advantage or preference in the discharge of a public officer’s official functions, requesting or receiving benefits in connection with a contract or transaction between government and any other party wherein such public officer in his official capacity has to intervene under the law, among others.
In one case, the Supreme Court explained that, in plunder, the acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft, or graft, but constitute plunder of an entire nation resulting in material damage to the national economy. Plunder is of a much higher order, a capital offense that targets a pattern or series of criminal acts that result in the amassing of ill-gotten wealth, instead of looking at a single isolated act.
Therefore, unlike in a graft case where the prosecution needs only to prove one instance of a contract disadvantageous to the government, for instance, in plunder, the Office of the Ombudsman must weave these individual acts together to show a singular intent to amass P50 million or more.
Plunder is a crime separate and distinct from its predicate or underlying crimes, which are often violations of RA 3019 or the Revised Penal Code, such as malversation, which also does not have a minimum threshold amount that specifically targets public officials who are bonded or legally entrusted with the custody or control of public funds or property.
The Plunder Law provides that for purposes of establishing the crime of plunder, it is not 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. What is required, however, is to establish beyond a reasonable doubt a pattern of overt or criminal acts as indicative of the overall unlawful scheme or conspiracy.
Plunder can therefore be prosecuted independently of the underlying crime.
Thus, in high-profile corruption cases, prosecutors will file separate malversation, graft, or other charges as a fallback, given the difficulty of proving plunder, a crime of the highest order.
The past few weeks have seen the filing of plunder and its predicate charges against a number of public officials.
Just last Thursday, the Office of the Ombudsman filed plunder and graft charges against Sen. Jinggoy Estrada in connection with the flood control controversy, saying that substantial public funds were deliberately funneled through an intricate mechanism involving illegal budgetary insertions and project allocations in exchange for commission fees or kickbacks.
Meanwhile, investigators from the same office recommended the filing of plunder and indirect bribery complaints against Senator Rodante Marcoleta, former lawmaker Mike Defensor, and two other private individuals in connection with campaign donations he received for his senatorial bid, amounting to P75 million.
Important questions are now on the minds of many legal observers. Can the allegation of a huge campaign donation, and only that, legally sustain a plunder charge? Where these alleged donations part of a grand scheme to amass ill-gotten wealth through misuse of public office or to influence a government action? Can private individuals who donated to a campaign be plunder conspirators when it would be next to impossible to prove that they knowingly participated in the unlawful scheme for the public official, in this case, Marcoleta, to amass ill-gotten wealth? And how can such a huge campaign donation cause damage and prejudice to the Filipino people and the Republic?
Even the Bureau of Internal Revenue treats campaign donations as not taxable, as they are not part of the candidates’ gross income. So how can campaign donations, so long as they are used in the election campaign, be part of the wealth of the candidate?
Establishing these may be extremely difficult, especially now that the quantum of evidence required for preliminary investigations and inquest proceedings has been raised to prima facie evidence with reasonable certainty of conviction or evidence that, on its own and if left uncontroverted, shall be sufficient to establish all the elements of the crime or offense charged.
There are claims from some quarters that the filing of plunder charges is being weaponized, especially against the administration’s enemies. Let’s hope there’s no truth to these claims because the Office of the Ombudsman is part of the whole justice system, which the Filipino people trust would preserve their life, liberty, and property against unwarranted deprivation without due process. The people’s trust in the system and in the rule of law is of utmost importance. Otherwise, chaos takes over.
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