In the beginning, there was this thing called a Hold Departure Order (HDO). It was issued to prevent individuals subject to court proceedings from leaving the country. That was understandable.
In other jurisdictions, the solution to flight risk was more straightforward. The accused person’s passport was simply confiscated. No more haggling with immigrations officers. No escaping through some southern backdoor.
Over a time, a new variant evolved. It was called an Immigrations Lookout Bulletin Order (ILBO). I never understood how this works. It looks like some hybrid HDO except that departure cannot really be prevented. But being included in some ILBO certainly ensures some form of inconvenience – the severity of which depends on the whim of a minor bureaucrat at the Department of Justice.
This week, this matter evolved further. The ombudsman asked for something called a Precautionary Hold Departure Order (PHDO) from the Sandiganbayan issued against Sen. Rodante Marcoleta and three campaign donors named in that strange plunder case. The request was granted.
In terms of practical effect, the PHDO is the same as an HDO. The subjects are deprived their right to travel even as the information against them has yet to be formally appreciated by a properly constituted court. It is a penalty imposed without judicial proceeding. The stigma of guilt is casually attached.
One wonders what the next iteration of this arbitrary and oppressive bureaucratic instrument might be. At first glance, this seems to indicate bureaucratic creep that gradually cancels rights without the benefit of a proper court proceeding.
A mystery wrapped in an enigma. The PHDO, at first glance, appears a malignant outgrowth from a malignant plunder case. The basis for this PHDO is a wonder on its own.
Just days before the ombudsman sought and won a PHDO against Senator Marcoleta, something called the Field Investigation Bureau of the Office of the Ombudsman recommended the filing of plunder and indirect bribery charges against Marcoleta and three campaign donors. Never before has the Office of the Ombudsman demonstrated such lightning speed.
“Plunder,” a heinous crime existing only in our statute books, is subject to severe penalties. To begin with, a person accused of “plunder” is not allowed to post bail and continue to enjoy liberty while the case undergoes trial. If found guilty, the most serious penalties could be imposed. Since we no longer execute people even for the most outrageous crimes, they stand to suffer life imprisonment.
Because “plunder” is considered such a serious offense, the crime was carefully delineated in our laws. Section 2 of Republic Act 7080 defines plunder as a criminal act committed by “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 described in Section 1(d) thereof in the aggregate amount or total value of at least P50 million.”
The law provides that “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.”
“Ill-gotten wealth” is itself carefully defined in the law. It involves misappropriation, conversion, misuse or malversation of public funds. It includes receiving commissions, gifts, shares, percentages, kickbacks or pecuniary benefits in connection with a government contract or project, or by reason of public office. It covers fraudulent conveyance or disposition of government assets or the receipt of shares, equity, interests or participation in an business enterprise as well as the establishment of monopolies or combinations intended to benefit particular persons or special interests. Finally, this crime is qualified by taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich oneself at the expense and prejudice of the Filipino people and the Republic.
Because of all the delineations included in the law, “plunder” has been very difficult to establish in a decent court of law. Some legal experts even opine the law is self-defeating. It imposes a threshold that challenges prosecution. So much public resources were wasted attempting to prosecute what defies prosecution.
Yet the threat of prosecuting someone for “plunder” is always wielded lightly. Never so lightly as it is now wielded against Marcoleta.
Granted, the sitting senator fumbled his reporting of campaign donations. The donations were duly reported but the donors were not formally identified. The matter was looked into by the Comelec. The poll body concluded no clear law was violated.
Now the ombudsman comes up with a different finding. “Plunder,” the ombudsman says, was committed. It was committed because three individuals contributed to the senatorial campaign fund of someone who was a sitting congressman at the time.
Eyebrows were raised in the legal community. The offense, if there was one, does not rise to the clearly specified bounds of “plunder.” This could be an unwise expedition that will result only in massive waste of government resources.
But the ombudsman seems adamant about pursuing this case. So adamant, it even succeeded in unduly expanding the scope of the HDO.
The calculus changes dramatically, of course, if this expedition is actually intended to make life uncomfortable for those who inconvenience the faction in power. In which case, the wasteful expenditure of government’s scarce prosecutorial resources is justified by unstated political goals.