Is Plunder an Embezzlement Scheme | Crime of Plunder
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Republic Act No. 7080 otherwise known as “The Plunder Law”1is a crime involving the taking and/or embezzlement of public funds through any government projects, by receiving any gifts or commission whether directly or indirectly.

By having such authority and power, public officers use their advantage to unjustly enrich themselves by misappropriating public funds at the expense of the people.

The said law is imposed upon, and, when breached, is also implemented against, all public officers holding an office in the government by virtue of election or appointment.

The Plunder Law is punishable by life imprisonment with perpetual absolute disqualification from holding any public office. It is somehow related to the crime of malversation of public funds. According to Article 2172 of the Revised Penal Code:

Article 217. Malversation of public funds or property; Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property.3

The Plunder Law revolves around the “ill-gotten wealth” acquired through fraudulent and illegal designs and strategies. Thus, the crime of plunder is an embezzlement scheme, albeit on a magnitude scale.

It is not limited to the National Government. Furthermore, it includes its agencies, subdivisions as well as the government-owned or controlled corporations.

Plunder the Crime of our Time

The Philippines is famous for being hospitable people in the world, the country also known for beautiful landscapes and sceneries. Rich in culture, traditions and historical sites.

Notwithstanding the fact that the country ranked 115 out of 180 countries in 2020 Transparency International’s Corruption Perceptions Index.4

Despite amazing things to offer, it is known to have scarcity in many things such as lack of access to general healthcare, high unemployment rate, inequality as regards to educational rights and many more. It is because of widespread corruption that becomes inherently acquired through generations.

Our ancestors fought many foreign invaders to obtain our freedom and restore the sovereignty to be able to become an independent country that has a government on its own.

Thereafter, greed reigns over the leaders. The political system in the Philippines is consistently plagued by corruption issues, and scandals involving politicians at all levels regardless of its position.

It is also one of the reasons why the Philippines has a long history of poverty. In relation to this, countless names have appeared in the media for numerous crimes involving high ranking government officials.

One of the renowned case for plunder is the case of the former President Ejercito “Erap” Estrada. This happened after his close friend Chavit Singson went public and confessed all the details of the alleged unlawful scheme.

An amended information was filed through Sandiganbayan alleging the latter to have obtained an ill-gotten wealth and unjustly enriched himself by receiving large sum of money by operating illegal gambling “jueteng” activities with the aggregated amount of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos (P4,097,804,173.17), more or less.

Several personalities were named alongside Estrada including his son, Jinggoy Estrada. This became a massive news for the Filipinos as the former president’s slogan says “Erap para sa mahirap”, which is in contrast to what he advertised during the campaign.

As a result, it aggravates the people’s emotion knowing the fact that it prejudiced the citizens of the Republic of the Philippines. The people cried for the ousting of Estrada resulting in the People Power II movement.

It gathered the world’s attention because of its bloodless revolution that enlightened the people to open their eyes and broaden their perspective that corruption is attached to the toxicity of politics.

Remarkable efforts have been made to combat the corruption which the country failed to give an emphasis because of the dominated system of political dynasty that has been running in the society for centuries.

The lack of reinforcement of legal requirements for the audit of the finances of the political party expenditures is another cause that provokes the factor of corruption.

In spite of the given clause, the political candidates used the advertising side to endorse themselves and to be popularly known in the public.

Although under the Constitution, any person can run for office as long he/she is qualified for a certain position. This is the kind of strategy that even the unqualified personalities such as actors and celebrities see as an opportunity to run for office because of hidden motives driven by evil thoughts.

They are taking advantage of this kind of propaganda whereas some registered voters do not have enough knowledge and perspective on how politics and its attached history can affect the community as a whole.

What is plunder case?

As stated in the case of Estrada vs. Sandiganbayan5penned by the former Chief Justice of the Supreme Court, Reynato Puno:

“Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states and territorial units.6

The acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation resulting in material damage to the national economy.7

The above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting influence of power.”8

The connotation of “the public office is a public trust5is deemed to be vanished at that time where the people questioned the government as regards the issue of plunder case charged not to any ordinary public official, but to the highest official of the land.

Can a private person be held liable for plunder?

The answer is in the affirmative. A private person may be held liable for the crime of plunder. Provided that the latter willingly participated in the public official or officer contributing to the commission of the offense.

Any person whether it is members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons committed the same shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.9

The framers of the Plunder Law10 define that “any person” includes private individuals.

In the Revilla plunder case, where the accused, who has been acquitted of the charges, is Senator Ramon “Bong” Revilla allegedly received a massive amount of kickbacks to the allocation of the Priority Development Assistance Fund    (PDAF)   otherwise   known   as   “Pork   Barrel”,   funded   the   bogus   projects   of  the Non-Government Organizations (NGOs) controlled by Janet Lim Napoles.

Janet Lim Napoles, being a private individual, was convicted of the crime of plunder.

The same acts as recipient to other government agencies, who are also receiving directly and indirectly commissions and percentage of the cost of the project to be funded by Revilla using the PDAF.

This turns out to be fictitious which results in the proceeds of Napoles’s personal gain. This involved an accumulated amount of two hundred twenty four million five hundred twelve thousand five hundred pesos (P224,512,500.00).

Who is liable for plunder and what are the elements of the offense?

According to the above-mentioned law, the following are the elements of the crime of plunder:

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.

3] That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.11

As mentioned, it penalized the public official who will commit these acts. It is not necessary to establish and prove that these elements are committed.

What is required is the pattern of the overt acts and the proof beyond reasonable doubt of unlawful scheme. It also punishes any person who will perform the same.

Can a construction contract with the government be a basis for plunder?

We believe this is a plausible evidence or proof. The construction of the contract can be agreed by both parties.

If one of the contracting parties drafted and presented it to the other party and had no demands or any changes at all, after affixing the signature in the contract conforming the content and the agreements therein, then it is deemed acknowledged and honored by the parties and its enforceable under the operations of law.

According to Republic Act 3019,12 one of the grounds for the public officer to be held liable for plunder as regards the construction contract as thereof is by means of requesting or receiving shares, percentages or gifts from the contractors in lieu of the government projects or programs where the latter is in need of its services to a private sector/contractor such as in the terms of infrastructure, technological innovations, power energy, water energy and as well as in education.

The Public-Private Partnership would be a great example. It is a contract agreement between the government and private sector.

It has an intention that would benefit the general public designated towards planning, financing, carrying out and operating infrastructure facilities that were customarily given by the public sector.

It incorporates the risk between the parties – minimizing the cost or expense while acknowledging project developmental targets. Accordingly, the project is to be organized so that the private sector gets a reasonable pace of profit from its investments.13

How can you prove that the public official influenced and benefitted from certain contract under the plunder law?

As the Plunder Law is a criminal offense in nature, to establish that the public official really influenced and benefitted from a certain contract, is the proof of guilt beyond reasonable doubt.

As cited in the case of Estrada vs. Sandiganbayan, the Supreme Court held that:

“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. 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. 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.”14

Final thoughts

Being a public official comes with a great responsibility. It also means that the people saw a potential to someone that can lead them towards a better future.

The people have high hopes that the elected official would act with utmost sincerity to the duties and responsibilities vested him upon by law.

Being accused of corruption can be damaging to the image as the public seeks out the incumbent officials to have the power and authority to eliminate the same and establish a corresponding specific action to achieve a better social community.

The building projects of the government can be beneficial for both parties as they have the same objectives. Some may have the heart for public service, others have the intention to insinuate a kind of unlawful action to the extent of suffering of those in the outskirts of the society.

Many of the infrastructure in the country, regardless of its form, are questionable. Instead of improving, they tend to dismantle it to have the allocation of funds to the latter which later turned into personal gain.

Whether it be in local government-unit or at the national level, the massive issue in corruption will never disappear as long as the hunger in power and authority is present, it will continue and be passed on through generations.

  1. Republic Act No. 7080[]
  2. Philippine Penal Code, Revised Penal Code, Art. 217[]
  3. Ibid.[]
  4. Transparency International Corruption Perception Index[]
  5. G.R. No. 148965, February 26, 2002[]
  6. Estrada vs. Sandiganbayan, Ibid.[]
  7. Ibid.[]
  8. Ibid.[]
  9. Section 2, R . A. No. 7080 as amended by Section 12, R. A. No. 7659[]
  10. Ibid.[]
  11. Section 12 of R. A. No. 7659, amending Section 2 of R. A. No. 7080[]
  12. Section 3[b], The Anti-Graft and Corrupt Practices Act[]
  13. Republic of the Philippines Public-Private Partnership Center[]
  14. G.R. No. 148560, November 19, 2001[]

RALB Law | RABR & Associates Law Firm

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