Watered down plunder law

Early this week, Ombudsman Jesus Crispin Remulla reported that his office had filed 39 cases in connection with the flood control scandal, 35 of which were filed in the Sandiganbayan and four in regional trial courts.

In a slight, but sharp dig, at the courts, he said he expects them to be “impartial, independent and attuned to the times.” (Oops, that hurts.)

He also called on the Supreme Court to revisit its ruling in the case of “Macapagal-Arroyo vs. People.” which is the existing benchmark in the resolution of plunder cases, because its underlying doctrine “stands in the way” of the prosecution of plunder cases.

He took issue with the high court’s ruling that proof of the identity of the main plunderer and personal receipt by or benefit of the accused from the stolen money are required in the crime of plunder.

Remulla said those requirements are not in the law. And he is right!

The plunder law (or Republic Act No. 7080) lays down the three elements that must concur for a person to be held liable for that crime, namely:

(a) the accused is a public officer who acts in connivance with family members or other people; (b) he or she committed a combination or series of criminal acts, e.g., kickbacks or misappropriation of public funds; and (c) the total value of the money that he or she amassed from those acts is at least P50 million.

Note that in 1991, or 35 years ago, when that law took effect, that threshold was considered abominable as to justify that the person accused of that crime is not allowed to post bail and, if found guilty, he or she may be sentenced to life imprisonment.

At that time, the national budget was in billions of pesos, now it’s in trillions of pesos.

The two-page plunder law does not mention, directly or indirectly, and even by inference, that a main plunderer has to be named or identified before that crime may be considered to have been committed.

Despite the absence of any reference to a main plunderer, however, the court nonetheless said: “Surely, the law requires in the criminal charge for plunder against several individuals that there must be a main plunderer and her co-conspirators, who may be members of her family, relatives by affinity or consanguinity … or other persons.”

That “sure” assumption is barefaced. It is not supported by any transcript of the discussions in Congress to that effect that would justify reading into the law that requirement.

The same observation applies to the court’s requirement that the accused should be shown to have personally received or benefited from the ill-gotten wealth.

The law defines ill-gotten wealth as “any asset, property, business enterprise or material possession of any person … 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.”

The reference to “dummies, nominees, or agents” negates the merit or credibility of the requirement on personal receipt or benefit from ill-gotten wealth.

That requirement ignores the reality in financial crimes that the ingenious mastermind makes sure that his or her name or footprint will not be in any transaction documents.

Through the process of corporate layering and creation of bank accounts in tax havens in different parts of the world that have strict confidentiality rules, proving personal receipt or benefit would require the expertise of Sherlock Holmes.

The manner by which the high court imposed unwritten conditions on the plunder law smacks of “judicial legislation,” which is clearly in derogation of the well-defined allocation of powers by the Constitution among the three branches of government.

The Ombudsman’s appeal to revisit the doctrine on plunder cases would have to wait until a case of a similar nature wends its way from the Sandiganbayan or trial court to the high court, so it will give it the opportunity (knock on wood) to assess the implications of that doctrine to the resolution of plunder cases.

Until that happens, which may take decades, considering the slow pace of justice in our country, the accused in the plunder cases filed by the Office of the Ombudsman have in their favor a ruling that makes their prosecution a herculean task.

Incidentally, during this week’s interview of Sandiganbayan Presiding Justice Geraldine Faith Econg, who is one of the aspirants for a soon-to-be vacated seat in the high court, she echoed Remulla’s appeal to revisit that doctrine because it has made it difficult for the antigraft court to pass a conviction.

When the two government offices tasked with going after high-flying crooks in government are unanimous in questioning the merit of that doctrine, it behooves the high court to seriously consider their plea.

There is no shame in admitting a mistake when it involves the higher interests of the country.

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