POSTSCRIPT / September 18, 2007 / Tuesday


Philippine STAR Columnist

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Plunder score is 2-2, but isn't a tie for Erap

QUESTIONS: Before the subject grows cold, I want to gather various questions often asked me about the plunder trial and conviction of former President Joseph “Erap” Estrada and offer simple answers.

As some lawyers are likely to notice, I am a layman trying in this limited space to explain the law to non-lawyers.

A common question being asked is why only Erap among other officials was taken to court and convicted for plunder. Is this not selective prosecution, and therefore unjust?

It is impossible to hear and decide all criminal cases at the same time. But we have to assume that our courts are working on the other cases and that in due time they will rule, separately, on the guilt or innocence of the accused in each case.

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NEW LAW: Some people also ask how come the Marcoses and incumbent officials with sticky fingers are still running around free and not being charged with plunder despite their allegedly having stolen much bigger amounts.

The Anti-Plunder Law (RA 7080), as amended, was approved only on July 12, 1991, long after the martial law kleptocracy. In the heyday of the Marcoses, there was no such crime as plunder.

We cannot apply this new law on acts consummated before the law came to be. Note that if there is no law decreeing that an act is a crime, committing that act is not a crime.

As for the crooks still in office, the law will soon catch up on them.

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PLUNDER: Sandiganbayan Case No. 26558 against Erap for plunder was the first such case filed against a top official, a former president no less.

In summary, Erap was accused, with several others, of plunder committed from June 1998 to January 2001, by taking advantage of his position and amassing ill-gotten wealth amounting to P4,097,804,173.17, more or less, thereby enriching himself at the expense of the people and the government.

He was found guilty beyond reasonable doubt, the Sandiganbayan said. Its decision is sure to be challenged, but as of this writing it has not been overturned.

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FOUR COUNTS: The amended complaint accused Erap (and some associates) of committing four violations that, taken together, constituted plunder:

1. Receiving or collecting, on several occasions, jueteng protection money that totaled P545,000,000, more or less.

2. Diverting and pocketing P130,000,000 from the P200,000,000 share of Ilocos Sur in the tobacco excise tax.

3. Pressuring the Government Service Insurance System and the Social Security System to buy shares in the Belle Corp. at a total price of P1,847,578,057.50, for which he received a P189,700,000 commission that was deposited in his “Jose Velarde” account with the Equitable-PCI Bank.

4. Unjustly enriching himself from commissions, gifts, shares, percentages, kickbacks, etc., in connivance with others, in the amount of P3,233,104,173.17 deposited in his “Jose Velarde” account.

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2-2 SCORE: These four items in the complaint filed by the Office of the Ombudsman defined the Olympic battleground where the prosecution and the defense clashed.

When the dust settled, so to speak, the Sandiganbayan card showed a 2-2 score:

* The prosecution failed to prove beyond reasonable doubt Item-2 (the P130-million diverted tobacco tax) and Item-4 (illegal sourcing of the “Jose Velarde” deposits) – except for the Belle shares commission and part of the jueteng tong collection.

* But the prosecution proved to the satisfaction of the three-member special division of the Sandiganbayan Item-1 (collection of P545 million in jueteng tong) and Item-3 (the forced purchase of Belle shares that netted a P189,700,000 commission).

The 2-2 score, however, was not a tie. The Sandiganbayan said proving two of the four items was enough to convict the 70-year-old Erap.

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ELEMENTS: To understand what the court was looking for, check the facts against the elements of plunder as defined in RA 7080:

1. The offender must be a public officer acting by himself or in connivance with other persons.

2. The offender must have amassed or acquired ill-gotten wealth — totaling at least P50 million — through a combination of these acts:

(a) Misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury.

(b) Receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any pecuniary benefits from any person and/or entity in connection with a government contract or project or by reason of the office or position of the public officer.

(c) 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) Obtaining, receiving or accepting directly or indirectly 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) Establishing agricultural, industrial or commercial monopolies or other combinations and/or implementing decrees and orders intended to benefit particular persons or special interests.

(f) 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.

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(First published in the Philippine STAR of September 18, 2007)

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