EN BANC
[G.R. No. 148965.
JOSE “JINGGOY” E. ESTRADA, petitioner, vs. SANDIGANBAYAN
(THIRD DIVISION), PEOPLE OF THE
D E C I S I O N
PUNO, J.:
A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from the charge of plunder filed against him by the respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the respondent Office of the Ombudsman.
On
The Information was amended and filed on
On
On
On April 30, 2001, petitioner filed a “Very Urgent Omnibus
Motion”[2]
alleging that: (1) no probable cause exists to put him on trial and hold him
liable for plunder, it appearing that he was only allegedly involved in illegal
gambling and not in a “series or combination of overt or criminal acts” as
required in R.A. No. 7080; and (2) he is entitled to bail as a matter of
right. Petitioner prayed that he be
excluded from the Amended Information and be discharged from custody. In the alternative, petitioner also prayed
that he be allowed to post bail in an amount to be fixed by respondent court.[3]
On June 28, 2001, petitioner filed a “Motion to Resolve Mayor
Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds That An Outgoing Mayor Loses
Clout An Incumbent Has And That On Its Face, the Facts Charged In The
Information Do Not Make Out A Non-Bailable Offense As To Him.”[4]
On
On
“WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose ‘Jinggoy’ Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated 18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND of
accused Jose ‘Jinggoy’ Estrada, his VERY URGENT OMNIBUS MOTION, praying that he
be: (1) dropped from the information for plunder for want of probable cause and
(2) discharged from custody immediately which is based on the same grounds
mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS
MOTION that he be allowed to post bail be SET for hearing together with the
petition for bail of accused Edward S. Serapio scheduled for July 10, 2001, at
2:00 o’clock in the afternoon after the arraignment of all the accused.”[7]
The following day,
Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in:
“1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying him the equal protection of the laws;
2) not holding that the Plunder Law does not provide complete and sufficient standards;
3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of substantive due process;
4) not fixing bail for petitioner for alleged involvement in
jueteng in one count of the information which amounts to cruel and unusual
punishment totally in defiance of the principle of proportionality.”[9]
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its
face and as applied to him and denies him the equal protection of the laws.[10]
The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has been settled in the case of Estrada v. Sandiganbayan.[11] We take off from the Amended Information which charged petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio, Charlie “Atong” Ang, Yolanda T. Ricaforte and others, with the crime of plunder as follows:
“AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB
Office of the Ombudsman, hereby accuses former PRESIDENT OF THE PHILIPPINES,
Joseph Ejercito Estrada a.k.a. “ASIONG SALONGA” AND a.k.a “JOSE VELARDE”,
together with Jose ‘Jinggoy’ Estrada, Charlie ‘Atong’ Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES
& Jane Does, of the crime of Plunder, defined and penalized under R.A. No.
7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY
with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there wilfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY,
ill-gotten wealth in the aggregate amount OR TOTAL VALUE 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, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF
THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR A series of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:
(a) by
receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION
PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connivance with co-accused CHARLIE ‘ATONG’ ANG, Jose
‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN
DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
(b) by DIVERTING,
RECEIVING, misappropriating, converting OR misusing DIRECTLY
OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public
funds in the amount of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more
or less, representing a portion of the TWO HUNDRED MILLION PESOS
[P200,000,000] tobacco excise tax share allocated for the Province of
Ilocor Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE
with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, JOHN DOE a.k.a.
Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by
directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT,
the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000
SHARES OF STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000
SHARES OF STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX
HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY
PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION
EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR
RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION
WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME “JOSE VELARDE”;
(d) by unjustly
enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS,
OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES,
in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME
“JOSE VELARDE” AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Petitioner’s contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise that the Amended Information charged him with only one act or one offense which cannot constitute plunder. He then assails the denial of his right to bail.
Petitioner’s premise is patently false. A careful examination of the Amended Information will show that it is divided into three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of plunder together with petitioner Jose “Jinggoy” Estrada, Charlie “Atong” Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the second paragraph spells out in general terms how the accused conspired in committing the crime of plunder; and (3) the following four sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed each act.
Pertinent to the case at bar is the predicate act alleged in
sub-paragraph (a) of the Amended Information which is of “receiving or
collecting, directly or indirectly, on several instances, money in the
aggregate amount of P545,000,000.00 for illegal gambling in the form of
gift, share, percentage, kickback or any form of pecuniary benefit x x x.” In
this sub-paragraph (a), petitioner, in conspiracy with former President
Estrada, is charged with the act of receiving or collecting money from illegal
gambling amounting to P545 million.
Contrary to petitioner’s posture, the allegation is that he received or
collected money from illegal gambling “on several instances.” The
phrase “on several instances” means the petitioner committed the predicate act
in series. To insist that the
Amended Information charged the petitioner with the commission of only one act
or offense despite the phrase “several instances” is to indulge in a twisted,
nay, “pretzel” interpretation.
It matters little that sub-paragraph (a) did not utilize the
exact words “combination” or “series” as they appear in R.A. No. 7080. For in Estrada v. Sandiganbayan,[13]
we held that where these two terms are to be taken in their popular, not
technical, meaning, the word “series” is synonymous with the clause “on several
instances.” “Series” refers to a repetition of the same predicate act in any of
the items in Section 1 (d) of the law.
The word “combination” contemplates the commission of at least any two
different predicate acts in any of said items.
Plainly, sub-paragraph (a) of
the Amended Information charges petitioner with plunder committed by a series
of the same predicate act under Section 1 (d) (2) of the law.
Similarly misleading is petitioner’s stand that in the Ombudsman
Resolution of April 4, 2001 finding probable cause to charge him with plunder
together with the other accused, he was alleged to have received only the sum
of P2 million, which amount is way below the minimum of P50 million required
under R.A. No. 7080. The submission is
not borne out by the
“x x x x x x x x x
Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San Juan,
Metro Manila, appears to have also surreptitious collection of protection money
from jueteng operations in Bulacan. This
is gleaned from the statements of Gov. Singson himself and the fact that Mayor
Estrada, on at least two occasions, turned over to a certain Emma Lim,
an emissary of the respondent governor, jueteng haul totalling P2 million,
i.e., P1 million in January, 2000 and another P1 million in February, 2000. An
alleged “listahan” of jueteng recipients listed him as one “Jingle
Bell,” as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000
SBRC/SCI].”[14]
Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was delivered to petitioner as “jueteng haul” on “at least two occasions.” The P2 million is, therefore, not the entire sum with which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman that:
“x x x x x x x x x
It is clear that Joseph Ejercito Estrada, in confabulation with
Jose ‘Jinggoy’ Estrada, Atty. Edward Serapio and Yolanda Ricaforte, demanded
and received, as bribe money, the aggregate sum of P545 million from jueteng
collections of the operators thereof, channeled thru Gov. Luis ‘Chavit’
Singson, in exchange for protection from arrest or interference by law
enforcers; x x x.”[15]
To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment and is now on trial. The time to assail the finding of probable cause by the Ombudsman has long passed. The issue cannot be resurrected in this petition.
II.
Next, petitioner contends that “the plunder law does not provide
sufficient and complete standards to guide the courts in dealing with accused
alleged to have contributed to the offense.”[16] Thus, he posits the following questions:
“For example, in an Information for plunder which cites at least
ten criminal acts, what penalty do we impose on one who is clearly involved in
only one such criminal act? Is it reclusion
perpetua? Or should it be a lesser penalty? What if another accused is
shown to have participated in three of the ten specifications, what would be
the penalty imposable, compared to one who may have been involved in five or
seven of the specifications? The law
does not provide the standard or specify the penalties and the courts are left
to guess. In other words, the courts are
called to say what the law is rather than to apply what the lawmaker is
supposed to have intended.”[17]
Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the Amended Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A. No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner, however, overlooks that the second paragraph of the Amended Information charges him to have conspired with former President Estrada in committing the crime of plunder. His alleged participation consists in the commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If these allegations are proven, the penalty of petitioner cannot be unclear. It will be no different from that of the former President for in conspiracy, the act of one is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz:
“Section 2. Any public officer who, by himself or in connivance with the 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 as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. 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. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.”
III.
Petitioner also faults the respondent Sandiganbayan for
“sustaining the charge against petitioner for alleged offenses and with alleged
conspirators, with which and with whom he is not even remotely connected –
contrary to the dictum that criminal liability is personal, not vicarious –
results in the denial of substantive due process.”[18]
The Solicitor General argues, on the other hand, that petitioner
is charged not only with the predicate act in sub-paragraph (a) but also with
the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted
as a principal and as co-conspirator of the former President. This is purportedly clear from the first and
second paragraphs of the Amended Information.[19]
For better focus, there is a need to examine again the allegations of the Amended Information vis-à-vis the provisions of R.A. No. 7080.
The Amended Information, in its first two paragraphs, charges
petitioner and his other co-accused with the crime of plunder. The first paragraph names all the accused,
while the second paragraph describes in general how plunder was committed and lays down most of the elements of the
crime itself. Sub-paragraphs (a) to
(d) describe in detail the predicate acts that constitute the crime and name in
particular the co-conspirators of former President Estrada in each predicate
act. The predicate acts alleged in the
said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of
R.A. No. 7080. Sub-paragraph (a)
alleged the predicate act of receiving, on several instances, money from
illegal gambling, in consideration of toleration or protection of illegal
gambling, and expressly names petitioner as one of those who conspired with
former President Estrada in committing the offense. This predicate act corresponds with the
offense described in item [2] of the enumeration in Section 1 (d) of R.A. No.
7080. Sub-paragraph (b) alleged the
predicate act of diverting, receiving or misappropriating a portion of the
tobacco excise tax share allocated for the
From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused with the former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth amounting to more than P4 billion.
We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth.[20] They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan.[21] R.A. No. 7080 or the Anti-Plunder Law[22] was enacted precisely to address this procedural problem. This is pellucid in the Explanatory Note to Senate Bill No. 733, viz:
“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. 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. 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.”
There is no denying the fact that the “plunder of an entire
nation resulting in material damage to the national economy” is made up of a
complex and manifold network of crimes. In the crime of plunder, therefore, different
parties may be united by a common purpose. In the case at bar, the different accused and
their different criminal acts have a commonality—to help the former President
amass, accumulate or acquire ill-gotten wealth.
Sub-paragraphs (a) to (d) in the Amended Information alleged the
different participation of each accused in the conspiracy. The gravamen of the conspiracy charge,
therefore, is not that each accused agreed to receive protection money
from illegal gambling, that each misappropriated a portion of the tobacco
excise tax, that each accused ordered the GSIS and SSS to purchase shares of
Belle Corporation and receive commissions from such sale, nor that each
unjustly enriched himself from commissions, gifts and kickbacks; rather, it
is that each of them, by their individual acts, agreed to participate, directly
or indirectly, in the amassing, accumulation and acquisition of ill-gotten
wealth of and/or for former President Estrada.
In the American jurisdiction, the presence of several
accused in multiple conspiracies commonly involves two structures: (1) the
so-called “wheel” or “circle” conspiracy, in which there is a single person or
group (the “hub”) dealing individually with two or more other persons or groups
(the “spokes”); and (2) the “chain” conspiracy, usually involving the
distribution of narcotics or other contraband, in which there is successive
communication and cooperation in much the same way as with legitimate business
operations between manufacturer and wholesaler, then wholesaler and retailer,
and then retailer and consumer.[23]
From a reading of the Amended Information, the case at bar appears similar to a “wheel” conspiracy. The hub is former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
IV.
Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the allegation of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve as a net to ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence.
We should not confuse our law on conspiracy with conspiracy in
American criminal law and in common law.
Under Philippine law, conspiracy should be understood on two
levels. As a general rule, conspiracy is
not a crime in our jurisdiction. It is
punished as a crime only when the law fixes a penalty for its commission such
as in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the
agreement or conspiracy itself is the gravamen of the offense.[24]
The essence of conspiracy is the combination of two or more persons, by
concerted action, to accomplish a criminal or unlawful purpose, or some purpose
not in itself criminal or unlawful, by criminal or unlawful means.[25]
Its elements are: agreement to
accomplish an illegal objective, coupled with one or more overt acts in
furtherance of the illegal purpose; and requisite intent necessary to commit
the underlying substantive offense.[26]
A study of the
“Sec. 371. Conspiracy to commit offense or to defraud the
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”
Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz:
“Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both.”
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy
to commit any offense against the
The conspiracy to “defraud the government” refers primarily to
cheating the
The basic difference in the concept of conspiracy notwithstanding,
a study of the American case law on how conspiracy should be alleged
will reveal that it is not necessary for the indictment to include
particularities of time, place, circumstances or causes, in stating the manner
and means of effecting the object of the conspiracy. Such specificity of detail falls within the
scope of a bill of particulars.[37] An indictment for conspiracy is sufficient
where it alleges: (1) the agreement; (2) the offense-object toward which the
agreement was directed; and (3) the overt acts performed in furtherance of the agreement.[38]
To allege that the defendants conspired is, at least, to state that they agreed
to do the matters which are set forth as the substance of their
conspiracy. To allege a conspiracy is to
allege an agreement.[39] The gist of the crime of conspiracy is
unlawful agreement, and where conspiracy is charged, it is not necessary to set
out the criminal object with as great a certainty as is required in cases where
such object is charged as a substantive offense.[40]
In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time, place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the information for this crime must contain the following averments:
“Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.
When the offense was committed by more than one person, all of them shall be included in the complaint or information.”
The complaint or information to be sufficient must state the name of the accused, designate the offense given by statute, state the acts or omissions constituting the offense, the name of the offended party, the approximate date of the commission of the offense and the place where the offense was committed.
Our rulings have long settled the issue on how the acts or
omissions constituting the offense should be made in order to meet the standard
of sufficiency. Thus, the offense must
be designated by its name given by statute or by reference to the section or
subsection of the statute punishing it.[41]
The information must also state the acts or omissions constituting the offense,
and specify its qualifying and aggravating circumstances.[42]
The acts or omissions complained of must be alleged in such form as is
sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment.[43]
No information for a crime will be sufficient if it does not accurately and
clearly allege the elements of the crime charged.[44]
Every element of the offense must be stated in the information.[45]
What facts and circumstances are necessary to be included therein must be
determined by reference to the definitions and essentials of the specified
crimes.[46]
The requirement of alleging the elements of a crime in the information is to
inform the accused of the nature of the accusation against him so as to enable
him to suitably prepare his defense. The
presumption is that the accused has no independent knowledge of the facts that
constitute the offense.[47]
To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set forth in the complaint or information. For example, the crime of “conspiracy to commit treason” is committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it.[48] The elements of this crime are: (1) that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in which the Philippines is involved; (3) that the offender and other person or persons come to an agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the offender and other person or persons decide to carry out the agreement. These elements must be alleged in the information.
The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its particularities in the Information because conspiracy is not the gravamen of the offense charged. The conspiracy is significant only because it changes the criminal liability of all the accused in the conspiracy and makes them answerable as co-principals regardless of the degree of their participation in the crime.[49] The liability of the conspirators is collective and each participant will be equally responsible for the acts of others,[50] for the act of one is the act of all.[51] In People v. Quitlong,[52] we ruled on how conspiracy as the mode of committing the offense should be alleged in the Information, viz:
“x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient “if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them (15A C.J.S. 842-844).
x x x x x x x x x
x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words “conspired” or “confederated” or the phrase “acting in conspiracy,” must aptly appear in the information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term “conspire” or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused.
x x x x x x x x x.”
Again, following the stream of our own jurisprudence, it is
enough to allege conspiracy as a mode in the commission of an offense in either
of the following manner: (1) by use of the word “conspire,” or its
derivatives or synonyms, such as confederate, connive, collude, etc;[53]
or (2) by allegations of basic facts constituting the conspiracy in a manner
that a person of common understanding would know what is intended, and with
such precision as would enable the accused to competently enter a plea to a
subsequent indictment based on the same facts.[54]
The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement, a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually pursue it.[55] A statement of this evidence is not necessary in the information.
In the case at bar, the second paragraph of the Amended Information alleged in general terms how the accused committed the crime of plunder. It used the words “in connivance/conspiracy with his co-accused.” Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former President in committing the crime of plunder.
V.
We now come to petitioner’s plea for bail. On
For three days, i.e., on September 4, 20 and 27, 2001, respondent
Sandiganbayan conducted hearings on the motion for bail. Dr. Roberto V. Anastacio, a cardiologist of
the
On
On the same day, we issued a Resolution referring the motion to
respondent Sandiganbayan for resolution and requiring said court to make a
report, not later than
On
The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life imprisonment are non-bailable when the evidence of guilt is strong, to wit:
“Sec. 7. Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable. – No person charged with a
capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal prosecution.”[59]
Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987 Constitution which reads:
“Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”
The constitutional mandate makes the grant or denial of bail in
capital offenses hinge on the issue of whether or not the evidence of guilt
of the accused is strong. This
requires that the trial court conduct bail hearings wherein both the
prosecution and the defense are afforded sufficient opportunity to present
their respective evidence. The burden of
proof lies with the prosecution to show strong evidence of guilt.[60]
This Court is not in a position to grant bail to the petitioner
as the matter requires evidentiary hearing that should be conducted by the
Sandiganbayan. The hearings on which
respondent court based its Resolution of
Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the evidence of petitioner’s guilt is strong as to warrant the granting of bail to petitioner.
IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Mendoza, Panganiban,
Quisumbing, and De Leon, Jr., JJ., concur.
Vitug, J., please see Separate Opinion.
Kapunan, and Buena, J., joins
Justices Santiago and Gutierrez in their separate dissenting opinions.
Ynares-Santiago, J., pls. see separate Dissenting Opinion.
Sandoval-Gutierrez, J., please see my Dissent.
Carpio, J., no part as before.
[1] Annex “H” to
Petition, Rollo, pp. 217-310.
[2] Annex “D” to
Petition, Rollo, pp. 52-57.
[3]
[4] Annex “D-1” to
Petition, Rollo, pp. 59-69.
[5] Annex “D-2” to
Petition, Rolo, pp. 72-83.
[6] Annex “E” to
Petition, Rollo, pp. 87-124.
[7]
[8] Annex “E-1” to
Petition, Rollo, pp. 126-128.
[9] Petition, pp. 10-11,
Rollo, pp. 12-13.
[10] Petition. p. 12, Rollo,
p. 14.
[11] G.R. No. 148560,
[12] Annex “C” to
Petition, Rollo, pp. 47-49.
[13] Supra note
11.
[14] Ombudsman Resolution
of April 4, 2001, Annex “H” to Petition, p. 61, Rollo, p. 278.
[15]
[16] Petition, p. 18.
[17] Petition, pp. 24-25,
Rollo, pp. 26-27.
[18] Petition, p. 25, Rollo,
p. 27.
[19] Comment of the
Solicitor General, pp. 26-36, 85-91, Rollo, pp. 379-389, 438-444.
[20] Sponsorship Remarks
of Pablo Garcia on H.B. No. 22752,
Congressional Proceedings,
[21] Ibid.
[22] The law is a
consolidation of S.B. No. 733 and H.B. No.
22752.
[23] LaFave & Scott, Criminal Law, Second Edition, Hornbook Series, pp. 550-551 [1986]. There is a third type referred to as the “enterprise conspiracy” introduced by the Racketeer Influence and Corrupt Organizations (RICO) Act of 1970, a law enacted to eradicate organized crime in the United States (18 U.S.C. Sec. 1961 et seq.). Under the RICO, it is “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” “Racketeering activity” includes a great variety of serious criminal conduct, such as murder, kidnapping, arson, robbery, bribery, extortion and drug dealing, and for there to be a “pattern” there must be at least two such acts within a 10-year span. The RICO has its own conspiracy provision.
In United States v. Elliot, 571 F 2d
880 [5th Cir. 1978], it was held that the RICO created a substantive
offense by tying together diverse parties and crimes. It is irrelevant that each defendant
participated in the enterprise’s affairs through different, even unrelated
crimes, so long as it may be reasonably inferred that each crime was intended
to further the enterprise’s affairs (at 902-903). The Elliot approach has been sharply
criticized by legal commentators. Elliot
made certain affairs of an enterprise a new substantive offense in addition to
the underlying racketeering activity.
The requirement remains that the activities making up a multiple
criminal conspiracy must be connected, and the term ‘enterprise’ as applied by Elliot
did not supply the connection. Recent
trend rejects the ideas espoused in Elliot and returns to traditional
conspiracy principles in determining complicity in multi-defendant RICO
prosecutions.—LaFave & Scott, supra at 554 citing United States v.
Griffin, 660 F 2d 996 [4th Cir.1981], United States v.
Errico, 635 F 2d 152 [2d Cir. 1980], United States v. Anderson, 626 F 2d
1358 [8th Cir. 1980].
[24] In the American
jurisdiction, there is a clear distinction in the law of conspiracy as applied
in civil and criminal cases. In
criminal conspiracy, the agreement or conspiracy is the gravamen of the
offense. In civil action, the
conspiracy is not the gravamen of the charge, but may be both pleaded and
proved as aggravating the wrong which the plaintiff complains, the gravamen of
the tort being the damage resulting to plaintiff from an overt act done
pursuant to the common design—15A C.J.S. “Conspiracy” Sec. 1 (1).
[25] 18 U.S.C.A. Sec.
371, Note 31 citing cases.
[26]
[27] 18 U.S.C. Sec. 241
also punishes conspiracy to deprive persons of their civil rights.
[28] Conspiracy is an
enlargement of the common-law doctrine of aiding and abetting or being a
principal, or an accessory before the fact - U.S. v. Molin, 244 F
Supp 1015 [1965]. At common-law, the
crime of conspiracy was complete when one agreed with others to do an unlawful
act, or to do a lawful act in an unlawful way.
Sec. 371 (formerly Sec. 88) added the requirement that some members of
the conspiracy did an overt act in furtherance of the venture - Deacon v.
U.S., 124 F 2d 352; see also 18 U.S.C.A. Sec. 371, Note 33.
[29] State v.
Henglefelt, 33 NW 2d 492 [1948].
[30]
[31]
[32] John M. Scheb and
John M. Scheb II, Criminal Law, p. 87 [1999].
For other cases on conspiracy to commit substantive offenses, see
18 U.S.C.A. Sec. 371, Note 33; see also Ninth Decennial Digest Part I
vol. 5 “Conspiracy” Key 28 (3).
[33]
[34] United States v.
Romeros, 600 F 2d 1104 [1979] certiorari denied 100 S Ct 1025, 444 US 1077, 62
L Ed 2d 759; Perluss v. United States, 101 S Ct 863, 449 US 1080, 66 L
Ed 2d 804 [1980]. Generally, a requirement for a conspiracy conviction is proof
of an agreement. Conviction in the
substantive count requires consummation of the crime which is not essential for
completing the crime of conspiracy -- United States v. Wylie, 625 F 2d
1371 [1980] certiorari denied.
[35]
[36]
[37]
[38] Reno v.
United States, 317 F 2d 499 [1963], certiorari denied 375 US 828, 11 L
Ed 2d 60, 84 S Ct 72; see Lester B. Orfield, Criminal Procedure Under
the Federal Rules, Rule 1- Rule 9, vol. 1, p. 689, Note 4. Federal law requires an overt act in a
conspiracy to commit an offense or defraud the
[39]
[40]
[41] Section 8, Rule 110,
Revised Rules of Criminal Procedure.
[42] Ibid.
[43] Section 9, Rule 110,
Revised Rules of Criminal Procedure.
[44] People v. Sy
Gesiong, 60 Phil. 614, 616-617 [1934]; Sugay v. Pamaran, 41 SCRA 260,
265 [1971]; see Francisco, Criminal Procedure, pp. 55-57 [1993].
[45] Agpalo, Handbook on
Criminal Procedure, p. 52 [2001].
[46] Balitaan v.
Court of First Instance of Batangas, 115 SCRA 729, 739 [1982].
[47] Ibid.
[48] Articles 115, 114
and 8, Revised Penal Code; Reyes, The Revised Penal Code, Book II, p. 16 [1993
ed]; Francisco, Revised Penal Code, Book II, p. 27 [1960].
[49] People v.
Solon, 244 SCRA 554 [1995].
[50] People v. Chua, 297 SCRA 229
[1998].
[51] People v.
Rodico, 249 SCRA 309 [1995]; People v. Lopez, 249 SCRA 610 [1995].
[52] 292 SCRA 360,
376-378 [1998].
[53] People v.
Quitlong, supra at 378.
[54] See also 15A
C.J.S. “Conspiracy” Sec. 80 [1967 ed.], cited in People v. Quitlong.
[55] People v.
Paguntalan, 242 SCRA 753 [1995]; People v. de Leon, 245 SCRA 785 [1995];
People v. Nacional, 248 SCRA 122 [1995].
[56] Rollo, pp.
620-626.
[57] Resolution of
[58]
[59] Section 7, Rule 114,
Revised Rules of Criminal Procedure.
[60] Agpalo, Handbook on
Criminal Procedure, p. 263 [2001].