I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
Plunder is committed when a public officer amasses ill-gotten wealth of at least Php50 million by an act or series of overt (read: not secret) criminal acts that may constitute different offenses. It isn't necessary to prove each act distinctly. Simply proving that the acts show a pattern of accumulation is enough. The series of acts are considered a continuing crime. It may be committed by the public officer himself or in connivance with family members and relatives (whether by affinity or consanguinity,) business associates, subordinates or other persons. The crime must, however, be committed in relation to the office of the public officer or another set of laws will apply (Organo vs. Sandiganbayan, GR 136916, December 14, 1999.)
The penalty is reclusion perpetua for the offender and anyone who participated with him in an offense that led to the crime of plunder. It used to be reclusion perpetua to death until the death penalty was abolished in 2006. The court will also declare any and all ill-gotten wealth and their interests and other income and assets (including properties and shares of stock that came from the transactions in question) forfeited in favor of the state.
During the pendency of the case, the official will be suspended. If he's found guilty, he'll lose all retirement and gratuity benefits under any law. If acquitted, he'll be automatically reinstated and entitled to the salaries and other benefits he failed to receive during his suspension unless administrative proceeding have also been filed against him.
If the officer in question belongs to Salary Grade 27 or higher under RA 6758 (Compensation and Position Classification Act) then he will be tried in the Sandiganbayan. If he's grade 26 or lower, he'll be tried in the lower courts (Organo vs. Sandiganbayan.)
In Estrada vs. Sandiganbayan (GR 148560, November 19, 2001) the nature of plunder is that of malum in se (evil in itself.) Mitigating and aggravating circumstances therefore can be applied.
Ill-Gotten Wealth
These are assets, properties, business enterprises or material possessions of the errant public officer (as well as his co-accused outside government) that he acquired directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by a combination or series of the following (or similar) means:
1.) Misappropriation, misuse, conversion or malversation of public funds of raids on the public treasury
2.) Directly or indirectly receiving commissions, gifts, shares, percentages, kickbacks or equities in connection with any government contract or project or by reason of the office/position of the officer in question
3.) Illegal/fraudulent conveyance or disposition of assets belonging to the national government or any of its subdivisions, agencies or instrumentalities (including government-owned/controlled corporations)
4.) Directly or indirectly receiving, obtaining or accepting 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)
5.) Establishing agricultural, industrial or commercial monopolies or other combinations and/or implementing decrees and orders intended to benefit particular persons or special interests
6.) Taking undue advantage of official position, authority, relationship, influence or connection to unjustly enrich oneself at the expense of the Filipino people and the Republic of the Philippines
A "combination" under the definition of ill-gotten wealth refers to at least 2 of any of the above categories. A "series" refers to 2 or more overt criminal acts within each category.
The plunder law's constitutionality has been questioned because of supposedly general terms or vague ones that lack definition. However, this claim has been debunked because there are parameters that it has set (like the Php50 million amount) that make it clear and don't violate the constitutional rights of the accused. If the acts of the public officer in question don't meet the definition of plunder and ill-gotten wealth, other laws like RA 3019, including its provisions on SALN will come into view. The non-government people also have the same law's non-government provisions in case they can't be charged under RA 7080.
Then, of course, there are other related laws. The crime of plunder has a prescriptive period of 20 years.
The penalty is reclusion perpetua for the offender and anyone who participated with him in an offense that led to the crime of plunder. It used to be reclusion perpetua to death until the death penalty was abolished in 2006. The court will also declare any and all ill-gotten wealth and their interests and other income and assets (including properties and shares of stock that came from the transactions in question) forfeited in favor of the state.
During the pendency of the case, the official will be suspended. If he's found guilty, he'll lose all retirement and gratuity benefits under any law. If acquitted, he'll be automatically reinstated and entitled to the salaries and other benefits he failed to receive during his suspension unless administrative proceeding have also been filed against him.
If the officer in question belongs to Salary Grade 27 or higher under RA 6758 (Compensation and Position Classification Act) then he will be tried in the Sandiganbayan. If he's grade 26 or lower, he'll be tried in the lower courts (Organo vs. Sandiganbayan.)
In Estrada vs. Sandiganbayan (GR 148560, November 19, 2001) the nature of plunder is that of malum in se (evil in itself.) Mitigating and aggravating circumstances therefore can be applied.
Ill-Gotten Wealth
These are assets, properties, business enterprises or material possessions of the errant public officer (as well as his co-accused outside government) that he acquired directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by a combination or series of the following (or similar) means:
1.) Misappropriation, misuse, conversion or malversation of public funds of raids on the public treasury
2.) Directly or indirectly receiving commissions, gifts, shares, percentages, kickbacks or equities in connection with any government contract or project or by reason of the office/position of the officer in question
3.) Illegal/fraudulent conveyance or disposition of assets belonging to the national government or any of its subdivisions, agencies or instrumentalities (including government-owned/controlled corporations)
4.) Directly or indirectly receiving, obtaining or accepting 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)
5.) Establishing agricultural, industrial or commercial monopolies or other combinations and/or implementing decrees and orders intended to benefit particular persons or special interests
6.) Taking undue advantage of official position, authority, relationship, influence or connection to unjustly enrich oneself at the expense of the Filipino people and the Republic of the Philippines
A "combination" under the definition of ill-gotten wealth refers to at least 2 of any of the above categories. A "series" refers to 2 or more overt criminal acts within each category.
The plunder law's constitutionality has been questioned because of supposedly general terms or vague ones that lack definition. However, this claim has been debunked because there are parameters that it has set (like the Php50 million amount) that make it clear and don't violate the constitutional rights of the accused. If the acts of the public officer in question don't meet the definition of plunder and ill-gotten wealth, other laws like RA 3019, including its provisions on SALN will come into view. The non-government people also have the same law's non-government provisions in case they can't be charged under RA 7080.
Then, of course, there are other related laws. The crime of plunder has a prescriptive period of 20 years.
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