Sunday, October 21, 2007

Erap may get reprieve from right reading of plunder

Very few were surprised when, after six years of trial, the Sandiganbayan found ousted President Joseph Ejercito Estrada guilty of plunder and sentenced him to reclusion perpetua on September 12, 2007. Then, as now, many felt the case was primarily, if not purely, political; that there was no way to acquit Estrada without effectively finding President Gloria Macapagal Arroyo guilty of a worse crime.

Estrada and Arroyo were first elected president and vice president respectively, for a term of six years, in 1998. In 2000, Estrada was impeached by the House of Representatives and brought to the Senate for trial. But the trial ended in the streets when the prosecutors walked out, and anti-Estrada forces called for his ouster. The Armed Forces chief of staff then led a mutiny and the Chief Justice of the Supreme Court swore in Mrs. Arroyo as president, without a vacancy in Malacanang. That was January 20, 2001.

Intense pressure was promptly made to bear on Estrada to resign formally and leave the country, or at least to leave the country even without writing a letter of resignation. When he refused, he was charged with plunder, arrested and jailed on April 25, 2001. He has been in detention since.

The plunder law (Republic Act 7080) was enacted in 1991. It was meant to punish, according to its authors, “not simple cases of malversation of public funds, bribery, extortion, theft and graft, but [the] plunder of an entire nation, resulting in material damage to the national economy.” Thus, “any public officer who, by himself or in connivance with 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 over or criminal acts…in the aggregate amount of P50 million shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.” The death penalty has since been stricken off our laws.

To establish the crime of plunder, it is necessary to prove beyond reasonable doubt a pattern of overt or criminal acts indicative of a conspiracy or an overall unlawful scheme.

Estrada was accused of having amassed P4,097,804,173.17 by:

(a) Receiving or collecting P545 million from illegal gambling in
connivance with Charlie ‘Atong’Ang, Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward Serapio, and John Does and Jane Does in consideration of “toleration or protection of illegal gambling”;

(b) Diverting P130 million from the tobacco excise tax share of the
Province of Ilocos Sur in connivance with Atong Ang, Alma Alfaro, Eleuterio Tan, Delia Rajas and other John Does and Jane Does;

(c) Ordering and compelling the Government Service Insurance System
(GSIS) to purchase 351,878,000 shares of stock, and the Social Security System (SSS) 329,855,000 shares of stock of the Belle Corporation for a total of P1,847,578.50, and collecting P189,700,000 as commission from Belle;

(d) Amassing P3,233,104,173.17 from commissions, gifts, shares,
percentages, kickbacks, and depositing the same in the account of Jose Velarde at Equitable-PCIBank.

The court acquitted Estrada on (b) and (d), but found him guilty on (a)
and (c). Estrada, through counsel, moved for reconsideration. On Oct. 19, the Sandigan heard oral arguments on the motion.

It was an education in the law, particularly on plunder. Arguing for the defense, lawyers Estelito Mendoza and Rene Saguisag pointed out why Estrada could not be held for plunder.

The crime of plunder, Mendoza pointed out, quoting the law and the Senate debates during its enactment, requires an overall scheme and a conspiracy to commit a combination or series of inter-connected acts which, when executed, results not only in the unlawful accumulation of P50 million or more, but also in material damage to the economy of the nation. The prosecution failed to show this, Mendoza argued; there is, therefore, no basis for the court’s conclusion.

In the case of the jueteng money, the prosecution built its case solely on the word of former Ilocos Sur Governor Luis “Chavit” Singson. He testified that he collected money from the jueteng operators over a period of time, recorded his collections in listahans, which he described as “ledgers,” turned over the money to Estrada in exchange for his “toleration or protection” of jueteng.

Mendoza pointed out that the only crime established by Singson’s testimony was his own. For Estrada to be held liable for plunder, he should have conspired with Singson and others. But the prosecution failed to allege a conspiracy, and Singson, who has confessed to his crime, is not named as a co-conspirator. Absent such conspiracy, Singson’s crime, which the state had chosen to condone in exchange for his uncorroborated testimony, cannot be attributed to Estrada or others.

The acquittal of Erap’s son, Senator Jinggoy Estrada, and his lawyer Edward Serapio, corporate secretary of the Erap Muslim Youth Foundation, which received and retains custody of P200 million from Singson, only makes the point clear. There can be no finding of plunder.

Another co-accused Atong Ang entered into a plea bargaining agreement with the state and was convicted of the crime of corrupting public officers. This effectively erased the original charges against him, and removes him as a possible co-conspirator.

Likewise, in the SSS/GSIS purchase of the Belle shares, purchase was done by SSS Administrator Carlos Arellano and by GSIS head Ding Pascual. Again, the prosecution failed to allege a conspiracy, and neither Arellano nor Pascual was named as co-conspirator. Estrada cannot be held liable for the acts of Arellano and Pascual.

Assuming the acts alleged in (a) and (c) have been committed, they do not constitute “a combination or series” flowing from a conspiracy or an overall scheme and whose execution materially damaged the economy of the nation. The prosecution failed to allege it and there is no evidence on record to show it.

Special Prosecutor Dennis Villa-Ignacio, mild-mannered and low key, read a prepared rebuttal. But it was mute on the specific issues raised by the defense. Mendoza took this to mean the prosecution was conceding the points of the defense. But even if the prosecution does not concede, the oral arguments succeeded in raising reasonable doubt about the correctness of the court’s decision. For this reason alone, the Justices may have to reconsider.

There may be a broader and highly compelling reason. This is the first plunder trial since the law was enacted in 1991. And the accused is a former President. There may be some pressure to affirm the conviction, but the precedent the court will set could very well apply to the next outgoing President, and the next and the next. In an imperfect system where today’s prosecutors may be tomorrow’s prosecuted, the court may not want to create a precedent that would make it so easy for any administration to let the last former president spend the rest of his natural life as a convicted plunderer.

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