[G.R. No. 148560.

January 29, 2002]

ESTRADA vs. SANDIGANBAYAN et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 29 2002.

G.R. No. 148560(Joseph Ejercito Estrada vs. Sandiganbayan (3rd Division) and the People
of the Philippines.)

Considering the motion for reconsideration filed by petitioner Joseph Ejercito Estrada and
finding nothing therein that in any way compels a modification of the decision rendered in
this case on November 19, 2001, the Court, by vote of 10 to 4 of its members, with one
abstention, RESOLVED to DENY with finality the aforesaid motion for reconsideration, as
well as petitioner's motion for oral arguments, for lack of merit.

Davide, Jr. C.J., and Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Buena,
and De Leon, JJ. reiterate their votes to dismiss the petition in this case. In addition,
Mendoza, J. filed a separate opinion (hereto attached) in which Davide, Jr., C.J., and
Bellosillo, Melo, Puno, Vitug, Quisumbing, Buena and De Leon, Jr., JJ., concur.

Panganiban, J., reiterates his concurring opinion in the main case and holds that it is
unnecessary to rule on whether, as contended by petitioner, the Anti-Plunder Law should
initially be presumed invalid for allegedly derogating fundamental rights, because the State
has shown - and the Court has already upheld - its constitutionality.

Kapunan, Pardo, Ynares-Santiago, and Sandoval-Gutierrez, JJ., maintain their respective

dissents.
Carpio, J., reiterates that he takes no part, having been one of the complainants before the
Office of the Ombudsman.

Considering that petitioner's motions for reconsideration and for oral arguments have
been denied with finality, no further pleadings shall be entertained by this Court.

SEPARATE OPINION

MENDOZA, J., concurring in the denial of the motion for reconsideration:

Petitioner moves for a reconsideration of the decision rendered in this case on November
19, 2001. He makes several arguments which can be reduced to two propositions. First, he
contends that a facial review of the Anti-Plunder Law is required because (1) the law
imposes the death penalty; (2) where a penal law affects fundamental rights, the law is
presumed void and the government has the burden of showingthat it is valid; (3) the
provisions of the Anti-Plunder Law are not severable so that, if any provision is void, the
whole statute is void, petitioner invoking in this connection the principle that no one can be
prosecuted except under a valid law. Second, petitioner contends that (1) the provisions of
the Anti-Plunder Law under which he is being prosecuted are vague and overbroad and
their vagueness cannot be cured either by reference to the specific allegations of the
Amended Information or by judicial construction and (2) the provisions in question violate
the Due Process and Equal Protection guarantees of the Constitution.

These contentions will be dealt with in Part I and Part II in the order in which they are
made. Then, in Part III, the implications of adopting petitioner's theory will be discussed.

I.ON PETITIONER'S CLAIM THAT THE ANTI-PLUMBER LAW MUST BE

REVIEWED NOT ONLY AS APPLIED TO HIM BUT ALSO AS APPLIED

TO OTHERS TO DETERMINE THE VALIDITY OF THAT LAW

The question is whether petitioner can assail R.A. No. 7080 on the ground that as applied to
other persons it is unconstitutional for being vague and overbroad. The question arises in
the following context. Section 2, in relation to 1(d), of R.A. No. 7080, otherwise known as
the Anti-Plunder Law, makes it a crime for any public officer, directly or indirectly, to
"amass, accumulate or acquire . . . any asset, property, business enterprise or material
possession" amounting to at least P50 million, through a "combination or series" of any of
the following overt or criminal acts:

1) Through misappropriation, conversion, misuse, or malversation of public funds or

raids on the public treasury.

2) By receiving, directly or indirectly, an commission, gift, share, percentage, kickbacks

or any other form of pecuniary benefit from any person and/or entity in connection with
any government contract or project or by reason of the office or position of the public
officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the

National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries.

4) By Obtaining, receiving or accepting directly or indirectly 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) By establishing agricultural, industrial or commercial monopolies or other

combinations and/or implementation of decrees and orders intended to benefit particular
persons or special interests; or

6) By taking undue advantage or 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.

Petitioner is charged with violation of 2, in relation to 1(d), subparagraphs (1) and (2) of
the law as above quoted. The question is whether he can assail the constitutionality of
1(d), subparagraphs (3), (4), (5) and (6) as well, on the theory that, if these provisions are
invalid, there is no law under which petitioner can be prosecuted. The question should be
answered in the negative.

A. This Case is Governed by the General Rule

There are two types of constitutional challenges: "as-applied" challenges and "on-its-face"
challenges. As-applied challenges constitute the general rule. The application of this rule,
which governs this case, is exemplified by Tan v. People[1]cralaw in which it was held that
a person accused of violating P.D. No. 705, 68, which prohibits the possession of lumber
without permit from the Bureau of Forest Development, cannot question its validity insofar
as it also prohibits the unauthorized possession of other "forest products" on the ground
that the definition of the latter term is so broad that it includes even the mere possession of
firewood, bark, honey, beeswax, grass, shrubs, and flowering plants. In rejecting the facial
challenge to the law, this Court held that as the accused were charged with violation of the
part of the order relating to the unauthorized possession of "lumber," they could not assail
its other provisions. It was stated: "[P]etitioners were not charged with the [unlawful]
possession of firewood, bark, honey, beeswax, [or] grass, shrub, the 'associated water' or
fish; thus, the inclusion of any of there enumerated items in EO 277 is absolutely of no
concern to petitioners. They are not asserting a legal right for which they are entitled to a
judicial determination at this time."[2]cralaw

Indeed, it has been pointed out hat "procedures for testing the constitutionality of a statue
'on its face'. . . are fundamentally at odds with the function of courts in our constitutional
plan."[3]cralaw When an accused is guilty of conduct that can constitutionally be
prohibited and that the State has endeavored to prohibit, the State should be able to inflict
its punishment. Such punishment violates no personal right of the accused. Accordingly, as
the enforcement of the Anti-Plunder Law is not alleged to produce a chilling effect on
freedom of speech or religion or some "fundamental rights" to be presently discussed, only
such of its provisions can be challenged by petitioner as are sought to be applied to
him.Petitioner cannot challenge the entire statute on its face. A contrary rule would permit
litigation to turn on abstract hypothetical applications of a statute and disregard the wise
limits placed on the judicial power by the Constitution. As Justice Laurel stressed in Angara
v. Electoral Commission,[4]cralaw "the power of judicial review is limited to actual cases
and controversies . . .and limited further to the constitutional question raised or the very lis
mota presented."

B. This Case Does not Come Within the Exception

Permitting Facial Challenges to Statutes

"Facial" challenges are the exceptions. They are made whenever it is alleged that
enforcement of a statute produces a chilling or inhibitory effect on the exercise of protected
freedoms because of the vagueness or overbreadth of the provisions of such statute. Put in
another way, claims of facial overbreadth alone, when invoked against ordinary criminal
laws like the Anti-Plunder Law, are insufficient to move a court to examine the statute on
its face. It can only be reviewed as applied to the challenger's conduct.[5]cralaw The same
rule applies to claims of vagueness. It is equally settled that "a plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."[6]cralaw

In free speech or First Amendment cases, the rule is different because of the chilling effect
which enforcement of the statute might have on the exercise of protected freedoms. This
reason is totally absent in the case of ordinary penal laws, like the Anti-Plunder Law, whose
deterrent effect is precisely a reason for their enactment. Hence, we declared in this case
that "the doctrines of strict scrutiny, overbreadth and vagueness are analytical tools for
testing 'on their faces' statutes in free speech cases or, as they are called in American law,
First Amendment cases [and therefore] cannot be made to do service when what is
involved is a criminal statute."

Petitioner's counsel disagrees and says that "this holding goes against the grain of
American jurisprudence" and that in fact "American law reports are full of decisions where
either the overbreadth or vagueness doctrines have been used to invalidate non-free
speech statutes on their faces." Petitioner cites a hodgepodge of cases decided by the U.S.
Supreme Court to support his contention.

Before discussing these cases, let it be clearly stated that, when we said that "the doctrines
of strict scrutiny, overbreadth and vagueness are analytical tools for testing 'on their faces'
statutes in free speech cases or, as they are called in American law, First Amendment cases
[and therefore] cannot be made to do service when what is involved is a criminal statute,"
we did not mean to suggest that the doctrines do not apply to criminal statutes at all. They
do, although they do not justify a facial challenge, but only an as-applied challenge, to those
statutes. Parties can only challenge such provisions of the statutes as applied to them.
Neither did we mean to suggest that the doctrines justify facial challenges only in free
speech or First Amendment cases.To be sure, they also justify facial challenges in cases
under the Due Process and Equal Protection Clauses of the Constitution with respect to so-
called "fundamental rights." In short, a facial challenge, as distinguished from as-applied
challenge, may be made on the ground that, because of vagueness or overbreadth, a statute
has a chilling effect on freedom of speech or religion or other fundamental rights. But the
doctrines cannot be invoked to justify a facial challenge to statute where no interest of
speech or religion or fundamental freedom is involved, as when what is being enforced is
an ordinary criminal statute like the Anti-Plunder law.

Given this rule it will be seen that the cases cited by petitioner's counsel to support his
claim that "American reports are full of decisions where either the overbreadth or
vagueness doctrines have been used to invalidate non-free speech statutes of their faces"
do not apply to the present case. Brown v. Louisiana[7]cralaw and Shuttlesworth v.
Birmingham,[8]cralaw which counsel cites, although arising from prosecutions for breach
of the peace, actually involved free speech rights or expressive activities, consisting of the
right to hold protests and demonstrations in public places. They are not cases in which
ordinary criminal statutes were declared void on their faces.Indeed, as stated in Broaderick
v. Oklahoma,[9]cralaw in explaining the breach-of-peace cases,

the plain import of our cases is, at the very least, the facial overbreadth adjudications an
exception to our traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it forbids the State to
sanction moves from "pure speech" towards conduct and that conduct - even if expressive -
falls within the scope of otherwise valid criminal laws that reflect legitimate state interests
in maintaining comprehensive controls over harmful, constitutionally, unprotected
conduct. Although such laws, if too broadly worded, may deter protected speech to some
unknown extent, there comes a point where that effect - at best a prediction - cannot, with
confidence, justify invalidating a statute on its face and so prohibiting a State from
enforcing the statute against conduct that is admittedly within its power to proscribe. . . .

On the other hand, the other cases cited by counsel, in which a facial examination of
statutes was undertaken, involved rights deemed "fundamental" under the Due Process
and Equal Protection Clauses of the U.S. Constitution, such as the right of
privacy,[10]cralaw voting rights,[11]cralaw the right to travel,[12]cralaw and
federalisms.[13]cralaw At first glance, these rights appear to be of universal value. An
examination of their content will show, however, that they are not. For example, the
concept of privacy as a fundamental right has been interpreted in American law to include
the right to use contraceptive devices,[14]cralaw the right to have an abortion,[15]cralaw
the right to marry,[16]cralaw and the right to die.[17]cralaw Other "rights" are being
pressed for recognition in the name of privacy, namely, the "right" to engage in homosexual
sodomy[18]cralaw and the "right" to physician-assisted suicide.[19]cralaw It is obvious
that such "rights" cannot exist under our laws. It cannot be contended that statutes
prohibiting the exercise of such "right" are presumed void because the rights involved are
"fundamental." These were declared "rights" by the U.S. Supreme Court in the course of
what has come to be called "fundamental rights" adjudications, determining what interests
are implicit in the American "scheme of ordered liberty" for the purpose of extending such
"rights" to the several states. It is obvious that such "rights" are not necessarily also part of
the liberty guaranteed on the Due Process Clause of our Constitution.

Thus, the cases upholding these "rights," which are cited by petitioner's counsel as
instances in which "non-free" speech statutes" were declared void on their faces, have no
application to the case at bar and do not support his plea for a facial review of the Anti-
Plunder Law. Only the failure to see the cases in the context in which they were decided can
account for petitioner's claim that, contrary to our ruling in this case, there are instances in
American law in which the vagueness and overbreadth doctrines were used to invalidate
on their faces even "non-free speech" statutes. Indeed, the right to have an abortion, which
is derived from the right of privacy in American law, is in fat so repugnant to our
Constitution as to be the very antithesis of what is fundamental to our people.[20]cralaw

On the other hand, Florida Prepaid Postsecondary Education Expense Board v. College
Savings Bank,[21]cralaw which petitioner sites as a non-First Amendment case involving a
facial examination of a statute, involves an issue of federalism, also considered
"fundamental" in American constitutional law. It will suffice to say that federalism
principles simply do not have any application in this country.

In the case of the Anti-Plunder Law, outside the traditional rights of persons accused in
criminal cases, there are no interests of speech or other fundamental rights affected by the
enforcement of the law and, therefore, there is no basis for departing from the general rule
that a party can challenge a statute only as applied to him.

The excerpts from other cases cited in petitioner's Motion for Reconsideration under the
headings "Price-fixing and anti-trust legislation," "Statute on employment," "Statute on
taxation," "Statute on common carriers," "Statute on waste," and "Statute on procedure" no
not address the question whether in the case of ordinary criminal statutes allegations of
vagueness and overbreadth justify a facial review of statutes. For the question in the case at
bar, it cannot be overemphasized, is not whither the vagueness and overbreadth doctrines
apply to facial challenges to criminal statutes. The question rather is whether the mere
assertion that a penal statute is vague or overbroad - without a showing that interests of
speech (or, it may be added, freedom of religion) or other fundamental rights are infringed-
triggers a facial review of the said statutes, using strict scrutiny as the standard of judicial
review. We hold it does not.

As the Anti-Plunder Law implicates neither free speech nor freedom of religion or other
fundamental rights of petitioner, a facial review of the law cannot be required nor the
burden of proving its validity placed on the State. Mere assertions that it is vague or
overbroad only justify an "as-applied" review of its challenged-provisions. As stated in a
leading casebook on constitutional law: "Vagueness challenges in First Amendment
context, like overbreadth challenges, typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated 'as applied' to a particular
defendant."[22]cralaw

C. Cases Cited in the Decision in this Case Reflect the Current State of the Law

Several decisions of the U.S. Supreme Court are cited for the holding in this case that
petitioner cannot question the validity of those provisions of the Anti-Plunder Law under
which he is not being prosecuted. Petitioner disputes the continuing validity of these
decisions. He claims that they have been either ignored or overruled in subsequent
decisions of the American Supreme Court. Petitioner singles out two cases cited in the
decision in this case.

The first is United States v. Salerno[23]cralaw in which, through Chief Justice Rehnquist, it
was held:

A facial challenge to a legislative act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under
which the Act would be valid. The fact that the Bail Reform Act might operate
unconstitutionally under some conceivable set of circumstances is insufficient to render it
wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment.

Quoting Justice Stevens, petitioner says that the statement in Salerno that "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First amendment" is
a mere "rhetorical flourish" and, for that reason, "has been properly ignored" in other
cases.

This is not correct. Justice Stevens' statement was actually made in a memorandum opinion
denying certiorari in an abortion case.[24]cralaw The full text of his statement reads:

The Court's opinion in United States v. Salerno, 481 US 739, 95 L E 2d 697, 107 S Ct 2095
(1987), correctly summarized a long established principle of our jurisprudence: "The fact
that [a legislative] Act might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid." Id., at 745, 95 L Ed 2d 697, 107 S
Ct 2095.

Unfortunately, the preceding sentence in the Salerno opinion went well beyond that
principle. That sentence opens Part II of the opinion with a rhetorical flourish, stating that a
facial challenge must fail unless there is "no set of circumstances" in which the statute
could be validly applied. Ibid.; post, at 1178, 134 L Ed 2d, at 681-682.That statement was
unsupported by citation or precedent. It was also unnecessary to the holding in the case,
for the Court effectively held that the statute at issue would be constitutional as applied in a
large fraction of cases. See 481 US, at 749-750, 95 L Ed 2d 697, 107 S Ct 2095.

Thus, what Justice Stevens referred to as a mere "rhetorical flourish" is not the statement in
Salerno that "we have not recognized an 'overbreadth' doctrine outside the limited context
of the First Amendment" on which this Court relied for its decision in this case. This part of
the ruling in that case has not been modified, much less overruled, in any subsequent
decisions of the U.S. Supreme Court, and it fully supports the ruling in the case at bar that
the vagueness and overbreadth doctrines justifying facial examination of statutes
infringing interests of speech or freedom of religion or other fundamental rights do not
apply to penal statutes like the Anti-Plunder Law.

What Justice Stevens stated was a mere "rhetorical flourish" is the statement that "[a] facial
challenge to a legislative act is, of course, the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the Act
would be valid." In his view, the "no-set-of-circumstances" test embodied in this statement
in the Salerno case has been "replaced" by the ruling in Planned Parenthood v.
Casey[25]cralaw which held that a statute will be held facially invalid if "in a large fraction
of cases in which [it] is relevant, it will operate as a substantial obstacle to a woman's
choice to undergo an abortion." With this part of the Salerno ruling (or dictum as
petitioner's counsel calls it) we are not concerned in this case, because it is irrelevant. Even
if it was later "replaced" by the decision in Casey, this fact is of no moment to this case.

Indeed, Salerno could not really have been "replaced" by Casey because the two cases
involved fundamentally different interests. Casey involved abortion for which a different
test of overbreadth for determining the validity of a statute on its face was formulated.
Salerno is a non-First Amendment and a non-fundamental rights case. It involved a
challenge to the Bail Reform Act of 1984 which permits a federal court to detain an arrestee
without bail pending trial on the ground of the danger posed by the arrestee to the
community. It was contended in that case that the denial of bail on the basis of the court's
determination that the arrestee was likely to commit future crimes was a denial of due
process. The American Court rejected the facial challenge to the law and it was in that
context that it ruled that "[t]he fact that the Bail Reform Act might operate
unconstitutionally under some conceivable set of circumstances is insufficient to render it
wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." Salerno has greater relevance to this case than Casey.

Nor has Salerno been ignored or dismissed as petitioner claims. Surely, in the vast
literature on the subject, it has its detractors. But so does it have its defenders. In point of
fact, the ruling has been affirmed in at least two cases: Reno v. Flores[26]cralaw and Rust v.
Sullivan.[27]cralaw

In contrast, Casey involved abortion for which a different test of overbreadth for
determining the validity of a statute on its face was formulated. That case involved a
Pennsylvania statute which, among other things, required any married woman seeking an
abortion to submit a statement that she has notified her husband of her decision to have an
abortion. As previously noted, the right to an abortion is considered in American
jurisprudence as a "fundamental right" justifying a facial review of a statute. The pertinent
provision of the Pennsylvania statute was invalidated on the ground that it operated in "a
large fraction of cases" as a "substantial obstacle" to a woman's fundamental right to have
an abortion. A new standard of review in cases involving abortion as a fundamental right
was thus adopted.

The second case cited in the decision in this case, which petitioner's counsel claims has
already been overruled, is Broaderick v. Oklahoma[28]cralaw which held:

Embedded in the traditional rules governing constitutional adjudication is the principle

that a person to whom a statute may constitutionally be applied will not be heard to
challenge that statute on the ground that it may conceivably be applied unconstitutionally
to others, in other situations not before the Court.

Petitioner says that the "substantial overbreadth" test laid down in this case has likewise
been superseded by the Casey test insofar as Broaderick limited facial overbreadth
challenges to First Amendment rights.

It must be emphasized that the question in the case at bar is not whether the overbreadth
test for facial invalidity in First Amendment and fundamental rights cases is the
"substantial overbreadth" test in Broaderick or the test of "undue burden in a large fraction
of cases" in Casey. The question in this case is whether the overbreadth and vagueness
doctrines in First Amendment and fundamental rights cases, which call for the facial
invalidation of a statute, applies to penal statutes. Broaderick categorically stated that it
does not: "Claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words." [29]cralaw Overbreadth or
vagueness m an ordinary criminal law can justify only the invalidation of the law "as
applied" to the accused. The continuing validity of Broaderick's "substantial overbreadth"
doctrine was affirmed recently in National Endowment for the Arts v. Finley, [30]cralaw
the opinion in which was written by Justice O'Connor, who also wrote the plurality opinion
in Planned Parenthood v. Casey. For Broaderick and Casey really involved different facts, as
pointed out above.

Thus, vagueness and overbreadth claims in non-First Amendment cases can succeed only if
it is shown that "no set of circumstances exists under which the Act would be valid."
Otherwise, if the provision under which an accused is being prosecuted is valid, the statute
will not be declared void simply because its other provisions, not applicable to the case, are
void for being vague or overbroad. On the other hand, in First Amendment or fundamental
rights cases, either "substantial overbreadth" or "undue burden in a large fraction of cases"
as the case may be is all that is required to justify a facial challenge to a statute.

The Salerno rule is summarized in a law review article, thus:

The basic Supreme Court doctrines concerning "facial" and "as-applied" challenges are set
forth in the Salerno case and run essentially, as follows: there are two types of
constitutional challenges, "as-applied" challenges and "facial" challenges. As-applied
challenges are the standard kind of constitutional challenge, while facial challenges are
unusual. A facial challenge to a rule should succeed only if (1) there exists no set of
circumstances under which the rule could be constitutionally applied, or (2) the facial
invalidation of the rule is warranted by the "overbreadth" doctrine, a special doctrine
limited to the First Amendment. [31]cralaw

A law review note restates the Salerno rule in somewhat the same way as follows:

Salerno created - or perhaps merely recognized - a bifurcated structure for evaluating facial
attacks. On the first tier lie cases involving First Amendments rights, in which the
overbreadth standard controls facial attacks. Under the First Amendment overbreadth
doctrine, facial challenges succeed upon proof that a questioned statute is capable of a
"substantial number" of unconstitutional applications. On the second tier rest all other
facial attacks, and they are governed by the no-set-of-circumstances test. [32]cralaw

Finally, it should be stated here that the American precedents are being cited not because
of their weight as precedents (for they are not binding on this Court) but because of the
force of their reasoning and only because they are either cited to us in petitioner's
pleadings or their discussion is impelled by arguments advanced by petitioner. That these
cases have not been later reiterated by the U.S. Supreme Court or that, as counsel for
petitioner claims, they have been replaced by newer rulings is of secondary interest so long
as they have not been proven erroneous.

D.Provisions of the Anti-Plunder Law under which Petitioner is Being Prosecuted

Not Affected by Other Parts Being Challenged

It is nevertheless argued that, if subparagraphs (3), (4), (5), and (6) of 1(d) are void
because they are vague and/or overbroad, this circumstance would be sufficient to render
the entire Anti-Plunder Law void. In such event, there will be no law under which
petitioner can be prosecuted.

It is true that a person cannot be prosecuted except pursuant to a valid law. But the
provisions of the Anti-Plunder Law are severable and the invalidity of its other provisions -
assuming this to be the case - cannot affect the validity of the provisions under which
petitioner is being prosecuted. For one, the Anti-Plunder Act provides in 7 that "if any
provisions of [the] Act or the "application thereof to any person or circumstances is held
invalid, the remaining provisions of this Act and the application of such provisions to other
persons or circumstances shall be affected thereby." For another, while it is true that a
separability clause in a statute creates only a presumption, that presumption has not been
disputed in the case of the Anti-Plunder Law. The test is whether the statute can exist
independently of the invalid parts. [33]cralaw In the case of the Anti-Plunder Law, the
"overt or criminal acts" enumerated in 1,subparagraphs (1) to (6) are actually
independent means by which the crime of plunder may be committed. Invalidation of any
of these subparagraphs will not affect the validity of the other provisions carrying out the
legislative purpose to punish those guilty of amassing ill-gotten wealth in the total amount
of at least P50 million.
Nor does strict scrutiny, as a standard of review in free speech and fundamental rights
cases, apply to the Anti-Plunder Law and call for a determination of the validity of all its
provisions on their faces. As any criminal statute, the law in question must be strictly
construed in specific instances in which its provisions are applied. Any doubt as to its
application must be resolved in favor of the accused and against the State. This is not the
same, however, as saying that strict scrutiny should be applied in determining the validity
of the law. Application of the strict scrutiny standard to the Anti-Plunder Law would place
on the government the. burden of demonstrating a compelling reason for its enactment,
when the presumption is that every statute is valid and the burden of showing its invalidity
is on the accused.[34]cralaw The consequence of applying strict scrutiny to criminal
statutes and reversing the presumption of constitutionality, when no interest of freedom of
speech or religion or any other fundamental right is implicated by its enforcement, is
disastrous to our system of criminal law. As Professor Gunther has pointed out, strict
scrutiny is "strict" in theory and "fatal" in fact. [35]cralaw

II.ON PETITIONER'S CLAIM THAT, AS APPLIED TO HIM,

THEANTI-PLUNDER LAW IS UNCONSTITUTIONAL

Petitioner argues that, as applied to him, the statute is vague and overbroad, that it
constitutes a denial of the equal protection of the laws, and that it inflicts a cruel or unusual
punishment.

A.Allegations of Vagueness and Overbreadth Merely

Repetitions of Arguments Already Passed Upon

Petitioner repeats arguments already made in his Petitions and Memorandum that the
provisions of the Anti-Plunder Law as applied to him are vague and overbroad. As in those
pleadings, very little is given in petitioner's Motion for Reconsideration to a discussion of
the invalidity of 1(d), subparagraphs (1) and (2), as applied to him. The bulk of the Motion
for Reconsideration is devoted to a discussion why the other subparagraphs, namely,
subparagraphs (3), (4), (5), and (6) of 1(d), are void and why petitioner should be allowed
to raise their alleged invalidity as a defense. These subparagraphs of 1(d) deal with the
establishment of, monopolies and combinations, the implementation of a presidential
decree to favor particular individuals, the acquisition of ownership of stocks in a business
enterprise, and the illegal or fraudulent disposition of government property. Petitioner is
not being prosecuted for their violations but for violation of 1(d), subparagraph (1), on
plunder through misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury and for violation of 1(d), subparagraph (2), on plunder
committed by receiving commission, gift, share, percentage, kickbacks, or any other form of
pecuniary benefit while the accused is in office. As this is not a case which involves the
exercise of freedom of speech or religion or any other fundamental right, a consideration of
the facial validity of subparagraphs (3), (4), (5), and (6) of 1(d) is clearly uncalled for.

With respect to the validity of subparagraphs (1) and (2) of 1(d), it will suffice to refer to
the discussion in my separate opinion on why they are neither vague nor overbroad, as no
new arguments are presented in the Motion for Reconsideration. It only remains to say
here That in concluding that these provisions are not vague, the Court did not rely simply
on the allegations of the Amended Information against petitioner. My separate opinion in
the main case did not refer to the Amended Information to derive the meaning of 1(d),
subparagraphs (1) and (2). The Amended Information was quoted only to show that the
prosecution against petitioner in this case is for violation of 2, in relation to 1(d),
subparagraphs (1) and (2) of R.A. No. 7080. Instead, the meaning of these provisions is
explained by reference to the discussions in Congress on S. No. 733 and to the purpose of
the law. While the main opinion and my separate opinion made references to the Amended
Information, their main reliance was actually on the usual aids in statutory construction.
For no more than statutory interpretation is involved in understanding the Anti-Plunder
Law.

The foregoing discussion should dispose of petitioner's allegation that the construction of
the statute in this case amounts to judicial legislation by the Court. It is not as if the Court
plucked their meaning from thin air, because in reality their meaning is discoverable from a
consideration of the legislative history of the law, particularly the abuses of presidential
power which led to its enactment. No drastic surgery of the statute was needed to ascertain
the meaning and purpose of Congress in enacting that law. As we have ruled in another
case, [36]cralaw when a statute is not "perfectly vague," such that its meaning can be
ascertained by reference to legislative and other sources, it may be saved by proper
construction.

B.Statute Neither Violates the Equal Protection Clause

Nor Inflicts a Cruel or Unusual Punishment

It is contended that the Anti-Plunder Law violates the due process and equal protection
guarantees of the Constitution. It is contended that the penalty for the predicate crimes of
plunder, when considered separately, are light compared to the penalty (reclusion
perpetua to death) imposed when these crimes are treated as a single complex crime of
plunder under R.A. No. 7080. In that sense, it is argued, the Anti-Plunder Law not only
denies the equal protection of the laws but also imposes a cruel and unusual punishment.

With respect to the first point, suffice it to say that when the predicate crimes are
committed in combination or series by one who, taking advantage of his office, amasses
wealth in the amount of at least P50 million, the predicate crimes take on a very different
complexion. They amount to a systematic looting of public wealth. The predicate crimes
become plunder. As the explanatory note accompanying S. No. 733 stated:

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 the 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 influences of power.

The "complexing" of crimes and the imposition of a heavier penalty for their violations are
familiar techniques employed in the law, e.g., the Revised Penal Code, to reflect Congress's
concerns in dealing with serious offenses. That is why this Court held that plunder is a
malum in se because it is not only morally reprehensible but also stigmatizing in its effect.
For example, robbery with violence against or intimidation of persons under Art. 294, par.
5 of the Revised Penal Code is punished with prision correccional in its maximum period (4
years, 2 months, and 1 day) to prision mayor in its medium period (6 years and 1 day td 8
years). Homicide under Art. 249 of the same Code is punished with reclusion temporal (12
years and 1 day to 20 years). But when the two crimes are combined into the special
complex crime of robbery with homicide because the two crimes are committed on the
same occasion, the Code provides the heavier penalty of reclusion perpetua to death for its
commission. Again, the penalty for simple rape under Art. 266-B of the Revised Penal Code
is reclusion perpetua, while that, for homicide under Art. 249 is reclusion temporal (12
years and 1 day to 20 years). When the two crimes are combined because they are
committed on the same occasion, the two are treated as one special complex crime of rape
with homicide and punished with a heavier penalty of reclusion perpetua to death.
Petitioner cannot therefore compare the penalty for plunder (reclusion perpetua to death)
with the penalties for special complex crimes such as malversation of public funds or
property,[37]cralaw bribery,[38]cralaw frauds and illegal exactions,[39]cralaw and
monopolies and combinations in restraint of trade,[40]cralaw for which the penalties are
merely correctional. If a comparison is needed, it should be to the penalties for, say,
qualified piracy,[41]cralaw qualified bribery,[42]cralaw or robbery with violence against
or intimidation of persons,[43]cralaw for which the penalty is similar.

Qualified piracy, qualified bribery, or robbery with violence against or intimidation of

persons, along with plunder, are considered heinous offenses in R.A. No. 7659. As this Court
said, referring to heinous crimes in People v. Echagaray: [44]cralaw

The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal
and utterly dehumanized as to completely disrupt the normal course of his or her growth
as a human being. . . .Seen in this light, the capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim or the victim is raped, tortured, or
subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of. other crimes; as well
as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the
victim is detained for more than three days or serious physical injuries were inflicted on
the victim or threats to kill him were made or the victim is a minor, robbery with homicide,
rape or intentional mutilation, destructive arson, and carnapping where the owner, driver
or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political and
economic context in which the state finds itself to be struggling to develop and provide for
its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that
bankrupted the government and impoverished the population, the Philippine Government
must muster the political will to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the structures of society and the
psyche of the populace. [With the government] terribly lacking the money to provide even
the most basic services to its people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very existence of government, and in
turn, the very survival of the people it governs over. Viewed in this context, no less heinous
are the effects and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials, employees or officers,
that their perpetrators must not be allowed to cause further destruction and damage to
society.

Moreover, R.A. No. 7659, which imposes the penalty of reclusion perpetua to death for
plunder and other crimes considered heinous, is based on a legislative finding. It is,
therefore, presumed valid, and this presumption cannot be overcome except by "some
factual foundation of record" to the contrary.[45]cralaw

III.ON THE ADVERSE CONSEQUENCES OF ADOPTING PETITIONER'S THEORY

Adoption of petitioner's theory that the Anti-Plunder Law must be judged on its face, using
strict scrutiny[46]cralaw as the standard of review, has serious adverse consequences to
our legal system. In the first place, a line-by-line strict scrutiny of the provisions of a
criminal statute like the Anti-Plunder Law, when no interests of speech or fundamental
rights are involved, will severely impair the State's ability to deal with crime. It will enable
an accused, who is otherwise guilty, to escape condign and merited punishment simply by
showing that, as applied to others, the statute is vague and/or overbroad, even though as to
him it is not.It will enable the defense in a criminal case to turn the tables on the
prosecution and put the latter on the defensive by imposing on it the burden of
justification. Even now, petitioner is already claiming that it is the Anti-Plunder Law, and
not he, which is On trial. It is not only the sovereign prerogative of the State to maintain
order and to punish those who violate the criminal laws designed for this purpose. The
exercise of this power is likewise its duty to enable the people to enjoy their
freedoms.[47]cralaw

In the second place, by allowing petitioner to question parts of the law even though he is
not being prosecuted under them, petitioner will in effect be allowed to assert the rights of
third parties not before the Court.Any adverse ruling on his constitutional challenge will
foreclose the right of third parties to raise the same question. If it be argued that assertion
of the invalidity of the other provisions of the Anti-Plunder Law is being made only for the
purpose of showing that the law is invalid and petitioner cannot be prosecuted under an
invalid law, the flaw in the argument becomes apparent, for then any pronouncement we
make on the matter will be merely advisory.It is beyond the power of courts in our
constitutional system to render advisory opinions. As we have held, "courts do not sit to
adjudicate mere academic questions to satisfy scholarly interest therein, however solid the
problem may be."[48]cralaw
In the third place, the exercise of the power of judicial review is premised on the existence
of an actual case or controversy.[49]cralaw No one has written more extensively on the
need for an actual case or controversy as a desideratum of sound constitutional
adjudication than Alexander M. Bickel.With grace and power, Professor Bickel wrote:

One of the chief faculties of the judiciary, which is lacking in the legislature and which fits
the courts for the function of evolving and applying constitutional principles, is that the
judgment of courts can come later, after the hopes and prophecies expressed in legislation
have been tested in the actual workings of our society; the judgment of courts may be had,
in concrete cases that exemplify the actual consequences of legislative or executive actions.
Thus is the Court enabled to prove its principles as it evolves them. The concepts of
"standing" and "case and controversy" tend to ensure this, and there are sound reasons,
grounded not only in theory but in the judicial experience of centuries, here and elsewhere,
for believing that the hard, confining, and yet enlarging context of a real controversy leads
to sounder and more enduring judgments. "Every tendency to deal with constitutional
questions abstractly," Professor Felix Frankfurter wrote a generation ago, "to formulate
them in terms of barren legal questions, leads to dialectics, to sterile conclusions unrelated
to actualities."

It may be added that the opportunity to relate a legislative policy to the flesh-and-blood
facts of an actual case, and thus to see and portray it from a very different vantage point, to
observe and describe in being what the legislature mayor may not have foreseen as
probable - this opportunity as much as, or more than, anything else enables the Court to
appeal to the nation's second thought. Moreover, the "standing" and "case" requirement
creates a time lag between legislation and adjudication, as well as shifting the line of vision.
Hence it cushions the clash between the Court and any given legislative majority and
strengthens the Court's hand in gaining acceptance for its principles. The validity of this
argument, it may be ventured, would soon be apparent if it were customary to bring
statutes to court, as it were in the very flush of enactment, while the feelings that produced
them were at their highest pitch, and while the policies they embodied had as yet suffered
none of the dents necessarily made, in another of Professor Frankfurter's phrases, by the
"impact of actuality." . . .[50]cralaw

FOR THE FOREGOING REASONS, I VOTE TO DENY THE MOTION FOR RECONSIDERATION
FILED BY PETITIONER.

Very truly yours,

LUZVIMINDA D. PUNO
G.R. No. 148560 November 19,2001

Lessons Applicable:

Consti Overbreadth doctrine, void-for-vagueness doctrine

Crim Law 1- mala in se

Crim pro proof beyond reasonable doubt

Laws Applicable: Art. 3 RPC

FACTS:

An information is filed against former President Joseph Ejercito Estrada a.k.a. 'Asiong
Salonga' and '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 under RA 7080 (An Act Defining and Penalizing the Crime of Plunder)

June, 1998 to January 2001: Estrada 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 willfully,
unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly,
ill-gotten wealth of P4,097,804,173.17 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

Received P545,000,000.00 in the form of gift, share, percentage, kickback or any form of
pecuniary benefit, by himself and/or in connection with co-accused 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

Diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his

or their personal gain and benefit, public funds of P130,000,000.00, more or less,
representing a portion of P200,000,000.00) tobacco excise tax share allocated for the
province of Ilocos 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 Ramos Tan or Mr. Uy,
Jane Doe a.k.a. Delia Rajas, and other John Does & Jane Does

For His Personal Gain And Benefit, The Government Service Insurance System (GSIS) To
Purchase 351,878,000 Shares Of Stocks, More Or Less, And The Social Security System
(SSS), 329,855,000 Shares Of Stock, More Or Less, Of The Belle Corporation worth
P1,102,965,607.50 and P744,612,450.00 respectively 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 which became part of the deposit
in the equitable-pci bank under the account name Jose Velarde

by unjustly enriching himself from commissions, gifts, shares, percentages, kickbacks, or

any form of pecuniary benefits, in connivance with John Does and Jane Does,
P3,233,104,173.17 and depositing the same under his account name Jose Velarde at the
Equitable-Pci Bank

Estrada questions the constitutionality of the Plunder Law since for him:

1. it suffers from the vice of vagueness

2. it dispenses with the "reasonable doubt" standard in criminal prosecutions

3. it abolishes the element of mens rea in crimes already punishable under The Revised
Penal Code

April 4, 2001: Office of the Ombudsman filed before the Sandiganbayan 8 separate
Informations, docketed as:

1. Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659

2. Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3,
par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively

3. Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct
and Ethical Standards for Public Officials and Employees)

4. Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code)

5. Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085)

April 11, 2001: Estrada filed an Omnibus Motion on the grounds of lack of preliminary
investigation, reconsideration/reinvestigation of offenses and opportunity to prove lack of
probable cause. - Denied

April 25, 2001: Sandiganbayan issued a Resolution in Crim. Case No. 26558 finding
that a probable cause for the offense of plunder exists to justify the issuance of warrants for
the arrest of the accused

June 14, 2001: Estrada moved to quash the Information in Crim. Case No. 26558 on
the ground that the facts alleged therein did NOT constitute an indictable offense since the
law on which it was based was unconstitutional for vagueness and that the Amended
Information for Plunder charged more than 1 offense Denied

Estrada filed a petition for certiorari are:

1. The Plunder Law is unconstitutional for being vague

2. The Plunder Law requires less evidence for proving the predicate crimes of plunder
and therefore violates the rights of the accused to due process

3. Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is

within the power of Congress to so classify it

ISSUES:

1. W/N the Plunder Law is constitutional (consti1)

2. W/N the Plunder Law dispenses with the "reasonable doubt" standard in criminal
prosecutions (crim pro)

3. W/N the Plunder Law is a malum prohibitum (crim law 1)

HELD: Petition is dismissed. Plunder Law is constitutional.

1. YES

Miserably failed in the instant case to discharge his burden and overcome the
presumption of constitutionality of the Plunder Law

Plunder Law contains ascertainable standards and well-defined parameters which

would enable the accused to determine the nature of his violation.

Combination- at least two (2) acts falling under different categories of enumeration

series - must be two (2) or more overt or criminal acts falling under the same
category of enumeration

pattern - at least a combination or series of overt or criminal acts enumerated in

subsections (1) to (6) of Sec. 1 (d)

Void-For-Vagueness Doctrine - a statute which either forbids or requires the doing of

an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due process of law

o The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice

o can only be invoked against that specie of legislation that is utterly vague on its face, i.e.,
that which cannot be clarified either by a saving clause or by construction
o a statute or act may be said to be vague when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ in its
application.

o the statute is repugnant to the Constitution in 2 respects:

a. it violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of what conduct to avoid

b. it leaves law enforcers unbridled discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government muscle

o As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face
only if it is vague in all its possible applications

Overbreadth Doctrine - a governmental purpose may NOT be achieved by means

which sweep unnecessarily broadly and thereby invade the area of protected freedoms

o overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech.

Criminal statutes have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases.

2. NO.

The use of the "reasonable doubt" standard is indispensable to command the respect
and confidence of the community in the application of criminal law.

o has acquired such exalted stature in the realm of constitutional law as it gives life to the
Due Process Clause which protects the accused against conviction except upon proof
beyond reasonable doubt of every fact necessary to constitute the crime with which he is
charged

What the prosecution needs to prove beyond reasonable doubt is only a number of
acts sufficient to form a combination or series which would constitute a pattern and
involving an amount of at least P50,000,000.00. There is no need to prove each and every
other act alleged in the Information to have been committed by the accused in furtherance
of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth
o Pattern is merely a by-product of the proof of the predicate acts. This conclusion is
consistent with reason and common sense. There would be no other explanation for a
combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a
scheme or conspiracy to amass, accumulate or acquire ill gotten wealth."

3. NO

plunder is a malum in se which requires proof of criminal intent (mens rea)

o 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.

o 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.
indicates quite clearly that mens rea is an element of plunder since the degree of
responsibility of the offender is determined by his criminal intent

o The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies
that it is a malum in se. For when the acts punished are inherently immoral or inherently
wrong, they are mala in se and it does not matter that such acts are punished in a special
law, especially since in the case of plunder the predicate crimes are mainly mala in se