[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 showing  that 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] 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]

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] 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] “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] 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]

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] and Shuttlesworth v. Birmingham,[8] 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] 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] voting rights,[11] the right to travel,[12] and federalisms.[13] 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] the right to have an abortion,[15] the right to marry,[16] and the right to die.[17] Other “rights” are being pressed for recognition in the name of privacy, namely, the “right” to engage in homosexual sodomy[18] and the “right” to physician-assisted suicide.[19] 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]

On the other hand, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,[21] 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]

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] 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]  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] 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] and Rust v. Sullivan.[27]

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] 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] 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] 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]

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]

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] 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] 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]

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

THE  ANTI-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] 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] bribery,[38] frauds and illegal exactions,[39] and monopolies and combinations in restraint of trade,[40] for which the penalties are merely correctional. If a comparison is needed, it should be to the penalties for, say, qualified piracy,[41] qualified bribery,[42] or robbery with violence against or intimidation of persons,[43] 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]

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]

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] 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]

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]

In the third place, the exercise of the power of judicial review is premised on the existence of an actual case or controversy.[49]  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]

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

Very truly yours,

LUZVIMINDA D. PUNO

Clerk of Court

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court