It was error to convict accused of plunder under an Information that merely alleges his “taking undue advantage of his official position”

The Amended Information in this case charged the accused Pres. Estrada with violation of R.A. 7080 as follows:

AMENDED INFORMATION

The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. “ASIONG SALONGA” and a.k.a. “JOSE VELARDE”, together with Jose ‘Jinggoy’ Estrada, Charlie “Atong” Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, did then and there willfully, 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, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting directly or indirectly on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT BY HIMSELF AND/OR in connivance with co-accused CHARLIE ‘ATONG’ ANG, JOSE ‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING.

No proof that accused tolerated illegal gambling

Since the allegation was that the alleged receipt of jueteng money was “in consideration of toleration or protection of illegal gambling,” there was a need to prove the same since “in toleration or protection of illegal gambling” is an element of the crime of plunder such that without it the crime could not be committed.

Yet nowhere in the lengthy presentation of the Prosecution is there any evidence of what the Amended Information alleges as “in consideration of toleration or protection of illegal gambling.” The Decision of the Honorable Court thus does not contain any finding that accused Pres. Estrada tolerated or protected any gambling activity. In fact, both the Prosecution and the Defense evidence show that Pres. Estrada had wanted to eradicate jueteng by replacing it with Bingo 2-Balls. Bingo 2-Balls, which under the proposal, would have been legal gambling conducted by the PAGCOR.

Assuming , only for the sake of argument, that the evidence presented by the prosecution is worthy of credence in some of its parts, the offense held to have been proven by the Honorable Court, which is receiving part of jueteng proceeds from Chavit Singson, is not included in the charge of plunder. In other words, there is a variance between the offense charged, i.e., bribery, and the offense proved, i.e., receiving jueteng proceeds.

The law against plunder specifies, as one of the means or schemes by which an accused amasses or accumulates ill-gotten wealth, “by receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks, or any other form of pecuniary benefit from any person or entity in connection with any government contract or project or by reason of the office of position of the public officer concerned.”³ With regard to the predicate subparagraph (a) in the Amended Information, there is no doubt that this subparagraph tries to make out a case for bribery. That explains why the subparagraph (a) specifies that the money “from illegal gambling” was received or collected “in consideration of toleration or protection of illegal gambling”. And even the Justices of the Supreme Court who rendered written opinions in Jose Estrada v. Sandiganbayan⁴ say so. The majority opinion penned by Justice Puno refers to subparagraph (a) as “the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling”.⁵ The dissenting opinions likewise treat of subparagraph (a) as amounting to bribery.⁶

Yet nowhere in the Decision, and even in the Prosecution’s evidence, is there any hint of toleration or protection of jueteng as a consideration for all of the money collected by Chavit Singson. To the contrary, the witness testified that when he brought the money at first to General Lastimoso, the Chief of the PNP, the latter refused to receive the money.⁷ Clearly, the Prosecution failed to prove this element of the crime of plunder alleged in the Information.

Failure to allege in the Information the element of “by reason of his public office” precluded conviction for Plunder

The various Informations did not include any allegation of “by reason of his public office”. Certainly, in the Amended Information admitted on April 20, 2001, its par. (a) did not contain any such qualifying circumstance which would have upgraded the offense to plunder.