The phrase “by reason of his office or position” is not as broad as the phrase “in relation to the Office” which is used in the Anti-Graft and Corrupt Practices Act. But if the former is considered as having the same meaning as the latter, then the subject Information should at least have alleged what the law requires rather than the allegation of “taking undue advantage of his office” as:

The allegation of “taking advantage of his position” or “taking advantage of their respective positions” incorporated in the informations is not sufficient to bring the offense within the definition of “offenses committed in relation to public office.” Xxx.⁸

and to satisfy the requirement that the accused must be fully apprised of the crime he is accused of as having been committed in relation to this office, the

(i)ntimate relation between the offense charged and the discharge of official duties must be alleged in the information.⁹

Neither is the allegation that accused received jueteng money “in consideration of toleration or protect of illegal gambling” equivalent to an allegation that the alleged receipt of jueteng money was “by reason of his office.”

The phrase “in consideration of toleration or protection of illegal gambling” does not indicate a close intimacy between the discharge of Erap’s official duties as President and the commission of plunder by receipt of jueteng money since toleration or protection of illegal gambling could be done even by one who does not have a public office. Indeed, even the Catholic Church could be said to tolerate or protect illegal gambling if it keeps quiet about it instead of condemning it.

Since an offense is committed in relation to a public office only if it is essential to the crime such that it could not have been committed had the accused not held public office, the allegation that the receipt of jueteng money was “in consideration of toleration or protection of illegal gambling” therefore does not show that public office was an essential element to the crime of receiving jueteng money, since as already stated, other persons, whether in the public or private sector, could tolerate or protect illegal gambling and receive jueteng money in consideration therefor.

Some observers have said it is wrong to argue that taking private money is not plunder, and cite Sec. 1 (2) of R.A. No. 7080. But, as to the alleged jueteng money, assuming the source is proved, which is not conceded to be the case, the money must be alleged to have been received “by reason of the office or position of the public officer concerned”. Such qualifying circumstance was not alleged in the Information and cannot be proved qua such circumstance in the trial and taken against the accused in the judgment. If a poor public official gets so much a month from say his very rich mother, or godfather, classmates or circle, to sustain himself and his good projects, would there be plunder there? There must be something sinister.¹⁰

What was alleged was “in consideration of TOLERATION OR PROTECTION OF ILLEGAL GAMBLING”, on which there was also a total lack or paucity of evidence. But, such toleration or protection is not necessarily by reason of one’s public office, as practiced for instance by the Mafia as an example of a criminal syndicate or the village bully. Proof of an allegation cannot be dispensed with.

On the source of money, the alleged jueteng bets did not form part of the public treasury. The bettors in jueteng

should have testified that they bet a few pesos now and then, here and there. But, not a single bettor was presented. Some jueteng lords needed to testify but not one did so either. Governor Luis “Chavit” Singson cannot do it because he obviously has many sources of income, such as the excise tax money which led him into trouble with the Commission on Audit. When he was reported during the last elections to be giving a lot of money, of which judicial notice may be taken, no one can really tell what its source was, given his vast wealth, whose sources continue to be a source of awe and speculation, given his effort of redistribution of wealth during the elections when he lost badly (hardly enhancing his credibility in the eyes of the people).

Singson fought movant because precisely he did not want to lose his jueteng franchise. Who would believe today that he has lost it? The supposed possibility of losing said franchise he said led him to break with President Estrada, who he had supposedly thought had wanted him killed.

Jueteng was probably not what the lawmaker had in mind in talking of reclusion perpetua or death as the penalty for no one is scandalized by it otherwise it would not be so widespread today, more than ever. Graft or some such maybe but plunder? No one can take seriously any suggestion that the legislator ever intended that anyone linked to jueteng could be sentenced to death or life sentence in a society where big time gambling is sponsored by government. More so when movant is said to have gotten P200-M comprising spendable money and instead of spending it, put it in a bank for use by a corporation created and run by respected personages to pick young Muslims for scholarships. Was this the legislative intent?

Indeed, there has not been any condemnation or ostracism of the principal accused.¹¹

Therefore, accused Pres. Estrada cannot be convicted under this subparagraph (a), otherwise this would violate his right to be informed of the nature and cause of the accusation against him. An accused can be convicted of an offense only

when it is both charged and proved. If it is not charged although proved, or if it is not proved although charged, the accused cannot be convicted.¹² In other words, variance between allegation and proof cannot justify conviction for either the offense charged or the offense proved, unless either is included in the other.¹³

In the absence of evidence of toleration of gambling, the accused cannot be convicted of plunder for the other element of the offense, as alleged in the Information, i.e., “thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines,” cannot be met. This is because all of the funds collected by the principal witness allegedly from jueteng operators, as described here under subparagraph (a), are private funds, that is, proceeds from private persons operating gambling joints. Without any unlawful consideration, it is incongruous to speak of “expense and damage of the Filipino people and the Republic.”