An epistemology of plunder

E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL

An epistemology of plunder
Sunday, 09 23, 2007

The protracted extent of the time (six years) it took to try Joseph Ejercito Estrada for the crime of plunder gave a cliffhanger of a tale that kept the nation in suspense. It was as if everyone - from the pilosopo at the sari-sari store down to effete know-it-all at the cocktail circuit - had been handed the unenviable gift of exhausting under analysis every conceivable twist and turn of the trial of this hugely popular president.

At the heels of the guilty verdict, even as the dailies are now bannering the possibility of either an amnesty or a pardon, commentators continue to look at the trial through a dizzying variety of consequential prisms. Some point out that it was a grievous mistake on the part of the ousted president to submit himself to the special division of the Sandiganbayan, knowing fully that he could not expect a fair trial. They stress the incontrovertible fact that all cases being rendered by special courts in other jurisdictions trying former leaders always result in a finding of the guilt of the accused.

The defense lawyers of Estrada rightly assert that the conviction was a political decision. The prosecutors agree, looking at it from the vantage point of the sitting president: secure a conviction, thereby confirming the ground for the power-grab in 2001. And on the part of many, it is the historical precedent upon which persons in power, Gloria Arroyo and her spouse included, can be reminded of the serious consequences of abuse of power.

Let us take a closer look, then, at the decision of the Sandiganbayan, not so much as to demonstrate its legal complexities, but as to substantiate a simple understanding of the crime of plunder.

Section 2 of Republic Act 7068 defines who might be guilty of the crime of plunder: “Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of covert criminal acts.”

Corollary to this is the Explanatory Note of Senate Bill 733, quoted in Estrada v. Sandiganbayan, 377 SCRA 538 (2002): “Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed through 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… 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 plunder of an entire nation resulting in material damage to the national economy…”

The Information in the case against Estrada alleged conspiracy in the commission of the crime. So, to find Estrada guilty, it is necessary to establish that he committed the crime in conspiracy with others who by themselves must be actually guilty of the same crime. From the definition of plunder in relation to the allegations in the Information, there is absolute necessity to prove (to secure a conviction) that the public officer - in this case, Estrada - was aided by others in the commission of the crime.

Conspiracy was not proved. Yet, Estrada was convicted by the Sandiganbayan on two counts out of the four, namely, on the alleged jueteng payoffs and the alleged Belle shares kickbacks.

From the decision, by his acts alone, by his lonesome self, Estrada committed the crime. This deviates completely from the language of the Information filed against him and his alleged co-conspirators. Worse, it deviates some more from the essence of the legal definition of plunder requiring “connivance with members of his family… subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth …”

Every good decision is based on law and reason. Reason dictates that conclusions are faulty if the cause-and-effect relationship does not exist.

In the conviction of Estrada, the decision was based on the litany of perjured witnesses and a multitude of questionable documents that eventually fell into the hands of a single person who could have been the principal accused himself but was not. Even the actual participants’ degree of participation and culpability, which might have been the cause itself, was never determined. The alleged other participants were never included in the indictment, or even though included were nevertheless acquitted. Not even a single jueteng lord was presented to substantiate the alleged payoffs. The alleged recipient (Estrada) of the alleged Belle shares kickbacks was the lone convict, while those who made the business decision to give the kickbacks are now scot-free.

Verily, how could a judgment of conviction be validly rendered, where the elements of the crime have not been proved, where the cause itself has not been established, or where the cause and the effect are treated separately and differently?

One other point. The crime must constitute plunder of an entire nation resulting in material damage to the national economy. Scour the entire 212 pages of the decision, yet you will find nothing in that voluminous judgment that this facet of the crime had been established.

These are all matters of logic and evidentiary appreciation, which should impact on the court of competent jurisdiction in the event that there is a re-examination of the case.

Estrada was quoted to have said after the promulgation of the decision: “This is just the beginning.” Politicians sympathetic to Estrada’s travails gave some sinister meaning to that declaration. But, for all we know, Estrada could have been referring as well to the inability of the Special Division of the Sandiganbayan to grasp the import of the crime it was trying for the first time, for which the Supreme Court may eventually find differently.

Deo volente.

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