mendoza e vs sb

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[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 thePhilippines. )Considering the motion for reconsideration filed by petitioner Joseph Ejercito Estrada and finding nothingtherein 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 theaforesaid 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 DeLeon, JJ. reiterate their votes to dismiss the petition in this case. In addition, Mendoza, J. filed a separateopinion (hereto attached) in which Davide, Jr., C.J., and Bellosillo, Melo, Puno, Vitug, Quisumbing, Buenaand De Leon, Jr., JJ., concur.Panganiban, J., reiterates his concurring opinion in the main case and holds that it is unnecessary to ruleon whether, as contended by petitioner, the Anti-Plunder Law should initially be presumed invalid forallegedly 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 theOmbudsman.Considering that petitioner's motions for reconsideration and for oral arguments have been denied withfinality, no further pleadings shall be entertained by this Court.

SEPARATE OPINIONMENDOZA, 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. Hemakes several arguments which can be reduced to two propositions. First, he contends that a facial reviewof the Anti-Plunder Law is required because (1) the law imposes the death penalty; (2) where a penal lawaffects fundamental rights, the law is presumed void and the government has the burden of showingthat itis valid; (3) the provisions of the Anti-Plunder Law are not severable so that, if any provision is void, thewhole statute is void, petitioner invoking in this connection the principle that no one can be prosecutedexcept under a valid law. Second, petitioner contends that (1) the provisions of the Anti-Plunder Law underwhich he is being prosecuted are vague and overbroad and their vagueness cannot be cured either byreference to the specific allegations of the Amended Information or by judicial construction and (2) theprovisions 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 PartIII, the implications of adopting petitioner's theory will be discussed.

I.ON PETITIONER'S CLAIM THAT THE ANTI-PLUMBER LAW MUST BEREVIEWED NOT ONLY AS APPLIED TO HIM BUT ALSO AS APPLIED

TO OTHERS TO DETERMINE THE VALIDITY OF THAT LAWThe 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 acrime 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 orseries" of any of the following overt or criminal acts:

1) Through misappropriation, conversion, misuse, or malversation of public funds orraids 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 inconnection with any government contract or project or by reason of the office or position



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of the public officer concerned;3) By the illegal or fraudulent conveyance or disposition of assets belonging to theNational Government or any of its subdivisions, agencies or instrumentalities orgovernment-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 futureemployment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or othercombinations and/or implementation of decrees and orders intended to benefit particularpersons or special interests; or6) By taking undue advantage or official position, authority, relationship, connectionor influence to unjustly enrich himself or themselves at the expense and to the damageand 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 whichpetitioner 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 governsthis case, is exemplified by Tan v. People [1]

crala w 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 "forestproducts" on the ground that the definition of the latter term is so broad that it includes even the merepossession of firewood, bark, honey, beeswax, grass, shrubs, and flowering plants. In rejecting the facialchallenge to the law, this Court held that as the accused were charged with violation of the part of theorder relating to the unauthorized possession of "lumber," they could not assail its other provisions. I t wasstated: "[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 EO277 is absolutely of no concern to petitioners. They are not asserting a legal right for which they areentitled to a judicial determination at this time. " [2]

crala w 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]crala w When an

accused is guilty of conduct that can constitutionally be prohibited and that the State has endeavored toprohibit, the State should be able to inflict its punishment. Such punishment violates no personal right ofthe accused. Accordingly, as the enforcement of the Anti-Plunder Law is not alleged to produce a chillingeffect on freedom of speech or religion or some "fundamental rights" to be presently discussed, only suchof its provisions can be challenged by petitioner as are sought to be applied to him.Petitioner cannotchallenge the entire statute on its face. A contrary rule would permit l itigation to turn on abstracthypothetical applications of a statute and disregard the wise limits placed on the judicial power by theConstitution. As Justice Laurel stressed in Angara v. Electoral Commission , [4]

cralaw "the power of judicial reviewis limited to actual cases and controversies . . .and limited further to the constitutional question raised orthe 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 astatute produces a chilling or inhibitory effect on the exercise of protected freedoms because of thevagueness or overbreadth of the provisions of such statute. Put in another way, claims of facial overbreadthalone, when invoked against ordinary criminal laws like the Anti-Plunder Law, are insufficient to move acourt to examine the statute on its face. It can only be reviewed as applied to the challenger'sconduct . [5]

crala w The same rule applies to claims of vagueness. I t is equally settled that "a plaintiff who engagesin some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to theconduct of others. " [6]

crala w 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 absentin the case of ordinary penal laws, like the Anti-Plunder Law, whose deterrent effect is precisely a reasonfor their enactment. Hence, we declared in this case that "the doctrines of strict scrutiny, overbreadth andvagueness are analytical tools for testing 'on their faces' statutes in free speech cases or, as they are calledin American law, First Amendment cases [and therefore] cannot be made to do service when what isinvolved is a criminal statute."

Petitioner's counsel disagrees and says that "this holding goes against the grain of Americanurisprudence" and that in fact "American law reports are full of decisions where either the overbreadth or

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vagueness doctrines have been used to invalidate non-free speech statutes on their faces." Petitioner citesa 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 ofstrict scrutiny, overbreadth and vagueness are analytical tools for testing 'on their faces' statutes in freespeech cases or, as they are called in American law, First Amendment cases [and therefore] cannot bemade to do service when what is involved is a criminal statute," we did not mean to suggest that thedoctrines 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 thestatutes as applied to them. Neither did we mean to suggest that the doctrines justify facial challenges onlyin free speech or First Amendment cases.To be sure, they also justify facial challenges in cases under theDue Process and Equal Protection Clauses of the Constitution with respect to so-called "fundamentalrights." In short, a facial challenge, as distinguished from as-applied challenge, may be made on theground that, because of vagueness or overbreadth, a statute has a chilling effect on freedom of speech orreligion or other fundamental rights. But the doctrines cannot be invoked to justify a facial challenge tostatute where no interest of speech or religion or fundamental freedom is involved, as when what is beingenforced 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 beenused to invalidate non-free speech statutes of their faces" do not apply to the present case. Brown v.Louisian a [7]

crala w and Shuttlesworth v. Birmingham , [8]crala w which counsel cites, although arising from prosecutions

for breach of the peace, actually involved free speech rights or expressive activities, consisting of the rightto 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]

crala w in explaining the breach-of-peace cases,

the plain import of our cases is, at the very least, the facial overbreadth adjudications anexception to our traditional rules of practice and that its function, a limited one at theoutset, attenuates as the otherwise unprotected behavior that it forbids the State tosanction moves from "pure speech" towards conduct and that conduct - even if expressive- falls within the scope of otherwise valid criminal laws that reflect legitimate stateinterests in maintaining comprehensive controls over harmful, constitutionally, unprotectedconduct. Although such laws, if too broadly worded, may deter protected speech to someunknown 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 fromenforcing 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 ofthe U.S. Constitution, such as the right of privacy , [10]

cralaw voting rights , [11]crala w the right to travel , [12]

crala w andfederalisms . [13] crala w At first glance, these rights appear to be of universal value. An examination of theircontent will show, however, that they are not. For example, the concept of privacy as a fundamental righthas been interpreted in American law to include the right to use contraceptive devices , [14]

crala w the right to havean abortion , [15]

crala w the right to marry , [16]crala w and the right to die . [17]

crala w Other "rights" are being pressed forrecognition in the name of privacy, namely, the "right" to engage in homosexual sodom y [18]

cralaw and the "right"to physician-assisted suicide . [19]

crala w It is obvious that such "rights" cannot exist under our laws. It cannot becontended that statutes prohibiting the exercise of such "right" are presumed void because the rightsinvolved are "fundamental." These were declared "rights" by the U.S. Supreme Court in the course of whathas come to be called "fundamental rights" adjudications, determining what interests are implicit in theAmerican "scheme of ordered liberty" for the purpose of extending such "rights" to the several states. It isobvious that such "rights" are not necessarily also part of the liberty guaranteed on the Due Process Clauseof our Constitution.

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

crala w On the other hand, Florida Prepaid Postsecondary Education Expense Board v. College Savings

Bank , [21]crala w 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 sufficeto 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































































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cases, there are no interests of speech or other fundamental rights affected by the enforcement of the lawand, therefore, there is no basis for departing from the general rule that a party can challenge a statuteonly 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 oncommon carriers," "Statute on waste," and "Statute on procedure" no not address the question whether inthe 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 vaguenessand overbreadth doctrines apply to facial challenges to criminal statutes. The question rather is whether themere 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 ofthe 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 otherfundamental rights of petitioner, a facial review of the law cannot be required nor the burden of proving itsvalidity 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: "Vaguenesschallenges 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 particulardefendant. " [22]

crala w 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 petitionercannot 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 beeneither ignored or overruled in subsequent decisions of the American Supreme Court. Petitioner singles outtwo cases cited in the decision in this case.The first is United States v. Salern o [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, sincethe challenger must establish that no set of circumstances exists under which the Act would be valid. Thefact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstancesis insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside thelimited 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 denyingcertiorari in an abortion case . [24]

crala wThe 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 ofour jurisprudence: "The fact that [a legislative] Act might operateunconstitutionally under some conceivable set of circumstances is insufficient torender 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 rhetoricalflourish, stating that a facial challenge must fail unless there is "no set ofcircumstances" 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 Courteffectively held that the statute at issue would be constitutional as applied in alarge 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" onwhich this Court relied for its decision in this case. This part of the ruling in that case has not beenmodified, much less overruled, in any subsequent decisions of the U.S. Supreme Court, and it fully supportsthe ruling in the case at bar that the vagueness and overbreadth doctrines justifying facial examination ofstatutes infringing interests of speech or freedom of religion or other fundamental rights do not apply topenal statutes like the Anti-Plunder Law.What Justice Stevens stated was a mere "rhetorical flourish" is the statement that "[a] facial challenge to alegislative act is, of course, the most difficult challenge to mount successfully, since the challenger must















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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 rulingin Planned Parenthood v. Case y [25]

cralaw which held that a statute will be held facially invalid if "in a largefraction of cases in which [it] is relevant, it will operate as a substantial obstacle to a woman's choice toundergo an abortion." With this part of the Salerno ruling (or dictum as petitioner's counsel calls it) we arenot concerned in this case, because it is irrelevant. Even if it was later "replaced" by the decisionin Casey, this fact is of no moment to this case.

Indeed, Salerno could not really have been "replaced" by Casey because the two cases involvedfundamentally different interests. Casey involved abortion for which a different test of overbreadth fordetermining the validity of a statute on its face was formulated. Salerno is a non-First Amendment and anon-fundamental rights case. It involved a challenge to the Bail Reform Act of 1984 which permits a federalcourt to detain an arrestee without bail pending trial on the ground of the danger posed by the arrestee tothe community. It was contended in that case that the denial of bail on the basis of the court'sdetermination that the arrestee was likely to commit future crimes was a denial of due process. TheAmerican Court rejected the facial challenge to the law and it was in that context that it ruled that "[t]hefact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstancesis insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside thelimited 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 thesubject, it has its detractors. But so does it have its defenders. In point of fact, the ruling has been affirmedin at least two cases: Reno v. Flore s [26]

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and Rust v. Sullivan . [27]crala w

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, amongother things, required any married woman seeking an abortion to submit a statement that she has notifiedher husband of her decision to have an abortion. As previously noted, the right to an abortion is consideredin American jurisprudence as a "fundamental right" justifying a facial review of a statute. The pertinentprovision of the Pennsylvania statute was invalidated on the ground that it operated in "a large fraction ofcases" as a "substantial obstacle" to a woman's fundamental right to have an abortion. A new standard ofreview 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 beenoverruled, is Broaderick v. Oklahom a [28]

crala w which held:Embedded in the traditional rules governing constitutional adjudication is the principle that a person towhom a statute may constitutionally be applied will not be heard to challenge that statute on the groundthat 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 supersededby 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 facialinvalidity in First Amendment and fundamental rights cases is the "substantial overbreadth" testin Broaderick or the test of "undue burden in a large fraction of cases" in Casey. The question in this case iswhether the overbreadth and vagueness doctrines in First Amendment and fundamental rights cases, whichcall for the facial invalidation of a statute, applies to penal statutes. Broaderick categorically stated that itdoes not: "Claims of facial overbreadth have been entertained in cases involving statutes which, by theirterms, seek to regulate only spoken words." [29]

crala w Overbreadth or vagueness m an ordinary criminal law canustify 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 Artsv. Finley, [30]

cralaw the opinion in which was written by Justice O'Connor, who also wrote the plurality opinionin Planned Parenthood v. Casey. For Broaderick and Casey really involved different facts, as pointed outabove.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 whichan accused is being prosecuted is valid, the statute will not be declared void simply because its otherprovisions, not applicable to the case, are void for being vague or overbroad. On the other hand, in FirstAmendment or fundamental rights cases, either "substantial overbreadth" or "undue burden in a largefraction 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: thereare two types of constitutional challenges, "as-applied" challenges and "facial"challenges. As-applied challenges are the standard kind of constitutionalchallenge, while facial challenges are unusual. A facial challenge to a rule should



























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succeed only if (1) there exists no set of circumstances under which the rulecould be constitutionally applied, or (2) the facial invalidation of the rule iswarranted by the "overbreadth" doctrine, a special doctrine limited to the FirstAmendment.

[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 structurefor evaluating facial attacks. On the first tier lie cases involving FirstAmendments 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" ofunconstitutional applications. On the second tier rest all other facial attacks, andthey 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 weightas precedents (for they are not binding on this Court) but because of the force of their reasoning and onlybecause they are either cited to us in petitioner's pleadings or their discussion is impelled by argumentsadvanced 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 longas 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 ChallengedIt is nevertheless argued that, if subparagraphs (3), (4), (5), and (6) of §1(d) are void because they arevague 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 - cannotaffect the validity of the provisions under which petitioner is being prosecuted. For one, the Anti-PlunderAct provides in §7 that "if any provisions of [the] Act or the "application thereof to any person orcircumstances is held invalid, the remaining provisions of this Act and the application of such provisions toother persons or circumstances shall be affected thereby." For another, while it is true that a separabilityclause in a statute creates only a presumption, that presumption has not been disputed in the case of theAnti-Plunder Law. The test is whether the statute can exist independently of the invalid parts. [33]

crala w

In thecase 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 thesesubparagraphs will not affect the validity of the other provisions carrying out the legislative purpose topunish 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 theAnti-Plunder Law and call for a determination of the validity of all its provisions on their faces. As anycriminal statute, the law in question must be strictly construed in specific instances in which its provisionsare 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 ofthe law. Application of the strict scrutiny standard to the Anti-Plunder Law would place on the governmentthe. burden of demonstrating a compelling reason for its enactment, when the presumption is that everystatute is valid and the burden of showing its invalidity is on the accused . [34]

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The consequence of applyingstrict scrutiny to criminal statutes and reversing the presumption of constitutionality, when no interest offreedom of speech or religion or any other fundamental right is implicated by its enforcement, is disastrousto our system of criminal law. As Professor Gunther has pointed out, strict scrutiny is "strict" in theory and"fatal" in fact. [35]

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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 ofthe 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 theAnti-Plunder Law as applied to him are vague and overbroad. As in those pleadings, very little is given inpetitioner's Motion for Reconsideration to a discussion of the invalidity of §1(d), subparagraphs (1) and (2),























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as applied to him. The bulk of the Motion for Reconsideration is devoted to a discussion why the othersubparagraphs, namely, subparagraphs (3), (4), (5), and (6) of §1(d), are void and why petitioner shouldbe allowed to raise their alleged invalidity as a defense. These subparagraphs of §1(d) deal with theestablishment of, monopolies and combinations, the implementation of a presidential decree to favorparticular individuals, the acquisition of ownership of stocks in a business enterprise, and the illegal orfraudulent disposition of government property. Petitioner is not being prosecuted for their violations but forviolation 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), onplunder committed by receiving commission, gift, share, percentage, kickbacks, or any other form ofpecuniary benefit while the accused is in office. As this is not a case which involves the exercise of freedomof 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 inmy separate opinion on why they are neither vague nor overbroad, as no new arguments are presented inthe Motion for Reconsideration. It only remains to say here That in concluding that these provisions are notvague, the Court did not rely simply on the allegations of the Amended Information against petitioner. Myseparate 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 prosecutionagainst 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 Congresson S. No. 733 and to the purpose of the law. While the main opinion and my separate opinion madereferences 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 thiscase amounts to judicial legislation by the Court. It is not as if the Court plucked their meaning from thinair, because in reality their meaning is discoverable from a consideration of the legislative history of thelaw, particularly the abuses of presidential power which led to its enactment. No drastic surgery of thestatute was needed to ascertain the meaning and purpose of Congress in enacting that law. As we haveruled in another case, [36]

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when a statute is not "perfectly vague," such that its meaning can be ascertainedby 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 PunishmentIt is contended that the Anti-Plunder Law violates the due process and equal protection guarantees of theConstitution. It is contended that the penalty for the predicate crimes of plunder, when consideredseparately, are light compared to the penalty ( reclusion perpetua to death) imposed when these crimes aretreated 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 unusualpunishment.With respect to the first point, suffice it to say that when the predicate crimes are committed incombination or series by one who, taking advantage of his office, amasses wealth in the amount of at leastP50 million, the predicate crimes take on a very different complexion. They amount to a systematic lootingof public wealth. The predicate crimes become plunder. As the explanatory note accompanying S. No. 733stated:

Plunder, a term chosen from other equally apt terminologieslike 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 ofmalversation 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 possiblerecurrence 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 familiartechniques employed in the law, e.g., the Revised Penal Code, to reflect Congress's concerns in dealing with







8

serious offenses. That is why this Court held that plunder is a malum in se because it is not only morallyreprehensible but also stigmatizing in its effect. For example, robbery with violence against or intimidationof persons under Art. 294, par. 5 of the Revised Penal Code is punished with prision correccional in itsmaximum period (4 years, 2 months, and 1 day) to prision mayor in its medium period (6 years and 1 daytd 8 years). Homicide under Art. 249 of the same Code is punished with reclusion temporal (12 years and 1day to 20 years). But when the two crimes are combined into the special complex crime of robbery withhomicide 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 reclusiontemporal (12 years and 1 day to 20 years). When the two crimes are combined because they arecommitted on the same occasion, the two are treated as one special complex crime of rape with homicideand punished with a heavier penalty of reclusion perpetua to death.Petitioner cannot therefore compare the penalty for plunder (reclusion perpetua to death) with thepenalties for special complex crimes such as malversation of public funds or property , [37]

crala w

bribery , [38]crala w

fraudsand illegal exactions , [39]

crala w

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, qualifiedpiracy , [41]

crala w qualified bribery , [42]crala w

or robbery with violence against or intimidation of persons , [43]crala w

for whichthe penalty is similar.Qualified piracy, qualified bribery, or robbery with violence against or intimidation of persons, along withplunder, are considered heinous offenses in R.A. No. 7659. As this Court said, referring to heinous crimesin 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 victimis treated like an animal and utterly dehumanized as to completely disrupt thenormal course of his or her growth as a human being. . . .Seen in this light, thecapital crimes of kidnapping and serious illegal detention for ransom resulting inthe death of the victim or the victim is raped, tortured, or subjected todehumanizing acts; destructive arson resulting in death; and drug offensesinvolving minors or resulting in the death of the victim in the case of. othercrimes; as well as murder, rape, parricide, infanticide, kidnapping and seriousillegal 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 orthe victim is a minor, robbery with homicide, rape or intentional mutilation,destructive arson, and carnapping where the owner, driver or occupant of thecarnapped vehicle is killed or raped, which are penalized by reclusion perpetua todeath, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in thesignificance and implications of the subject criminal acts in the scheme of thelarger socio-political and economic context in which the state finds itself to bestruggling to develop and provide for its poor and underprivileged masses.Reeling from decades of corrupt tyrannical rule that bankrupted the governmentand impoverished the population, the Philippine Government must muster the

political will to dismantle the culture of corruption, dishonesty, greed andsyndicated criminality that so deeply entrenched itself in the structures of societyand the psyche of the populace. [With the government] terribly lacking themoney to provide even the most basic services to its people, any form ofmisappropriation or misapplication of government funds translates to an actualthreat 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 andrepercussions of crimes like qualified bribery, destructive arson resulting indeath, and drug offenses involving government officials, employees or officers,that their perpetrators must not be allowed to cause further destruction and



































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damage to society.Moreover, R.A. No. 7659, which imposes the penalty of reclusion perpetua to death for plunder and othercrimes considered heinous, is based on a legislative finding. I t is, therefore, presumed valid, and thispresumption cannot be overcome except by "some factual foundation of record" to the contrary . [45]

cral aw 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 strictscrutin y [46]

crala w

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 nointerests of speech or fundamental rights are involved, will severely impair the State's ability to deal withcrime. It will enable an accused, who is otherwise guilty, to escape condign and merited punishment simplyby showing that, as applied to others, the statute is vague and/or overbroad, even though as to him it isnot.It will enable the defense in a criminal case to turn the tables on the prosecution and put the latter onthe defensive by imposing on it the burden of justification. Even now, petitioner is already claiming that it isthe Anti-Plunder Law, and not he, which is On trial. I t is not only the sovereign prerogative of the State tomaintain order and to punish those who violate the criminal laws designed for this purpose. The exercise ofthis 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 beingprosecuted under them, petitioner will in effect be allowed to assert the rights of third parties not beforethe Court.Any adverse ruling on his constitutional challenge will foreclose the right of third parties to raisethe same question. If it be argued that assertion of the invalidity of the other provisions of the Anti-PlunderLaw is being made only for the purpose of showing that the law is invalid and petitioner cannot beprosecuted under an invalid law, the flaw in the argument becomes apparent, for then any pronouncementwe make on the matter will be merely advisory.It is beyond the power of courts in our constitutionalsystem to render advisory opinions. As we have held, "courts do not sit to adjudicate mere academicquestions to satisfy scholarly interest therein, however solid the problem may be. " [48]

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

crala w No one has written more extensively on the need for an actual case or controversyas 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 andwhich 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 oursociety; the judgment of courts may be had, in concrete cases that exemplify theactual consequences of legislative or executive actions. Thus is the Court enabledto prove its principles as it evolves them. The concepts of "standing" and "caseand controversy" tend to ensure this, and there are sound reasons, grounded notonly 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 controversyleads to sounder and more enduring judgments. "Every tendency to deal withconstitutional questions abstractly," Professor Felix Frankfurter wrote ageneration ago, "to formulate them in terms of barren legal questions, leads todialectics, to sterile conclusions unrelated to actualities."

It may be added that the opportunity to relate a legislative policy to theflesh-and-blood facts of an actual case, and thus to see and portray it from a verydifferent vantage point, to observe and describe in being what the legislaturemayor may not have foreseen as probable - this opportunity as much as, or morethan, anything else enables the Court to appeal to the nation's second thought.Moreover, the "standing" and "case" requirement creates a time lag betweenlegislation and adjudication, as well as shifting the line of vision. Hence itcushions the clash between the Court and any given legislative majority andstrengthens the Court's hand in gaining acceptance for its principles. The validityof this argument, it may be ventured, would soon be apparent if it were























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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, inanother 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 BYPETITIONER.

Very truly yours,

LUZVIMINDA D.PUNO







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Endnotes: [1] crala w 290 SCRA 117 (1998).[2] crala w Id. at 126.[3] crala w Younger v. Harris, 401 U.S. 37, 52, 27 L.Ed.2d 669 (1971).[4] crala w Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).[5] crala w See Broaderick v. Oklahoma, 413 U.S. 601, 612-613, 37 L.Ed.2d 830, 840-841 (1973); UnitedState v. Salerno , 481 U.S. 739, 745, 95 L.Ed. 697, 707 (1987); People v. De la Piegra, G.R. No. 121777,Jan. 24, 2001.[6] crala w Village of Hoff man Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-495, 71 L.Ed.2d. 362,369 (1982).[7] crala w 383 U.S. 131, 15 L.Ed.2d. 637 (1966).[8] crala w 382 U.S. 87, 15 L.Ed.2d 176 (1965).[9] crala w 413 U.S. 601, 615, 37 L.Ed.2d 830, 842 (1973).[10]

crala w Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510 (1965) (contraception); Roe v. Wade, 410 U.S.113, 35 L.Ed.2d 147 (1973) (abortion); Planned Parenthood v. Casey, 505 U.S. 533, 120 L.Ed.2d 674(1992) (abortion); Adana v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011, 121 L.Ed.2d564 (1992) (abortion) (memorandum decision); Stenberg v. Carhart, 530 U.S. 914, 147 L.Ed.2d 743(2000) (partial-birth abortion).[11]

crala w United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876); Kramer v. Union Free School Dist., 395 U.S.621, 23 L.Ed.2d 583 (1969).[12]

crala w Aptherker v. Secretary of State, 378 U.S. 500, 12 L.Ed.2d 992 (1962).[13]

crala w Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 144 L.Ed.2d527 (1999).[14]

crala w Griswold v. Connecticut, supra note 10.

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[15]crala w Roe v. Wade, supra note 10; Thornburg v. American College of Obstetricians and Gynecologists, 476

U.S.747, 90 L.Ed. 2d 779 (1986); Planned Parenthood v. Casey, supra note 10; Stemberg b. Carhart, 530U.S. 914, 147 L.Ed.2d 743 (2000).[16]

crala w Zablocki v. Redhail, 434 U.S. 374, 54 L.Ed.2d 618 (1978).[17]

crala w Cruzan v. Director of Missouri Dep't of Health, 497 U.S. 261, 111 L.Ed.2d 224 (1990).[18]

crala w Bowers v. Hardwick, 478 U.S. 186, 92 L.Ed.2d 140 (1986).[19]

crala w Washington v. Glucksberg, 521 U.S. 702, 138 L.Ed.2d 772 (1997).[20]

crala w

CONST., ART. II, §12 provides: " The State recognizes the sanctity of family life and shall equallyprotect the life of the mother and the life of the unborn form conception. The natural and primary right andduty of parents in the rearing of the youth for civic efficiency and the development of moral character shallreceive the support of the Government."[21]

crala w Supra note 13.[22]

crala w K. SULLIVAN & GUNTHER, CONSTITUTIONAL LAW 1299 (14 th ed. 2001).[23]

crala w 481 U.S. 739, 745, 95 L.Ed.2d 697, 707 (1987).[24]

crala w Janklow v. Planned Parenthood, 517 U.S. 1174, 134 L.Ed.2d 679 (1996).[25]

crala w 505 U.S. 833, 895, 120 L.Ed.2d 674 (1992).[26]

crala w 507 U.S. 292, 123 L.Ed.2d 1 (1993).[27]

crala w 500 U.S. 173, 114 L.Ed.2d 233 (1991).[28]

crala w 413 U.S. 601,611,37 L.Ed.2d 830, 839 (1973).[29]

crala w 413 U.S. at 612-613, 37 L.Ed.2d at 840-841 (1973).[30]

crala w 524 U.S. 569, 141 L.Ed.2d 500 (1998).[31]

crala w Matthew D. Adler, Rights, Rules and the Structure of Constitutional Adjudication: A Response to

Professor Fallon, 113 HARV . L. REV . 1371, 1386-87 (2000).[32]crala w John Christopher Ford, Note, The Casey Standard for Evaluating Facial Attacks on Abortion Statutes , 95

MICH. L. REV . 1443, 1445 (1997).[33]

crala w Tatad v. Secretary of the Department of Energy, 282 SCRA 337, 354 (1998); Dumlao v. COMELEC, 95SCRA 392 (1980); People v. Vera, 65 SCRA 56 (1937).[34]

crala w The normal presumption of validity is reversed only in the case of statutes operating in the area offreedom of expression and fundamental rights. See Social Weather Stations v. COMELEC, G.R. No. 147571,May 5, 2001; Ayer Productions Pty. Ltd v. CapuIong, 160 SCRA 861 (1988); New York Times v. UnitedStates, 403U.S. 713, 29 L.Ed.2d 822 (1971).[35]

crala w Gerald Gunther, Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a ChangingCourt: A Model for Newer Equal Protection, 86 HARV . L. REV . 1, 8 (1972).[36]

crala w People v. Nazario, 165 SCRA 186(1988); People v. Rosenthal, 68 Phil. 328 (1939).[37]

crala w REV . PENAL CODE, ART. 217.[38]

crala w Id. , ART. 210.[39]

crala w Id. , ARTS. 213-216.[40] crala w Id. , ART. 186.[41]


crala w Id. , ART. 211-A.[43]


crala w 267 SCRA 682, 721-2 (1997) (emphasis added).[45]

crala w Ermita-Malate & Hotel Operators Ass'n v. City Mayor, 127 Phil. 315 (1967). See also Samson v. Mayorof Bacolod City, 60 SCRA 267 (1974) (Fernando, J. , concurring in part and dissenting in part);Agustin v. Edu, 88 SCRA 195 (1979); Bautista v. Juinio, 127 SCRA 329 (1984).[46]

crala w Strict scrutiny is set opposite deferential review or mere rationality test and intermediate review. Therequirements of these standards of review and their uses are set forth on page 9 of my separate opinion inthis case, citing Geoffrey R. Stone, Content-Neutral Restrictions, 54 UNIV. OFCHI. L. REV. 46, 50-53(1987).[47]

crala w CONST., ART. II, §5 provides: "The maintenance of peace and order, the protection of life, liberty, andproperty, and the promotion of the general welfare are essential for the enjoyment by all the people of theblessings, of democracy."[48]

crala w Philippine Ass'n of Coll. & Univ. v. Secretary of Educ., 97 Phil. 806, 811 (1955) (Rejecting a challengeto Act No. 2706, which places private schools under government supervision).[49]

crala w CONST., ART. VIII, §1, par. 2 and §5.[50]

crala w A. M. BICKEL, THE LEAST DANGEROUS BRANCH 115-16 (1962).













































































































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