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In the deliberation regarding the restoration of the death penalty, some have suggested including plunder among the crimes punishable in the extreme.

Those suggesting this might do better recasting the law governing the crime of plunder. In recent cases, lawyers have identified a loophole in the law as it is framed that could make it very difficult to convict anyone going forward.

Plunder is a crime specific to Philippine laws. What distinguishes this particular crime is the specification of a threshold of P50 million of funds accumulated through an act or a series of acts of self-enrichment. Only public officials found to have used their office to accumulate ill-gotten wealth could be guilty of the crime.

Plunder is a serious offense. Anyone charged, with compelling evidence, of this offense cannot post bail.

Being a newly conceived crime, the commission of plunder is still in the process of definition through jurisprudence. Only a few cases have been filed so far to set clear precedents.

In the Gloria Macapagal Arroyo vs. Sandiganbayan case, the Supreme Court en banc ruled that the law required that a “main plunderer” to be specifically identified in the information against the accused. The identification of the “main plunderer” is now an essential element of the crime of plunder.

Like a hub that controls all the spokes of a wheel, the Court ruled that the “main plunderer” controls all the actions that lead to the commission of plunder. As such, a private person cannot be the “main plunderer.” By extending that logic, it will be a stretch to argue a mere employee of a senior public official is the “main plunderer.”

In relation to the pork barrel scandal a few years ago, three sitting senators were charged with plunder: Juan Ponce Enrile, Bong Revilla and Jinggoy Estrada. They were all detained for a significant period until the Supreme Court ruled (in Enrile’s case) to grant bail and (in Revilla’s case) the Sandiganbayan voted to acquit.

The acquittal of Bong Revilla was controversial. While the Sandiganbayan found insufficient basis to convict the (now reelected) senator, he was ordered to reimburse government of the amount that was supposed to have been plundered.

His chief of staff Richard Cambe was found guilty – and by the terms of the law must be considered the “main plunderer.” The conviction is under appeal.

Jinggoy Estrada expects that the decision on the Revilla case will also benefit him. In which case, his chief of staff Pauline Labayen will be left holding the bag.

Enrile, who tried but failed to regain his seat in the Senate, is out on bail. His chief of staff Gigi Reyes languishes in jail.

The common co-accused of the three is Janet Lim Napoles. Her name has become synonymous with the scandal, having run the outfit that “processed” the pork barrel funds.

A few months ago, Estrada and Napoles filed a Demurrer to Evidence before the Sandiganbayan. The motion basically asks the court to dismiss the case because the evidence provided by the prosecution failed to prove guilt.

The Sandiganbayan rejected the motion. The new counsel for Napoles has filed a supplemental motion for reconsideration on a novel premise.

This supplemental motion argues that the case filed against both Estrada and Napoles failed to categorically name the “main plunderer”. Because of that, the case is void from the start. No amount of additional evidence the prosecution might submit will cure the deficiency.

The “main plunderer” could not be Napoles since she is a private citizen. But the information filed did not specifically name Estrada as the “main plunderer.”

This supplemental motion draws heavily from the Supreme Court ruling in the Arroyo vs. Sandiganbayan mentioned above. Arroyo won dismissal in this case because, even as the information charges ten persons with plunder, no “main plunderer” was named. As such the charges could not stand.

In the Supreme Court ruling, the “main plunderer” has to be a single individual. He or she has to be named in the information filed. In a “wheel conspiracy”, regardless of the number of persons named as co-conspirators, that single individual must be established as the “hub” controlling the entire commission of the crime.

Because plunder is a crime that only a public official can commit, the “main plunderer” could not be Napoles. She may be charged as co-conspirator, but without a “main plunderer” named, she is co-conspirator to no one. Ill-gotten wealth of at least P50 million must accrue to someone. He must be so positioned as to cause the accrual to himself.

All these might sound like legalistic hair-splitting. But the argument over definitions is important. Some of the most earth-shaking court cases have ended in a whimper, the charges dismissed on a minor technicality.

For this reason, there is a great burden on prosecutors to frame the case precisely and to provide the evidence to support the charges. In the wake of the SC ruling in the Arroyo case, it is now essential that the prosecution identify the “main plunderer” among those charged for the crime.

In failing to identify a “main plunderer” in the cases where Napoles is co-accused, there is a real possibility the charges will be dismissed. This is not mere technicality. It is an indispensable ingredient given the precedence of the SC ruling mentioned above.

We will see how the Sandiganbayan responds to this supplemental motion. It opens a novel line of argument based in previous Supreme Court rulings. It also exposes a flaw in the way the plunder law was framed.

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