People vs. Gaborney, GR 210710, Jul.

27, 2016

PEREZ, J.:
Before the Court is an appeal from the Decision [1] of the Court of Appeals (CA) dated 29 July 2013 in CA-G.R. CR HC No.
01183, affirming the Decision[2] of the Regional Trial Court (RTC), Branch 33, Calbiga, Samar which found appellant
Luisito Gaborne y Cinco guilty of the crime of Murder with the use of Unlicensed Firearm, as defined in Article 248 of the
Revised Penal Code (RPC) as amended by Sec. 6 of Republic Act (R.A.) No. 7659, and Frustrated Murder as defined in
Article 248 in relation to Article 50 of the RPC, respectively.

Together with two others, appellant was charged with Murder with the use of Unlicensed Firearm and Frustrated Murder
in the following Informations:

Criminal Case No. CC-2007-1650

That on or about the 2nd day of February 2007, at about 11:00 o'clock in the evening more or less, at Brgy. Mugdo,
Hinabangan, Samar, Philippines, and within the jurisdiction of this Honorable Court, the above -named accused,
conspiring, confederating, mutually helping one another, with deliberate intent to kill, and with treachery and evident
premeditation, which qualify the offense into murder, did there, willfully, unlawfully, and feloniously, shot (sic) Sixto
Elizan y Herrera, with the use of an unlicensed firearm a caliber [.]45 pistol, a special aggravating circumstance pursuant
to RA 8294, which accused have provided themselves for the purpose, thereby hitting and inflicting upon the said Sixto
Elizan y Herrera fatal gun shot wounds on the different parts of his body, which gun shot wounds caused his
instantaneous death.[3]

Criminal Case No. CC-2007-1650

That on or about the 2nd day of February 2007, at around 11:00 o'clock in the evening more or less, at Brgy. Mugdo,
Municipality of Hinabangan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above named accused, conspiring, confederating, mutually helping one another, with deliberate intent to kill, and with
treachery, which qualifies the offense to murder, did, then and there, willfully, unlawfully and feloniously shot [sic] the
victim, Rey Perfecto C. de Luna, with the use of a caliber [.]45 pistol, an unlicensed firearm, a special aggravating
circumstance pursuant to Rep. Act No. 8294, with which the accused have provided themselves for the purpose, thereby
inflicting upon the victim the following wounds, to wit:

Gun shot wound (R) back penetrating (R) chest, lacerating diaphragm, (R) lobe of the liver, thru and thru and greater
omentum with massive hemoperitoneum

Gun shot wound (R) para spinal area at L2 penetrating abdomen perforating ileum thru and thru
thus, accused have performed all the acts of execution which should have produced the crime of murder as a consequence
but which nevertheless did not produce it by reason of some cause independent of the will of the accused, that is, the
timely medical treatment/intervention rendered to the victim at Saint Paul's Hospital, Tacloban City. [4]
On arraignment, appellant entered a plea of NOT GUILTY [5] for both charges. Trial on the merits ensued thereafter.

The Facts

The antecedent facts culled from the Appellee's Brief[6] and the records of the case are summarized as follows:

On 2 February 2007 at around 10:30 in the evening, Rey Perfecto De Luna (De Luna) and Sixto Elizan[7] (Elizan) entered
a videoke bar[8] at Barangay Mugdo, Hinabangan, Samar.[9] Noli Abayan (Abayan), appellant and Joselito Bardelas
(Bardelas) followed five minutes thereafter. [10]

While Elizan and De Luna were drinking, singing and merely having fun, four successive gunshots [11] were fired through
the window. Because of this, Elizan and De Luna were hit from behind.[12] Later on, De Luna[13] and Marialinisa
Pasana[14] (Pasana) saw appellant, who was then wearing a black t-shirt and a black cap, holding a gun aimed at their
location. Pasana also saw accused-appellant and Bardelas escape after the incident.[15]

Elizan and De Luna were brought to St. Paul's Hospital at Tacloban City. [16] Unfortunately, Elizan was pronounced dead
upon arrival. De Luna, on the other hand, survived. [17]
Appellant steadfastly denied the accusations. According to him, he and his companions ordered for bottles of beer.
However, when they tried to order for more bottles, the waitress refused to give them their order unless they pay for their
previous orders first.[18] While Abayan was explaining to the father of the owner of the videoke bar, appellant and Bardelas
went out to urinate,[19] however, the waitress locked the front door.[20] While standing outside, he heard the waitress utter
the words, "If you will not pay, I [will] have you killed, all of you, right this moment.[21] He also consistently contend that it
was a man wearing black shirt and camouflage pants who fired shots to the videoke bar[22], not him.

The following day, appellant and Bardelas were arrested and underwent paraffin test. [23]

Ruling of the Regional Trial Court

On 12 March 2010, the RTC rendered a joint judgment finding accused-appellant guilty of the two (2) charges of Murder
with the use of Unlicensed Firearm and Frustrated Murder. The dispositive portion of the decision reads:

WHEREFORE, premises considered, the [c]ourt finds the co-accused LUISITO GABORNE y CINCO GUILTY
BEYOND REASONABLE DOUBT as principal in the crimes of:

Murder with the Use of an Unlicensed Firearm under Art. 248 of the Revised Penal Code in Criminal Case No. CC-
2007-1640 and considering the presence of one (1) aggravating circumstance without any mitigating circumstance
A. to offset it, hereby sentences him to suffer imprisonment of RECLUSION PERPETUA; to pay the Heirs of Sixto
Elisan y Herrera Php75,000.00 as civil indemnity for his death; Php50,000.00 in moral damages and
Php25,000.00 in exemplary damages and to pay the costs of this suit.

Frustrated Murder penalized under Art. 248 in relation to Art. 50 of the Revised Penal Code in Criminal Case No.
CC-2007-1650 and considering the presence of one (1) aggravating circumstance without any mitigating
circumstance to offset it hereby sentences him to suffer imprisonment of an indeterminate penalty ranging from
B.
ELEVEN (11) YEARS of Prision Mayor as minimum to EIGHTEEN (18) YEARS of Reclusion Temporal as
maximum, to pay Perfecto de Luna Php264,866.58 as civil liability without subsidiary imprisonment in case of
insolvency and to pay the costs of this suit.

The accused who underwent preventive imprisonment since February 3, 2007 shall be credited with the full time during
which he was deprived of his liberty if he agreed voluntarily and in writing to abide by the same disciplinary rules imposed
upon convicted prisoners otherwise he will be entitled to only four-fifths (4/5) thereof.

Because the prosecution absolutely failed to prove guilt of accused NOLI ABAYAN y LARGABO and co-
accused JOSELITO BARDELAS y BACNOTAN from the instant criminal charges, they are ACQUITTED in these
cases. No civil liability is assessed against them.

Because the said accused are detained, the Provincial Warden of Samar are hereby ordered to release the said accused
from detention unless they are held for some-other cause or ground.[24]

Ruling of the Court of Appeals

The CA found no merit in appellant's arguments. It pointed out that appellant is estopped from questioning the legality of
his arrest as it was raised for the first time on appeal. [25] Thus, the appellate court was fully convinced that there is no
ground to deviate from the findings of the RTC. The dispositive portion of the decision reads:

WHEREFORE, the instant appeal is hereby DENIED. The Joint Judgment dated March 12, 2010 rendered by Branch
33, Regional Trial Court of Calbiga, Samar, 8th Judicial Region in Criminal Case Nos. [CC-] 2007-1640 and [CC-]2007-
1650 is hereby AFFIRMED WITH MODIFICATION as to the award of damages, to wit:

1. The award of civil indemnity in Criminal Case No. [CC-]2007-1640 is affirmed;

2. The award of moral damages in the amount of Php50,000.00 in Criminal Case No. [CC-]2007-1640 is affirmed;

3. The award of exemplary damages in the amount of Php25,000.00 in Criminal Case No. [CC-]2007-1640 is
affirmed;
 4. In Criminal Case No. [CC-]2007-1650, accused-appellant is ordered to pay moral damages to the private offended
party, Rey Perfecto De Luna, in the amount of Php40,000.00;

5. In Criminal Case No. [CC-]2007-1650, accused appellant is likewise ordered to pay exemplary damages to the
private offended party, Rey Perfecto De Luna, in the amount of Php20,000.00; and

6. Accussed-appellant is further ordered to additionally pay the private offended parties in the two criminal cases,
Rey Perfecto De Luna and the heir/s of Sixto Elizan, interest on all damages at the legal rate of six percent (6%)
from the date of finality of this judgment until the amounts awarded shall have been fully paid. [26]

Appellant appealed the decision of the CA. The Notice of Appeal was given due course and the records were ordered
elevated to this Court for review. In a Resolution[27] dated 19 February 2014, this Court required the parties to submit their
respective supplemental briefs. Both parties manifested that they are adopfing all the arguments contained in their
respective briefs in lieu of filing supplemental briefs.[28]

Our Ruling

We find that the degree of proof required in criminal cases has been met in the case at bar. Appellant's defenses of denial
and alibi are bereft of merit.

Assailing the legality of arrest should

be made before entering a plea

Before anything else, we resolve the procedural issue raised by the appellant. [29]

Any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction over the person of
the accused must be made before he enters his plea; otherwise, the objection is deemed waived. [30] In People v.
Velasco,[31] this Court held that the accused is estopped from assailing the legality of his arrest for his failure to move for
the quashal of the Information before arraignment. In this case, appellant only questioned the legality of his arrest for the
first time on appeal.[32]

Furthermore, even granting that indeed there has been an irregularity in the arrest of the appellant, it is deemed cured by
his voluntary submission to the jurisdiction of the trial court over his person. [33] Thus, appellant is deemed to have waived
his constitutional protection against illegal arrest[34] when he actively participated in the arraignment[35] and trial of this
case.[36]

Elements of Murder and Frustrated

Murder were established

This Court finds that the circumstance of treachery should be appreciated, qualifying the crime to Murder. According to
the Revised Penal Code:

ARTICLE 248. Murder. - Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty
of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the
following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken
the defense or of means or persons to insure or afford impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a
street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic, or any other public calamity.

5. With evident premeditation.

 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his
person or corpse.

Thus, the elements of murder are: (1) that a person was killed; (2) that the accused killed him or her; (3) that the killing
was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; and (4) that the killing is not
parricide or infanticide.[37]

Furthermore, there is treachery when the offender commits any of the crimes against the person, employing means,
methods or forms in the execution thereof, which tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. [38]

The requisites of treachery are:

The employment of means method, or manner of execution which will ensure the safety of the malefactor from
(1) defensive or retaliating acts on the part of the victim, no opportunity being given to the latter to defend himself or to
retaliate; and

(2) Deliberate or conscious adoption of such means, method, or manner of execution. [39]
In this case, the hapless victims were merely drinking and singing in-front of the videoke machine when shot by the
appellant. The firing was so sudden and swift that they had no opportunity to defend themselves or to retaliate.
Furthermore, appellant's acts of using a gun and even going out of the videoke bar evidently show that he consciously
adopted means to ensure the execution of the crime.

In addition, the lower courts appropriately found appellant liable for the crime of Frustrated Murder.

A felony is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. [40]

Dr. Angel Cordero M.D. categorically said that De Luna could have died because of the wounds if the surgery was not
conducted timely.[41] Hence, appellant performed all the acts of execution which could have produced the crime of murder
as a consequence, but nevertheless, did not produce it by reason of a cause independent of his will, which is, in this case,
the timely and able medical attendance rendered to De Luna.

The defense of denial cannot be given

more weight over a witness'positive
identification

Appellant denies the accusations on the ground that he has no motive to kill Elizan and injure De Luna. This alibi is bereft
of merit. Intent is not synonymous with motive. Motive alone is not a proof and is hardly ever an essential element of a
crime.[42] As a general rule, proof of motive for the commission of the offense charged does not show guilt and absence of
proof of such motive does not establish the innocence of accused for the crime charged such as murder. [43] In Kummer v.
Peopled[44] this Court held that motive is irrelevant when the accused has been positively identified by an eyewitness.

Evidently, accused-appellant's intent to kill was established beyond reasonable doubt. This can be seen from his act of
shooting Elizan and De Luna from behind with a firearm while they were innocently singing and drinking. Intent to kill
was also manifest considering the number of gun shot wounds sustained by the victims. [45]

In the instant case, Pasana and De Luna positively identified accused-appellant as the person who fired shots during the
incident:

Pasana's testimony:

Q: Can you recall who among the five (5) went out?
A: Yes, Ma'am.

Q: Of the two (2) among the five (5) who went out, are these two (2) people or persons here in court right now?
A: Yes, Ma'am.

And who are these two (2) persons you are referring to, can you point it out to the Honorable Court if they are here
Q:
in [c]ourt right now?
A: That person, Ma'am.

Interpreter: Witness, Your Honor, is pointing to a person who earlier identified himself as Luisito Gaborne.
xxxx

Q: Point specifically, who among those persons?

A: That person, Ma'am.

Interpreter: Witness, Your Honor, is pointing to a person who identified himself earlier as Luisito Gaborne. [46]

De Luna's Testimony:

Q: How about the appearance of the guy whom you said holding a gun, can you recall?
A: I can recall him if he is inside the court, ma'am.

Q: Can you point it out to the court, the other guy whom you saw at the videoke bar?
A: Yes, ma'am, if I can go with him in a short distance, I can point him.

Q: Can you point him?

(The witness stood up and approach (sic) the accused' bench and pointed to a person and when asked his name
A:
answered to (sic): Luisito Gaborne)

Q: You said that there was also another guy by the window? (the court butt-in [sic])

THE COURT:

Q: Excuse me, this man who answered Luisito Gaborne was the one holding the fire arm?
A: Yes, your Honor.[47]
This Court gives the highest respect to the RTC's evaluation of the testimony of the witnesses, considering its unique
position in directly observing the demeanor of a witness on the stand. From its vantage point, the trial court is in the best
position to determine the truthfulness of witnesses.[48]

It is doctrinally entrenched in our jurisprudence[49] that the defense of denial is inherently weak because it can easily be
fabricated. Such defense becomes unworthy of merit if it is established only by the accused themselves and not by credible
persons. Thus, this Court agrees with the lower courts in giving the positive identification of the eyewitnesses more weight
than appellant's defense of denial.

Paraffin Tests are not conclusive

The positive identification made by the prosecution witnesses bears more weight than the negative paraffin test result
conducted the day after the incident.

Paraffin tests, in general-, have been rendered inconclusive by this Court. Scientific experts concur in the view that the
paraffin test was extremely unreliable for use. It can only establish the presence or absence of nitrates or nitrites on the
hand; however, the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of a
firearm; The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of
infallibility that a person has fired a gun, since nitrates are also admittedly found in substances other than gunpowder. [50]

In this case, prosecution witness, Pasana[51] and the victim himself, De Luna,[52] testified in the trial court that it was
indeed the appellant who was holding the gun during the incident. It should also be considered that appellant was arrested
the day after the incident.[53] Thus, it is possible for appellant to fire a gun and yet bear no traces of nitrate or gunpowder
as when the hands are bathed in perspiration or washed afterwards. [54]

Corpus delicti of the crime can be

established by testimony

With regard to the appreciation of the aggravating circumstance of the use of an unlicensed firearm, we agree with the trial
court and the appellate court that the same must be appreciated in the instant case. In People v. Lualhati, this Court ruled
that in crimes involving unlicensed firearm, the prosecution has the burden of proving the elements thereof, which are: (1)
the existence of the subject firearm and (2) the fact that the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess the same. [55]

Appellant's contention that the corpus delicti was not established for the reason that the firearm used was not presented
as evidence is not persuasive. In People v. Orehuela,[56] this Court held that the existence of the firearm can be established
by testimony, even without the presentation of the said firearm. In the present case, the testimonies of Pasana and De
Luna indubitably demonstrated the existence of the firearms. Furthermore, the certification[57] from the Philippine
National Police that appellant is not a firearm license holder of any caliber proves that he is not licensed to possess the
same. Thus, the prosecution was able to prove the existence of the firearm and that the appellant is not licensed to possess
the same notwithstanding the fact that the firearm used was not presented as evidence.

Illegal Possession of Firearm as an

aggravating circumstance
in the crimes of Murder and
Frustrated Murder

The CA appropriately appreciated the use of an unlicensed firearm as an aggravating circumstance in the crimes of
Murder and Frustrated Murder. Under R.A. No. 1059, use of loose firearm in the commission of a crime, like murder, shall
be considered as an aggravating circumstance.[58]

In view of the amendments introduced by R.A. No. 8294 and R.A. No. 10591, to Presidential Decree No. 1866, separate
prosecutions for homicide and illegal possession are no longer in order. Instead, illegal possession of firearm is merely to
be taken as an aggravating circumstance in the crime of murder. [59] It is clear from the foregoing that where murder
results from the use of an unlicensed firearm, the crime is not qualified illegal possession but, murder. In such a case, the
use of the unlicensed firearm is not considered as a separate crime but shall be appreciated as a mere aggravating
circumstance. Thus, where murder was committed, the penalty for illegal possession of firearms is no longer imposable
since it becomes merely a special aggravating circumstance.[60] The intent of Congress is to treat the offense of illegal
possession of firearm and the commission of homicide or murder with the use of unlicensed firearm as a single offense. [61]

In the case at hand, since it was proven that accused-appellant was not a licensed firearm holder,[62] and that he was
positively identified by the witnesses as the one who fired shots against the victims, the use of an unlicensed firearm in the
commission of the crimes of Murder and Frustrated Murder should be considered as an aggravating circumstance thereof.

The presence of such aggravating circumstance would have merited

the imposition of the death penalty for the crime of Murder. However, in view of R.A. No. 9346, we are mandated to
impose on appellant the penalty of reclusion perpetua without eligibility for parole.

Damages and civil liability

This Court resolves to modify the damages awarded by the appellate court in line with the recent
jurisprudence.[63] Appellant shall pay the Heirs of Sixto Elizan y Herrera P100,000.00 as civil indemnity, P100,000.00 as
moral damages, and PI00,000.00 as exemplary damages for the crime of Murder with the use of Unlicensed Firearm.

Appellant shall also be liable to pay P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as
exemplary damages for the crime of Frustrated Murder. In addition, interest at the rate of six percent (6%) per annum
shall be imposed on all monetary awards from date of finality of this Judgment until fully paid.

WHEREFORE, the 29 July 2013 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01183
is AFFIRMED with MODIFICATIONS. Appellant LUISITO GABORNE Y CINCO is found GUILTY beyond reasonable
doubt of the crime of Murder with the use of Unlicensed Firearm and shall suffer a penalty of Reclusion Perpetua, without
eligibility for parole and shall pay the Heirs of Sixto Elizan y Herrera P100,000.00 as civil indemnity, P1 00,000.00 as
moral damages, and P100,000.00 as exemplary damages; and of the crime of Frustrated Murder and is hereby sentenced
to suffer the indeterminate penalty ranging from eleven (11) years of Prision Mayor as minimum, to eighteen (18) years
of Reclusion Temporal as maximum and shall pay P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P75,000.00 as exemplary damages.

All monetary awards for damages shall earn interest at the legal rate of six percent (6%) per annum from the date of
finality of this judgment until fully paid.

In the service of his sentence, appellant, who is a detention prisoner, shall be credited with the entire period of his
preventive imprisonment.

SO ORDERED.
 Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council, GR 178552, Oct. 5,
2010

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure
the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007, 1 signed into law
on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner Southern Hemisphere Engagement Network, Inc., a non-
government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno
(KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and
Human Rights (CTUHR), represented by their respective officers 3 who are also bringing the action in their capacity as
citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding
Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP),
Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA),
Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by
their respective officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera,
Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col.
Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de
Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-
Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church People’s Response (PCPR), which were represented by their respective officers 5 who are also
bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),6 Senator
Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and prohibition
docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in
the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and
prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of the filing of
the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson,
and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto
Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members.
All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen.
Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support
agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of
Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering
Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners’ resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1,
Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in
excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an
actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at
the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.10

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of
the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.11

Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question
on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that
the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct
injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has
been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to
some burdens or penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some
actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to
the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring
supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government,
especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and
their status as citizens and taxpayers.

While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that petitioner has
experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal
legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the
proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under
RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have
been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons"
and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that
they have been branded as "enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners
have yet to show any connection between the purported "surveillance" and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante,
HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents’ alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines
(CPP) and its armed wing, the National People’s Army (NPA). The tagging, according to petitioners, is tantamount to the
effects of proscription without following the procedure under the law. 15 The petition of BAYAN-ST, et al. in G.R. No.
179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and
general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known
to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute
in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and
ready determination by resorting to sources whose accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the
course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in
encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and
so generally understood that they may be regarded as forming part of the common knowledge of every person. As the
common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no constructive knowledge. 16 (emphasis and underscoring
supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners’ apprehension is
insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them,
three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called
tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their
supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372
would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America 17 (US) and
the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations.
The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales
that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist
organizations.19 Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP
and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect
for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and
freely without any threat of, much less an actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo,
Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan, 20 urged the government to resume peace negotiations with the
NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and
EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration 21 of resuming peace
talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA
consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in the questions being
raised.22 Of recent development is the filing of the first case for proscription under Section 1723 of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group. 24 Petitioner-organizations do
not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past
rebellion charges against them.

In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List
Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro
Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro
Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of
being front organizations for the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA,
PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. 26

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006,
prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the
Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the
enactment thereof make it easier to charge a person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It
cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the
Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained
under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its
members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts
against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or
detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks
locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that
she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former
Senator Wigberto Tañada and Senator Sergio Osmeña III, who cite their being respectively a human rights advocate and
an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been
pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently
state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching
implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be
charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi.
Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the law’s enforcement. To
rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the
general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only
when there is an exercise of the spending or taxing power of Congress, 28 whereas citizen standing must rest on direct and
personal interest in the proceeding.29

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while
none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus
standi. Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.30 (emphasis and
underscoring supplied.)

As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual cases or
controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. 32

Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.
The controversy must be justiciable—definite and concrete, touching on the legal relations of parties having adverse legal
interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a
denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought
to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and
underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was
held to be premature as it was tacked on uncertain, contingent events. 34 Similarly, a petition that fails to allege that an
application for a license to operate a radio or television station has been denied or granted by the authorities does not
present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.35

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections 36 for failure to cite any specific
affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v.
Commission on Elections,37 to rule on the religious freedom claim of the therein petitioners based merely on a perceived
potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual
controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that
there must be sufficient facts to enable the Court to intelligently adjudicate the issues. 38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-enforcement review of a
criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not
be required to await and undergo a criminal prosecution as the sole means of seeking relief." 40 The plaintiffs therein filed
an action before a federal court to assail the constitutionality of the material support statute, 18 U.S.C. §2339B (a)
(1),41 proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist
organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such
organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that
the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable
controversy.42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372
forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established,
much less a real and existing one.

Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way
approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory
opinion, which is not its function.43

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no
original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the
petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond
judicial review for lack of ripeness. 44

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of
the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law
may be abused.45 Allegations of abuse must be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism 46 under RA
9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to
give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the
prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in
the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on
whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to
free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and Corrupt
Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness
doctrines have special application only to free-speech cases," and are "not appropriate for testing the validity of penal
statutes."50 It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not
vague.51

While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial invalidation of
criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the
therein subject election offense53 under the Voter’s Registration Act of 1996, with which the therein petitioners were
charged, is couched in precise language. 54

The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in the Estrada case, where
the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of
the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as
opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad
do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which
was quoted at length in the main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling
effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all
society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very
existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing
the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the
Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek
to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is
said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct
of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to
do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to
whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has
been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a
particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on
its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be
applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings
and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with
which the defendant is charged.56 (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for
a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech
regulation (under a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose
to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a
statute prohibits and will accordingly refrain from that behavior, even though some of it is protected. 59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is
an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain
from constitutionally protected speech or activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount
a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected
speech, the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale is inapplicable to
plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected rights. 63

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored
that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed." 64

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights
may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution
would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is
allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before
judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my
opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal
with crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute
on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is
clear as applied to him.65 (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of
protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her;
if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and
can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s "very
existence may cause others not before the court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.66 (Emphasis in the
original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,67 observed that the US
Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment,68 and that
claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed against a
law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes
are justified by the "transcendent value to all society of constitutionally protected expression." 71

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness
analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge against
them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-
Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face
and in its entirety."72 It stressed that "statutes found vague as a matter of due process typically are invalidated only 'as
applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be
examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes are
unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty under law." 75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining
the constitutionality of criminal statutes. In at least three cases, 76 the Court brought the doctrine into play in analyzing an
ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under
Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the
petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the
therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be
culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of
widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce
the government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of
"unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some form of expression
protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to
trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the
government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a
protected speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an
element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in
declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in
negotiating a deceitful transaction. An analogy in one U.S. case78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only"
hardly means that the law should be analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to
punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in
the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or
writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken,
written, or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and
conspiracies deemed injurious to society.79 (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited
conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as
applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on
vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in
its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged
on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be
required to await and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA
9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court
reminds litigants that judicial power neither contemplates speculative counseling on a statute’s future effect on
hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.
 Estrada vs. Sandiganbayan, GR 148560, Nov. 19, 2001

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual
from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating
the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity" must be allowed
to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties
is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to
withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any
of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that
would compel obeisance to its collective wisdom and inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying
with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-
political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in
threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the
law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and
dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to
its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and
Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard
in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised
Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be
informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are
Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in connection with any government contract or project or by
reason of the office or position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of
its subdivisions, agencies or instrumentalities, or government 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 future employment in any business enterprise or undertaking;
 (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of
the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - 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 overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The
court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State
(underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed
as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562,
inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct
and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The
Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary
investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to
file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were
only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of
probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were
never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable
cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001
petitioner's motion for reconsideration was denied by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged
therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness,
and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed
its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the
Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the
instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires
less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process;
and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of
Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle
that a legislative measure is presumed to be in harmony with the Constitution. 3 Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional
adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch
of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based
on the deference the judicial branch accords to its coordinate branch - the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is
ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and
for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the
acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with
caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality,
invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain
whether an interpretation is fairly possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon 4 we held that as long as there is some basis for the decision of the court,
the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet
the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it
must be struck down on sight lest the positive commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute.
He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a
showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by
Justice Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the instant case to discharge his
burden and overcome the presumption of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the
accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and
conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity.
Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives
by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following
overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions,
agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) 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 future employment in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of
official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least
₱50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct
would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its
application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the
realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes
is the act of a public officer in amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00 through a series or
combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the
various elements of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC 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 PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, 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, did then and there willfully, 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 (₱4,097,804,173.17), 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 (₱545,000,000.00),
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 connection 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;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR

INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS (₱130,000,000.00), more or less, representing a portion of the TWO
HUNDRED MILLION PESOS (₱200,000,000.00) tobacco excise tax share allocated for the province of
Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN
DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS,
and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO
MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION
SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (₱744,612,450.00),
RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY
SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND
FIFTY CENTAVOS (₱1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN
THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (₱189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME
PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE
VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,

KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in
his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily
understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal
assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent
defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and
"series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the
word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation
against him, hence, violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general
terms are used therein, or because of the employment of terms without defining them; 6 much less do we have to define
every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define
each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the
legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification,7 unless it is evident that the legislature intended a technical or special
legal meaning to those words.8 The intention of the lawmakers - who are, ordinarily, untrained philologists and
lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted definition of the words "combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close
relationship as to obscure individual characters.

Series - a number of things or events of the same class coming one after another in spatial and temporal succession.

That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely
evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES
OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we
actually mean to say, if there are two or more means, we mean to say that number one and two or number one and
something else are included, how about a series of the same act? For example, through misappropriation, conversion,
misuse, will these be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA: Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

REP. ISIDRO: When we say combination, it seems that -

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.

REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. GARCIA: A series.

REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem to say that two
or more, di ba?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or
criminal acts. So x x x x

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term "series?"

REP. GARCIA: Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.

REP. ISIDRO: When you say combination, two different?

REP. GARCIA: Yes.

SEN. TANADA: Two different.

REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already result
in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to read, therefore:
"or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series." Anyway, the
criminal acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.

THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say "acts of
plunder" there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different
categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and
fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same
category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all
of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in specifically providing for it in the law.

As for "pattern," we agree with the observations of the Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in
relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal
acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire
ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common
goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which
the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In
the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the
overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to
penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The
doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a
criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand
what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on
its face, i.e., that which cannot be clarified either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution
in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of
what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.10 But the doctrine does not apply as against legislations that are merely
couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction,
while no challenge may be mounted as against the second whenever directed against such activities. 11 With more reason,
the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently
definite warning as to the proscribed conduct when measured by common understanding and practice. 12 It must be
stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not
be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of
the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law."13 The overbreadth doctrine, on the other hand, decrees that "a governmental purpose
may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." 14
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling
effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all
society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity."15 The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very
existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing
the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." 16 In Broadrick v.
Oklahoma,17 the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason,
it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the Act would be valid." 18 As for the vagueness
doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to
the conduct of others."19

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to
do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to
whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its application might be unconstitutional." 20 As has
been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a
particular defendant."21 Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law
on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be
applied to parties not before the Court whose activities are constitutionally protected. 22 It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings
and in sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort," 25 and is generally disfavored.26 In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with
which the defendant is charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed
and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by
dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the
law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will
take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder
Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who
voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal
implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize the point that
courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details,
and is susceptible of no reasonable construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and
elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to
penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of
"unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and,
(c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function
and that their right to be informed of the nature and cause of the accusation against them was violated because they were
left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer
from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and
inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the
statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment
charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act
of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x
(Section 3 [e], Rep. Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in
the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or
preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation.
Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the
immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of
plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all
other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights,
and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is
entitled to an acquittal.29 The use of the "reasonable doubt" standard is indispensable to command the respect and
confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not
diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to
the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every
fact necessary to constitute the crime with which he is charged. 30 The following exchanges between Rep. Rodolfo Albano
and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating -
 DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must
be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the
information, does that not work against the right of the accused especially so if the amount committed, say, by
falsification is less than ₱100 million, but the totality of the crime committed is ₱100 million since there is malversation,
bribery, falsification of public document, coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt.
What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the information – three pairs of pants, pieces of
jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for
which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what
is required to be proved beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is
very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery,
he was able to accumulate only ₱50,000 and in the crime of extortion, he was only able to accumulate ₱1 million. Now,
when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it
is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need
to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount
involved is ₱100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that could not be proved, so, we will sum up the
amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved
beyond reasonable doubt, is ₱100 million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in
the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or
element necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception
of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts
sufficient to form a combination or series which would constitute a pattern and involving an amount of at least
₱50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by
the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth.
To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids
on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at
least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least ₱50,000,000.00.31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing
hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the
predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This
conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series
of

overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill
gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it
necessarily follows with the establishment of a series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important
element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive
element of the crime," such that without it the accused cannot be convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not
plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without
applying Section 4, can you not have a conviction under the Plunder Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation
of the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt
on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are
concerned that you do not have to go that far by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder
and that cannot be avoided by the prosecution. 32

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood
from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and
opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a
purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only
operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without
invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond
reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced
by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the
law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for
a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is
held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances
shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some
of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be
treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of
criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for
plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully,
unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the
statute is void, petitioner cites the following remarks of Senator Tañada made during the deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for each and every
individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of
plunder.33

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which,
in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases?

SENATOR TAÑADA: Yes, Mr. President . . . 34

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove
each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt
a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the
pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown.

Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by
the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-
Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that §2 refers to "any person who participates with the said public
officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that
it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the
generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean." 35

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the
affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these
groups of heinous crimes, this Court held in People v. Echegaray:36

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 victim is treated like an animal and utterly dehumanized as to completely disrupt the normal
course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing
acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the
case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal 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 or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and
carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts
in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop
and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the
government and impoverished the population, the Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of
society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic
services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat
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 and repercussions of crimes like qualified bribery, destructive arson resulting in death, and
drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause
further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the
acts punished are inherently immoral or inherently wrong, they are mala in se37 and it does not matter that such acts are
punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing
Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds.
Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been
eternally consigned by People v. Echegaray38 to the archives of jurisprudential history. The declaration of this Court
therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect,
assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken
its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as
unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic
and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly
tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the
moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal
the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual
prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people
that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and
prejudices, shall we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA
7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of
merit.

SO ORDERED.