Neil G.

SALAAN October 1, 2020

Section 4 Special Laws

1. Is the crime plunder mala prohibita or mala in se? Why?

Plunder any public officer who, by himself or in connivance with members of his
family, relatives by affinity and consaguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts aggregate in the amount of at least fifty million pesos
(P50,000,000.00).
It is mala in se, although punishable under special law, because it is inherently
evil, being included among the heinous crimes punishable with reclusion perpetuated
and its constitutive crimes are mala in se, such as malversation of public funds,
bribery and monopolies and combinations.
The acts enumerated in Section 1(d) are mostly defined and penalized by the
Revised Penal Code, e.g. malversation, estafa, bribery and other crimes committed by
public officers.  As such, they are by nature mala in se crimes.  Since intent is an
essential element of these crimes, then, with more reason that criminal intent be
established in plunder which, under R.A. No. 7659, is one of the heinous crimes as
pronounced in one of its whereas clauses.
The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal
by special law does not necessarily make the same mala prohibita where criminal intent
is not essential, although the term refers generally to acts made criminal by special
laws.  For there is a marked difference between the two.  According to a well-known
author on criminal law:

There is a distinction between crimes which are mala in se, or wrongful from their
nature, such as theft, rape, homicide, etc., and those that are mala prohibita, or wrong
merely because prohibited by statute, such as illegal possession of firearms.

Crimes mala in se are those so serious in their effects on society as to call for almost
unanimous condemnation of its members; while crimes mala prohibita are violations of
mere rules of convenience designed to secure a more orderly regulation of the affairs of
society.  
The component acts constituting plunder, a heinous crime, being inherently
wrongful and immoral, are patently mala in se, even if punished by a special law and
accordingly, criminal intent must clearly be established together with the other elements
of the crime; otherwise, no crime is committed.  By eliminating mens rea, R.A. 7080
does not require the prosecution to prove beyond reasonable doubt the component acts
constituting plunder and imposes a lesser burden of proof on the prosecution, thus
paving the way for the imposition of the penalty of reclusion perpetua to death on the
accused, in plain violation of the due process and equal protection clauses of the
Constitution. Evidently, the authority of the legislature to omit the element of scienter in
the proof of a crime refers to regulatory measures in the exercise of police power, where
the emphasis of the law is to secure a more orderly regulations of the offense of society,
rather than the punishment of the crimes.  So that in mala prohibita prosecutions, the
element of criminal intent is a requirement for conviction and must be provided in the
special law penalizing what are traditionally mala in se crimes.

2. What are the three (3) elements of plunder under the R.A 7080?

First - 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.

Second - That he amassed, accumulated or acquired ill-gotten wealth through a

combination or series of the following overt or criminal acts:
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,

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;

3. By the illegal or fraudulent conveyance or disposition of assets belonging to

government.

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;
 Third - That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00 (Joseph Ejercito Estrada vs.
Sandiganbayan, G.R. No. 148560, November 19, 2001).

The damages suffered by the government in diverting the road from the poblacion to
the farm of the accused shall not be considered in determining if plunder is
committed. What is important is the amount of ill-gotten wealth acquired by the
public officer and not the amount of damage suffered by the government.