After over four years in hospital detention, former President Gloria Macapagal Arroyo walked away, a free woman, after the Supreme Court had sustained her demurrer to evidence that the Sandiganbayan had earlier rejected. For the purposes of the law, she has been acquitted of the charges. And under the guarantee of the Constitution against double-jeopardy she cannot be charged with the same offense, arising out of the same facts. Many lauded the decision. Others rued the fact that PGMA was now a free woman. I personally think Justice Luc Bersamin wrote a good ponencia—and that is exactly my lament. National attention has been riveted on the personalities—PGMA, the Ombudsman, the dissenters—that we have not given the ponencia the serious, studious attention that it deserves.
Gloria Macapagal Arroyo was charged with having committed plunder by having conspired with the former chairman and members of the Philippine Charity Sweepstakes Office board in “raiding the public treasury” through the payment of “excessive” Confidential-Intelligence Funds. Chairman Rosario Uriarte formally requested the President for authority to draw CIFs, and PGMA at that time affixed a marginal note: “Ok.” That, charged the Ombudsman, is where the culpability of PGMA lay—and for that, she languished in hospital detention for almost the entire duration of the PNoy presidency!
On conspiracy, the perspicacious Justice Luc taught that mere “agreement to cooperate is not enough to constitute one a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose.” No matter that one nods in approval, slaps his knees in glee at a dastardly plan or is present at all planning meetings, he cannot be a conspirator until he performs at least one overt act in furtherance of the conspiracy. So what then was the overt act that made PGMA, to the mind of the Ombudsman, a conspirator? It was the marginal note: “Ok”—only that, and nothing more (quoth the Raven?). But why should approving a request for CIF be an overt act in pursuance of the crime of plunder? It is exactly the job of the President to approve such requests.
And that is where the 11 justices found the Sandiganbayan’s grave abuse of discretion. In fact, the unjustified, abusive and capricious “leap of reason” is evident from the Sandiganbayan’s resolution: “What accused Arroyo forgets is that although she did not actually cause any ‘overt act’ of illegally amassing CIF funds, her act of approving not only the additional CIF funds but also their releases, aided and abetted accused Uriarte’s successful raids on the public treasury. Accused Arroyo is therefore rightly charged as a co-conspirator of Uriarte who accumulated the CIF funds. Moreover, the performance of an over act is not indispensable when the conspirator is a mastermind.” And no one who has forsaken logic cannot but be taken aback by that glaring sophistry. Where did that come from—the conclusion that PGMA was the mastermind? From the fact that she was President at the time—and that, immediately after the Sandiganbayan itself found that it was Chairman Uriarte who had “accumulated the CIF funds?”
Plunder is committed when a public officer amasses, acquires or accumulates ill-gotten wealth. And the problem with both the Ombudsman and the Sandiganbayan was that they did not identify—in fact, could not identify—who the supposed “main plunderer” was. Nowhere was it alleged that GMA amassed, acquired or accumulated ill-gotten wealth. Others can conspire only with the main plunderer, and where no main plunderer is identified, with whom did all the others conspire? It is likewise not true that when the CIFs were requested, Uriarte submitted nothing more for the President’s “ok” than a bare request for fund release. There were specific purposes stated: to determine whether donated medicines ended up in drug stores illegally; to look into the unwarranted or unofficial use of ambulances donated by the PCSO to beneficiaries; to investigate the unauthorized expenditures of endowment funds for charity patients and organizations and other irregularities.
Without a doubt, what won a convincing majority of the Supreme Court to vote in favor of PGMA’s liberty was the fact that there was absolutely no evidence that either GMA or Benigno Aguas (another petitioner in the consolidated cases) or even Uriarte had amassed, accumulated or acquired ill-gotten wealth. And, quite clearly, that belongs to the essence of plunder. It is, in the words of Justice Luc, “the defining and definitive aspect of the criminal prosecution.” There is no more eloquent proof of this than the testimony of the Prosecution’s key witness, lawyer Aleta Tolentino who was asked by one of the justices of the Sandiganbayan: “Of course you do not know where is this ill-gotten wealth now?” and who candidly answered: “Yes, Your Honors. We do not know whether they saved it, squandered it, or what. We do not know, Your Honor.” And if you do not know, then you cannot say that it was amassed, accumulated or acquired! The logic is that straightforward.
The predicate act of plunder—the manner that plunder was committed by PGMA—according to the Ombudsman, was “raid on the public treasury.” But for such a raid to take place, it is not the usual meaning of “raid” that controls, but what the hermeneutics of the term suggests, reading it in the context of other terms within the same plunder statute: It is required that the raider personally benefit from the raid—and of that, there was absolutely no proof.
I am convinced that the most pernicious threat to the rule of law is the bigotry and prejudice of citizens. Immediately after the public received news of the Supreme Court’s decision, there were posts on social media decrying a failure of justice. But all that whining is really a failure of reason. They came even before serious heed was given the learned ponencia of Justice Luc. And as important as the fact that one who has been unjustly and vengefully deprived of her liberties for the past years is now free are the lessons on the law of plunder that the high court has taught the nation, as well as the illustration of just how complex reasoning in jurisprudence can be—and that it definitely is not for the “intellectually challenged!”
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com