Hopeless for the gov’t to get the plunder money from Erap
Hopeless for the gov’t to get
the plunder money from Erap
Privilege
Spits
By BERTENI C.
CAUSING
Article 1144
of the Civil Code declares that all rights of actions based judgment must be
brought within ten (10) years. Else, the
right established in the same decision cannot be demanded.
Article 1144
states:
“Art. 1144.
The following actions must be brought within ten years from the time the right
of action accrues:
“(1) Upon a
written contract;
“(2) Upon an
obligation created by law;
“(3) Upon a
judgment. (n)”
Please note
that the law does not distinguish as to what kinds of action that can be
demanded or cannot be demanded beyond ten (10) years.
If that is so,
it can be argued that any kind of judgment cannot be enforced more than ten
(10) years.
It is
therefore interesting to ask: CAN A JUDGMENT GIVING THE STATE THE RIGHT TO
IMPRISON A CONVICTED PERSON BE STILL ENFORCED AFTER TEN (10) YEARS THE SAME
JUDGMENT BECAME FINAL?
With this
question, I am now putting on the table of discussion this Plunder Case in
Criminal Case No. 26558, for Plunder, Special Division of the Sandiganbayan,
entitled “People of the Philippines Joseph Ejercito Estrada, et al.”
The judgment
in this plunder case was rendered on September 12, 2007. Erap filed a motion for reconsideration of
the decision.
But later,
when then national administrator-in-fact Gloria Macapagal Arroyo offered him a
pardon, whether conditional or absolute is not material to this column article,
Erap withdrew his motion for reconsideration and this act made the judgment
final and executory on September 12, 2007.
The
significance of determining the date of finality is in the fact and law that
state that it is in the date of finality that begins the counting of the period
of prescription or of the period before the same decision is lapsed for
implementation.
Before
proceeding, let us revisit the exact words stated by the Special Division of
the Sandiganbayan in the dispositive portion that stated its findings of guilt,
stated the punishment meted, and stated the amount awarded against the accused
and in favor of the State of the Philippines.
The said
dispositive portion stated:
“WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER defined in and penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the prosecution to prove and establish their guilt beyond reasonable doubt, the Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.
“The penalty
imposable for the crime of plunder under Republic Act No. 7080, as amended by
Republic Act No. 7659, is Reclusion Perpetua to Death. There being no
aggravating or mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article 63 of the Revised Penal Code. Accordingly,
accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer
the penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute
disqualification.
“The period
within which accused Former President Joseph Ejercito Estrada has been under
detention shall be credited to him in full as long as he agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon convicted
prisoners.
“Moreover, in
accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act
No. 7659, the Court hereby declares the forfeiture in favor of the government
of the following:
“(1) The total
amount of Five Hundred Forty Two Million Seven Hundred Ninety One Thousand
Pesos (P545,291,000.00), with interest and income earned, inclusive of the
amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the name
and account of the Erap Muslim Youth Foundation.
“(2) The
amount of One Hundred Eighty Nine Million Pesos (P189,000,000.00), inclusive of
interests and income earned, deposited in the Jose Velarde account.
“(3) The real
property consisting of a house and lot dubbed as "Boracay Mansion"
located at #100 11th Street, New Manila, Quezon City.
“The cash
bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S.
Serapio are hereby ordered cancelled and released to the said accused or their
duly authorized representatives upon presentation of the original receipt
evidencing payment thereof and subject to the usual accounting and auditing
procedures. Likewise, the hold-departure orders issued against the said accused
are hereby recalled and declared functus oficio.
“SO ORDERED.”
It is noted
that the Supreme Court, through the vote of 11 in favor and 3 against, declared
the pardon signed by Gloria Macapagal-Arroyo as absolute so that I will not
discuss about it.
What I am
discussing here is the effectiveness of the forfeiture order now that we are
nearing the completion of the period of ten (10) years and this falls on
September 11, 2017 for the right of action from the same decision to be still
implemented by the State of the Philippines.
The pardon
given by Arroyo did not extinguish the forfeiture obligations. It only erased
the criminal liability in terms of imprisonment and fines. Forfeiture is not fine.
I learned from
the online websites that of the three items ordered forfeited, only one has
been complied with and this is the confiscation of the Boracay Mansion located
at No. 100 11th Avenue, New Manila, Quezon City.
For the
purpose of clarity, let me re-state the decision on the order of forfeiture, to
wit:
“Moreover, in
accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act
No. 7659, the Court hereby declares the forfeiture in favor of the government
of the following:
“(1) The total
amount of Five Hundred Forty Two Million Seven Hundred Ninety One Thousand Pesos
(P545,291,000.00), with interest and income earned, inclusive of the amount of
Two Hundred Million Pesos (P200,000,000.00), deposited in the name and account
of the Erap Muslim Youth Foundation.
“(2) The
amount of One Hundred Eighty Nine Million Pesos (P189,000,000.00), inclusive of
interests and income earned, deposited in the Jose Velarde account.
“(3) The real
property consisting of a house and lot dubbed as "Boracay Mansion"
located at #100 11th Street, New Manila, Quezon City.”
I learned that
the State has not recovered all amounts stated in the forfeiture of the
so-called Erap Muslim Youth Foundation money.
I also learned
that the State has not recovered anything from the Jose Velarde account.
I have learned
that the forfeiture of the P189,000,000.00 amount and interests and income
earned therefrom as deposited in the Jose Velarde account has not yet been
enforced.
Only a little
more than seven (7) months are left before the State can enforce the balance
from the Erap Muslim Youth foundation because only about 200 million pesos were
recovered and enforce the collection from the said Jose Velarde account.
Can the State
still recover these forfeited money after September 11, 2017?
My position in
this issue is that the State can no longer recover if it cannot enforce the
same until September 11, 2017.
Article 1144
must apply equally on the people and on the State because it is a law and any
law is a commitment of the State that must be followed by the State.
There is also
no apparent mistake committed by any agent of the State that led to the failure
to enforce the same forfeiture. The only
exemption from the lapsing of the right is when there is a mistake on the part
of the agent of the State. In this case,
the agent of the State is the sheriff assigned to enforce the judgment.
However, from
now on, the Sheriff must now exert his ingenuity and draw his genius how to
discover funds that have come from Erap Muslim Youth Foundation funds of 545,291,000.00
pesos wherever any part of which can be found.
The burden,
however, of proving first that a particular money came from the same fund of
545,291,000.00 pesos lies in the hands of the sheriff, who should file a motion
before the court to prove that a particular bank account contained the money
that came from the same 545,291,000.00 pesos.
The same is
the problem with regard to the 189,000,000.00 pesos that was said to have been
deposited in a Jose Velarde account.
The sheriff
must be genius enough to prove that a particular fund he may have found is
traceable to the same 189,000.000.00 fund of Jose Velarde.
But judging on
experience as a private practitioner, it is like punching the moon for the
sheriff to be able to obey the mandate of the Sandiganbayan Special Division.
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