148560 : January 29, 2002 : Atty.

Villara

ma : En Banc

[G.R. No. 148560.January 29, 2002]

ESTRADA vs. SANDIGANBAYAN et al.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this
Court dated JAN 29 2002.
G.R. No. 148560(Joseph Ejercito Estrada vs. Sandiganbayan (3r
d Division) and the People of the Philippines.)
Considering the motion for reconsideration filed by petitioner
Joseph Ejercito Estrada and finding nothing therein that in an
y way compels a modification of the decision rendered in this
case on November 19, 2001, the Court, by vote of 10 to 4 o
f its members, with one abstention, RESOLVED to DENY with
finality the aforesaid motion for reconsideration, as well as pet
itioner's motion for oral arguments, for lack of merit.
Davide, Jr. C.J., and Bellosillo, Melo, Puno, Vitug, Mendoza, Pa
nganiban, Quisumbing, Buena, and De Leon, JJ. reiterate their
votes to dismiss the petition in this case. In addition, Mendoz
a, J. filed a separate opinion (hereto attached) in which David
e, Jr., C.J.,and Bellosillo, Melo, Puno, Vitug, Quisumbing, Buena
and De Leon, Jr., JJ., concur.
Panganiban, J., reiterates his concurring opinion in the main c
ase and holds that it is unnecessary to rule on whether, as c
ontended by petitioner, the Anti-Plunder Law should initially b
e presumed invalid for allegedly derogating fundamental right
s, because the State has shown - and the Court has already
upheld - its constitutionality.
Kapunan, Pardo, Ynares-Santiago, and Sandoval-Gutierrez, JJ.,m
aintain their respective dissents.
Carpio, J., reiterates that he takes no part, having been one o
f the complainants before the Office of the Ombudsman.
Considering that petitioner's motions for reconsideration and f
or oral arguments have been denied with finality, no further
pleadings shall be entertained by this Court.
SEPARATE OPINION

MENDOZA, J., concurring in the denial of the motion for reco

nsideration:
Petitioner moves for a reconsideration of the decision rendere
d in this case on November 19, 2001. He makes several argu
ments which can be reduced to two propositions. First, he co
ntends that a facial review of the Anti-Plunder Law is required
because (1) the law imposes the death penalty; (2) where a
penal law affects fundamental rights, the law is presumed voi
d and the government has the burden of showingthat it is va
lid; (3) the provisions of the Anti-Plunder Law are not severab
le so that, if any provision is void, the whole statute is void,
petitioner invoking in this connection the principle that no on
e can be prosecuted except under a valid law. Second,petition
er contends that (1) the provisions of the Anti-Plunder Law un
der which he is being prosecuted are vague and overbroad a
nd their vagueness cannot be cured either by reference to th
e specific allegations of the Amended Information or by judici
al construction and (2) the provisions in question violate the
Due Process and Equal Protection guarantees of the Constituti
on.
These contentions will be dealt with in Part I and Part II in th
e order in which they are made. Then, in Part III, the implicat
ions of adopting petitioner's theory will be discussed.
I.ON PETITIONER'S CLAIM THAT THE ANTI-PLUMBER LAW MU
ST BE
REVIEWED NOT ONLY AS APPLIED TO HIM BUT ALSO AS AP
PLIED
TO OTHERS TO DETERMINE THE VALIDITY OF THAT LAW
The question is whether petitioner can assail R.A. No. 7080 o
n the ground that as applied to other persons it is unconstitu
tional for being vague and overbroad. The question arises in
the following context. Section 2, in relation to §1(d), of R.A. N
o. 7080, otherwise known as the Anti-Plunder Law, makes it a
crime for any public officer, directly or indirectly, to "amass,
accumulate or acquire . . . any asset, property, business enter
prise or material possession" amounting to at least P50 millio
n, through a "combination or series" of any of the following
overt or criminal acts:
1) Through misappropriation, conversion, misuse, or m
alversation of public funds or raids on the public treasury.
2) By receiving, directly or indirectly, an commission,
gift, share, percentage, kickbacks or any other form of pecuni
ary 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 officer concerned;
3) By the illegal or fraudulent conveyance or dispositi
on of assets belonging to the National Government or any of
its subdivisions, agencies or instrumentalities or government-o
wned or controlled corporations and their subsidiaries.
4) By Obtaining, receiving or accepting directly or ind
irectly any shares of stock, equity or any other form of intere
st 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 s
pecial interests; or
6) By taking undue advantage or official position, aut
hority, 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 Phili
ppines.
Petitioner is charged with violation of §2, in relation to §1(d),
subparagraphs (1) and (2) of the law as above quoted. The q
uestion is whether he can assail the constitutionality of §1(d),
subparagraphs (3), (4), (5) and (6) as well, on the theory that,
if these provisions are invalid, there is no law under which pe
titioner can be prosecuted. The question should be answered
in the negative.
A. This Case is Governed by the General Rule
There are two types of constitutional challenges: "as-applied"
challenges and "on-its-face" challenges. As-applied challenges
constitute the general rule. The application of this rule, which
governs this case, is exemplified by Tan v. People[1]cralaw in w
hich it was held that a person accused of violating P.D. No. 7
05, §68, which prohibits the possession of lumber without per
mit from the Bureau of Forest Development, cannot question
its validity insofar as it also prohibits the unauthorized possess
ion of other "forest products" on the ground that the definitio
n of the latter term is so broad that it includes even the mer
e possession of firewood, bark, honey, beeswax, grass, shrubs,
and flowering plants. In rejecting the facial challenge to the la
w, this Court held that as the accused were charged with viol
ation of the part of the order relating to the unauthorized po
ssession of "lumber," they could not assail its other provisions.
It was stated: "[P]etitioners were not charged with the [unlaw
ful] possession of firewood, bark, honey, beeswax, [or] grass, s
hrub, the 'associated water' or fish; thus, the inclusion of any
of there enumerated items in EO 277 is absolutely of no con
cern to petitioners. They are not asserting a legal right for wh
ich they are entitled to a judicial determination at this time." [2]
cralaw
Indeed, it has been pointed out hat "procedures for testing th
e constitutionality of a statue 'on its face'. . . are fundamental
ly at odds with the function of courts in our constitutional pla
n."[3]cralaw When an accused is guilty of conduct that can con
stitutionally be prohibited and that the State has endeavored
to prohibit, the State should be able to inflict its punishment.
Such punishment violates no personal right of the accused. A
ccordingly, as the enforcement of the Anti-Plunder Law is not
alleged to produce a chilling effect on freedom of speech or
religion or some "fundamental rights" to be presently discusse
d, only such of its provisions can be challenged by petitioner
as are sought to be applied to him.Petitioner cannot challeng
e the entire statute on its face. A contrary rule would permit
litigation to turn on abstract hypothetical applications of a sta
tute and disregard the wise limits placed on the judicial powe
r by the Constitution. As Justice Laurel stressed in Angara v. E
lectoral Commission,[4]cralaw "the power of judicial review is li
mited to actual cases and controversies . . .and limited further
to the constitutional question raised or the very lis mota pre
sented."
B. This Case Does not Come Within the Exception
Permitting Facial Challenges to Statutes
"Facial" challenges are the exceptions. They are made whenev
er it is alleged that enforcement of a statute produces a chilli
ng or inhibitory effect on the exercise of protected freedoms
because of the vagueness or overbreadth of the provisions of
such statute. Put in another way, claims of facial overbreadth
alone, when invoked against ordinary criminal laws like the An
ti-Plunder Law, are insufficient to move a court to examine th
e statute on its face. It can only be reviewed as applied to th
e challenger's conduct.[5]cralaw The same rule applies to claim
s of vagueness. It is equally settled that "a plaintiff who enga
ges in some conduct that is clearly proscribed cannot complai
n of the vagueness of the law as applied to the conduct of
others."[6]cralaw
In free speech or First Amendment cases, the rule is different
because of the chilling effect which enforcement of the statut
e might have on the exercise of protected freedoms. This rea
son is totally absent in the case of ordinary penal laws, like t
he Anti-Plunder Law, whose deterrent effect is precisely a reas
on for their enactment. Hence, we declared in this case that "
the doctrines of strict scrutiny, overbreadth and vagueness are
analytical tools for testing 'on their faces' statutes in free spe
ech cases or, as they are called in American law, First Amend
ment cases [and therefore] cannot be made to do service wh
en what is involved is a criminal statute."
Petitioner's counsel disagrees and says that "this holding goes
against the grain of American jurisprudence" and that in fact
"American law reports are full of decisions where either the o
verbreadth or vagueness doctrines have been used to invalida
te non-free speech statutes on their faces." Petitioner cites a
hodgepodge of cases decided by the U.S. Supreme Court to
support his contention.
Before discussing these cases, let it be clearly stated that, whe
n we said that "the doctrines of strict scrutiny, overbreadth an
d vagueness are analytical tools for testing 'on their faces' sta
tutes in free speech cases or, as they are called in American l
aw, First Amendment cases [and therefore] cannot be made t
o do service when what is involved is a criminal statute," we
did not mean to suggest that the doctrines do not apply to
criminal statutes at all. They do, although they do not justify
a facial challenge, but only an as-applied challenge, to those
statutes. Parties can only challenge such provisions of the stat
utes as applied to them. Neither did we mean to suggest tha
t the doctrines justify facial challenges only in free speech or
First Amendment cases.To be sure, they also justify facial chall
enges in cases under the Due Process and Equal Protection C
lauses of the Constitution with respect to so-called "fundamen
tal rights." In short, a facial challenge, as distinguished from a
s-applied challenge, may be made on the ground that, becau
se of vagueness or overbreadth, a statute has a chilling effect
on freedom of speech or religion or other fundamental right
s. But the doctrines cannot be invoked to justify a facial chall
enge to statute where no interest of speech or religion or fu
ndamental freedom is involved, as when what is being enforc
ed is an ordinary criminal statute like the Anti-Plunder law.
Given this rule it will be seen that the cases cited by petition
er's counsel to support his claim that "American reports are f
ull of decisions where either the overbreadth or vagueness do
ctrines have been used to invalidate non-free speech statutes
of their faces" do not apply to the present case. Brown v. Lo
uisiana[7]cralaw and Shuttlesworth v. Birmingham,[8]cralaw which
counsel cites, although arising from prosecutions for breach of
the peace, actually involved free speech rights or expressive
activities, consisting of the right to hold protests and demonst
rations in public places. They are not cases in which ordinary
criminal statutes were declared void on their faces.Indeed, as
stated in Broaderick v. Oklahoma,[9]cralaw in explaining the bre
ach-of-peace cases,
the plain import of our cases is, at the very least, the facial o
verbreadth adjudications an exception to our traditional rules
of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbi
ds the State to sanction moves from "pure speech" towards c
onduct and that conduct - even if expressive - falls within the
scope of otherwise valid criminal laws that reflect legitimate s
tate interests in maintaining comprehensive controls over harm
ful, constitutionally, unprotected conduct. Although such laws, i
f too broadly worded, may deter protected speech to some u
nknown extent, there comes a point where that effect - at be
st a prediction - cannot, with confidence, justify invalidating a
statute on its face and so prohibiting a State from enforcing t
he statute against conduct that is admittedly within its power
to proscribe. . . .
On the other hand, the other cases cited by counsel, in whic
h a facial examination of statutes was undertaken, involved rig
hts deemed "fundamental" under the Due Process and Equal
Protection Clauses of the U.S. Constitution, such as the right
of privacy,[10]cralaw voting rights,[11]cralawthe right to travel,[12]cra
law and federalisms.[13]cralaw At first glance, these rights appea
r to be of universal value. An examination of their content wil
l show, however, that they are not. For example, the concept
of privacy as a fundamental right has been interpreted in Am
erican law to include the right to use contraceptive devices, [14]
cralawthe right to have an abortion,[15]cralaw the right to marr
y,[16]cralaw and the right to die.[17]cralaw Other "rights" are bein
g pressed for recognition in the name of privacy, namely, the
"right" to engage in homosexual sodomy[18]cralaw and the "rig
ht" to physician-assisted suicide.[19]cralaw It is obvious that suc
h "rights" cannot exist under our laws. It cannot be contende
d that statutes prohibiting the exercise of such "right" are pre
sumed void because the rights involved are "fundamental." Th
ese were declared "rights" by the U.S. Supreme Court in the
course of what has come to be called "fundamental rights" a
djudications, determining what interests are implicit in the Am
erican "scheme of ordered liberty" for the purpose of extendi
ng such "rights" to the several states. It is obvious that such "
rights" are not necessarily also part of the liberty guaranteed
on the Due Process Clause of our Constitution.
Thus, the cases upholding these "rights," which are cited by p
etitioner's counsel as instances in which "non-free" speech stat
utes" were declared void on their faces, have no application t
o the case at bar and do not support his plea for a facial re
view of the Anti-Plunder Law. Only the failure to see the case
s in the context in which they were decided can account for
petitioner's claim that, contrary to our ruling in this case, ther
e are instances in American law in which the vagueness and
overbreadth doctrines were used to invalidate on their faces e
ven "non-free speech" statutes. Indeed, the right to have an a
bortion, which is derived from the right of privacy in America
n law, is in fat so repugnant to our Constitution as to be the
very antithesis of what is fundamental to our people.[20]cralaw
On the other hand, Florida Prepaid Postsecondary Education E
xpense Board v. College Savings Bank,[21]cralaw which petitione
r sites as a non-First Amendment case involving a facial exam
ination of a statute, involves an issue of federalism, also consi
dered "fundamental" in American constitutional law. It will suffi
ce to say that federalism principles simply do not have any a
pplication in this country.
In the case of the Anti-Plunder Law, outside the traditional rig
hts of persons accused in criminal cases, there are no interest
s of speech or other fundamental rights affected by the enfor
cement of the law and, therefore, there is no basis for depart
ing from the general rule that a party can challenge a statute
only as applied to him.
The excerpts from other cases cited in petitioner's Motion for
Reconsideration under the headings "Price-fixing and anti-trust
legislation," "Statute on employment," "Statute on taxation," "
Statute on common carriers," "Statute on waste," and "Statute
on procedure" no not address the question whether in the ca
se of ordinary criminal statutes allegations of vagueness and
overbreadth justify a facial review of statutes. For the question
in the case at bar, it cannot be overemphasized, is not whit
her the vagueness and overbreadth doctrines apply to facial c
hallenges to criminal statutes. The question rather is whether t
he mere assertion that a penal statute is vague or overbroad
- without a showing that interests of speech (or, it may be a
dded, freedom of religion) or other fundamental rights are inf
ringed- triggers a facial review of the said statutes, using stric
t scrutiny as the standard of judicial review. We hold it does
not.
As the Anti-Plunder Law implicates neither free speech nor fre
edom of religion or other fundamental rights of petitioner, a f
acial review of the law cannot be required nor the burden of
proving its validity placed on the State. Mere assertions that it
is vague or overbroad only justify an "as-applied" review of i
ts challenged-provisions. As stated in a leading casebook on c
onstitutional law: "Vagueness challenges in First Amendment c
ontext, like overbreadth challenges, typically produce facial inv
alidation, while statutes found vague as a matter of due proc
ess typically are invalidated 'as applied' to a particular defend
ant."[22]cralaw
C. Cases Cited in the Decision in this Case Reflect the Current
State of the Law
Several decisions of the U.S. Supreme Court are cited for the
holding in this case that petitioner cannot question the validit
y of those provisions of the Anti-Plunder Law under which he
is not being prosecuted. Petitioner disputes the continuing va
lidity of these decisions. He claims that they have been either
ignored or overruled in subsequent decisions of the American
Supreme Court. Petitioner singles out two cases cited in the d
ecision in this case.
The first is United States v. Salerno[23]cralaw in which, through
Chief Justice Rehnquist, it was held:
A facial challenge to a legislative act is, of course, the most d
ifficult challenge to mount successfully, since the challenger m
ust establish that no set of circumstances exists under which t
he Act would be valid. The fact that the Bail Reform Act mig
ht operate unconstitutionally under some conceivable set of ci
rcumstances is insufficient to render it wholly invalid, since we
have not recognized an 'overbreadth' doctrine outside the limi
ted context of the First Amendment.
Quoting Justice Stevens, petitioner says that the statement in
Salernothat "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First amendment" is a mer
e "rhetorical flourish" and, for that reason, "has been properly
ignored" in other cases.
This is not correct. Justice Stevens' statement was actually ma
de in a memorandum opinion denying certiorari in an abortio
n case.[24]cralaw The full text of his statement reads:
The Court's opinion in United States v. Salerno, 481 US 739, 9
5 L E 2d 697, 107 S Ct 2095 (1987), correctly summarized a l
ong established principle of our jurisprudence: "The fact that [
a legislative] Act might operate unconstitutionally under some
conceivable set of circumstances is insufficient to render it wh
olly invalid." Id., at 745, 95 L Ed 2d 697, 107 S Ct 2095.
Unfortunately, the preceding sentence in the Salerno opinion
went well beyond that principle. That sentence opens Part II o
f the opinion with a rhetorical flourish, stating that a facial ch
allenge must fail unless there is "no set of circumstances" in
which the statute could be validly applied. Ibid.; post, at 1178,
134 L Ed 2d, at 681-682.That statement was unsupported by c
itation or precedent. It was also unnecessary to the holding in
the case, for the Court effectively held that the statute at iss
ue would be constitutional as applied in a large fraction of ca
ses. See 481 US, at 749-750, 95 L Ed 2d 697, 107 S Ct 2095.
Thus, what Justice Stevens referred to as a mere "rhetorical fl
ourish" is not the statement in Salerno that "we have not rec
ognized an 'overbreadth' doctrine outside the limited context
of the First Amendment" on which this Court relied for its de
cision in this case. This part of the ruling in that case has not
been modified, much less overruled, in any subsequent decisi
ons of the U.S. Supreme Court, and it fully supports the rulin
g in the case at bar that the vagueness and overbreadth doc
trines justifying facial examination of statutes infringing interest
s of speech or freedom of religion or other fundamental right
s do not apply to penal statutes like the Anti-Plunder Law.
What Justice Stevens stated was a mere "rhetorical flourish" is
the statement that "[a] facial challenge to a legislative act is,
of course, the most difficult challenge to mount successfully, s
ince the challenger must establish that no set of circumstance
s exists under which the Act would be valid." In his view, the
"no-set-of-circumstances" test embodied in this statement in t
he Salerno case has been "replaced" by the ruling in Planned
Parenthood v. Casey[25]cralaw which held that a statute will be
held facially invalid if "in a large fraction of cases in which [it]
is relevant, it will operate as a substantial obstacle to a wom
an's choice to undergo an abortion." With this part of the Sal
erno ruling (or dictum as petitioner's counsel calls it) we are
not concerned in this case, because it is irrelevant. Even if it
was later "replaced" by the decision in Casey, this fact is of n
o moment to this case.
Indeed, Salerno could not really have been "replaced" by Cas
ey because the two cases involved fundamentally different inte
rests. Casey involved abortion for which a different test of ov
erbreadth for determining the validity of a statute on its face
was formulated. Salerno is a non-First Amendment and a non
-fundamental rights case. It involved a challenge to the Bail R
eform Act of 1984 which permits a federal court to detain an
arrestee without bail pending trial on the ground of the dang
er posed by the arrestee to the community. It was contended
in that case that the denial of bail on the basis of the court'
s determination that the arrestee was likely to commit future
crimes was a denial of due process. The American Court rejec
ted the facial challenge to the law and it was in that context
that it ruled that "[t]he fact that the Bail Reform Act might o
perate unconstitutionally under some conceivable set of circu
mstances is insufficient to render it wholly invalid, since we ha
ve not recognized an 'overbreadth' doctrine outside the limite
d context of the First Amendment." Salerno has greater releva
nce to this case than Casey.
Nor has Salerno been ignored or dismissed as petitioner clai
ms. Surely, in the vast literature on the subject, it has its detr
actors. But so does it have its defenders. In point of fact, the
ruling has been affirmed in at least two cases: Reno v. Flores[
cralaw and Rust v. Sullivan.[27]cralaw
26]

In contrast, Casey involved abortion for which a different test

of overbreadth for determining the validity of a statute on its
face was formulated. That case involved a Pennsylvania statute
which, among other things, required any married woman see
king an abortion to submit a statement that she has notified
her husband of her decision to have an abortion. As previousl
y noted, the right to an abortion is considered in American ju
risprudence as a "fundamental right" justifying a facial review
of a statute. The pertinent provision of the Pennsylvania statut
e was invalidated on the ground that it operated in "a large f
raction of cases" as a "substantial obstacle" to a woman's fun
damental right to have an abortion. A new standard of review
in cases involving abortion as a fundamental right was thus
adopted.
The second case cited in the decision in this case, which petit
ioner's counsel claims has already been overruled, is Broaderic
k v. Oklahoma[28]cralawwhich held:
Embedded in the traditional rules governing constitutional adj
udication is the principle that a person to whom a statute ma
y constitutionally be applied will not be heard to challenge th
at statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the
Court.
Petitioner says that the "substantial overbreadth" test laid dow
n in this case has likewise been superseded by the Casey test
insofar as Broaderick limited facial overbreadth challenges to
First Amendment rights.
It must be emphasized that the question in the case at bar is
not whether the overbreadth test for facial invalidity in First
Amendment and fundamental rights cases is the "substantial o
verbreadth" test in Broaderick or the test of "undue burden in
a large fraction of cases" in Casey. The question in this case
is whether the overbreadth and vagueness doctrines in First A
mendment and fundamental rights cases, which call for the fa
cial invalidation of a statute, applies to penal statutes. Broader
ick categorically stated that it does not: "Claims of facial over
breadth have been entertained in cases involving statutes whic
h, by their terms, seek to regulate only spoken words." [29]crala
wOverbreadth or vagueness m an ordinary criminal law can ju
stify only the invalidation of the law "as applied" to the accus
ed. The continuing validity of Broaderick's "substantial overbre
adth" doctrine was affirmed recently in National Endowment f
or the Arts v. Finley,[30]cralaw the opinion in which was written
by Justice O'Connor, who also wrote the plurality opinion in
Planned Parenthood v. Casey. For Broaderick and Casey really
involved different facts, as pointed out above.
Thus, vagueness and overbreadth claims in non-First Amendm
ent cases can succeed only if it is shown that "no set of circu
mstances exists under which the Act would be valid." Otherwis
e, if the provision under which an accused is being prosecute
d is valid, the statute will not be declared void simply becaus
e its other provisions, not applicable to the case, are void for
being vague or overbroad. On the other hand, in First Amend
ment or fundamental rights cases, either "substantial overbrea
dth" or "undue burden in a large fraction of cases" as the ca
se may be is all that is required to justify a facial challenge t
o a statute.
The Salerno rule is summarized in a law review article, thus:
The basic Supreme Court doctrines concerning "facial" and "as
-applied" challenges are set forth in the Salerno case and run
essentially, as follows: there are two types of constitutional c
hallenges, "as-applied" challenges and "facial" challenges. As-a
pplied challenges are the standard kind of constitutional challe
nge, while facial challenges are unusual. A facial challenge to
a rule should succeed only if (1) there exists no set of circum
stances under which the rule could be constitutionally applied,
or (2) the facial invalidation of the rule is warranted by the "
overbreadth" doctrine, a special doctrine limited to the First A
mendment. [31]cralaw
A law review note restates the Salerno rule in somewhat the
same way as follows:
Salerno created - or perhaps merely recognized - a bifurcated
structure for evaluating facial attacks. On the first tier lie cas
es involving First Amendments rights, in which the overbreadt
h standard controls facial attacks. Under the First Amendment
overbreadth doctrine, facial challenges succeed upon proof th
at a questioned statute is capable of a "substantial number" o
f unconstitutional applications. On the second tier rest all othe
r facial attacks, and they are governed by the no-set-of-circu
mstances test.[32]cralaw
Finally, it should be stated here that the American precedents
are being cited not because of their weight as precedents (for
they are not binding on this Court) but because of the force
of their reasoning and only because they are either cited to
us in petitioner's pleadings or their discussion is impelled by
arguments advanced by petitioner. That these cases have not
been later reiterated by the U.S. Supreme Court or that, as c
ounsel for petitioner claims, they have been replaced by newe
r rulings is of secondary interest so long as they have not be
en proven erroneous.
D.Provisions of the Anti-Plunder Law under which Petitioner is
Being Prosecuted
Not Affected by Other Parts Being Challenged

It is nevertheless argued that, if subparagraphs (3), (4), (5), an

d (6) of §1(d) are void because they are vague and/or overbr
oad, this circumstance would be sufficient to render the entire
 Anti-Plunder Law void. In such event, there will be no law u
nder which petitioner can be prosecuted.
It is true that a person cannot be prosecuted except pursuant
to a valid law. But the provisions of the Anti-Plunder Law ar
e severable and the invalidity of its other provisions - assumin
g this to be the case - cannot affect the validity of the provi
sions under which petitioner is being prosecuted. For one, the
Anti-Plunder Act provides in §7 that "if any provisions of [the
] Act or the "application thereof to any person or circumstanc
es is held invalid, the remaining provisions of this Act and the
application of such provisions to other persons or circumstan
ces shall be affected thereby." For another, while it is true tha
t a separability clause in a statute creates only a presumption,
that presumption has not been disputed in the case of the
Anti-Plunder Law. The test is whether the statute can exist ind
ependently of the invalid parts. [33]
cralaw In the case of the Ant
i-Plunder Law, the "overt or criminal acts" enumerated in §1,su
bparagraphs (1) to (6) are actually independent means by whi
ch the crime of plunder may be committed. Invalidation of an
y of these subparagraphs will not affect the validity of the ot
her provisions carrying out the legislative purpose to punish t
hose guilty of amassing ill-gotten wealth in the total amount
of at least P50 million.
Nor does strict scrutiny, as a standard of review in free speec
h and fundamental rights cases, apply to the Anti-Plunder La
w and call for a determination of the validity of all its provisi
ons on their faces. As any criminal statute, the law in questio
n must be strictly construed in specific instances in which its
provisions are applied. Any doubt as to its application must b
e resolved in favor of the accused and against the State. This
is not the same, however, as saying that strict scrutiny shoul
d be applied in determining the validity of the law. Applicatio
n of the strict scrutiny standard to the Anti-Plunder Law woul
d place on the government the. burden of demonstrating a c
ompelling reason for its enactment, when the presumption is
that every statute is valid and the burden of showing its inval
idity is on the accused.[34]cralaw The consequence of applying
strict scrutiny to criminal statutes and reversing the presumpti
on of constitutionality, when no interest of freedom of speech
or religion or any other fundamental right is implicated by it
s enforcement, is disastrous to our system of criminal law. As
Professor Gunther has pointed out, strict scrutiny is "strict" in
theory and "fatal" in fact. [35]cralaw
II.ON PETITIONER'S CLAIM THAT, AS APPLIED TO HIM,
THEANTI-PLUNDER LAW IS UNCONSTITUTIONAL
Petitioner argues that, as applied to him, the statute is vague
and overbroad, that it constitutes a denial of the equal protec
tion of the laws, and that it inflicts a cruel or unusual punish
ment.
A.Allegations of Vagueness and Overbreadth Merely
Repetitions of Arguments Already Passed Upon
Petitioner repeats arguments already made in his Petitions an
d Memorandum that the provisions of the Anti-Plunder Law a
s applied to him are vague and overbroad. As in those pleadi
ngs, very little is given in petitioner's Motion for Reconsiderati
on to a discussion of the invalidity of §1(d), subparagraphs (1)
and (2), as applied to him. The bulk of the Motion for Recon
sideration is devoted to a discussion why the other subparagr
aphs, namely, subparagraphs (3), (4), (5), and (6) of §1(d), are
void and why petitioner should be allowed to raise their alleg
ed invalidity as a defense. These subparagraphs of §1(d) deal
with the establishment of, monopolies and combinations, the i
mplementation of a presidential decree to favor particular indi
viduals, the acquisition of ownership of stocks in a business e
nterprise, and the illegal or fraudulent disposition of governm
ent property. Petitioner is not being prosecuted for their viola
tions but for violation of §1(d), subparagraph (1), on plunder t
hrough misappropriation, conversion, misuse, or malversation
of public funds or raids on the public treasury and for violati
on of §1(d), subparagraph (2), on plunder committed by recei
ving commission, gift, share, percentage, kickbacks, or any oth
er form of pecuniary benefit while the accused is in office. As
this is not a case which involves the exercise of freedom of
speech or religion or any other fundamental right, a considera
tion of the facial validity of subparagraphs (3), (4), (5), and (6)
of §1(d) is clearly uncalled for.
With respect to the validity of subparagraphs (1) and (2) of §1
(d), it will suffice to refer to the discussion in my separate opi
nion on why they are neither vague nor overbroad, as no ne
w arguments are presented in the Motion for Reconsideration.
It only remains to say here That in concluding that these pr
ovisions are not vague, the Court did not rely simply on the
allegations of the Amended Information against petitioner. My
separate opinion in the main case did not refer to the Amen
ded Information to derive the meaning of §1(d), subparagraph
s (1) and (2). The Amended Information was quoted only to s
how that the prosecution against petitioner in this case is for
violation of §2, in relation to §1(d), subparagraphs (1) and (2)
of R.A. No. 7080. Instead, the meaning of these provisions is
explained by reference to the discussions in Congress on S. N
o. 733 and to the purpose of the law. While the main opinio
n and my separate opinion made references to the Amended
Information, their main reliance was actually on the usual aids
in statutory construction. For no more than statutory interpret
ation is involved in understanding the Anti-Plunder Law.
The foregoing discussion should dispose of petitioner's allegati
on that the construction of the statute in this case amounts t
o judicial legislation by the Court. It is not as if the Court plu
cked their meaning from thin air, because in reality their mea
ning is discoverable from a consideration of the legislative hist
ory of the law, particularly the abuses of presidential power w
hich led to its enactment. No drastic surgery of the statute w
as needed to ascertain the meaning and purpose of Congress
in enacting that law. As we have ruled in another case, [36]cra
lawwhen a statute is not "perfectly vague," such that its meani
ng can be ascertained by reference to legislative and other so
urces, it may be saved by proper construction.
B.Statute Neither Violates the Equal Protection Clause
Nor Inflicts a Cruel or Unusual Punishment

It is contended that the Anti-Plunder Law violates the due pr

ocess and equal protection guarantees of the Constitution. It i
s contended that the penalty for the predicate crimes of plun
der, when considered separately, are light compared to the p
enalty (reclusion perpetua to death) imposed when these crim
es are treated as a single complex crime of plunder under R.
A. No. 7080. In that sense, it is argued, the Anti-Plunder Law
not only denies the equal protection of the laws but also imp
oses a cruel and unusual punishment.
With respect to the first point, suffice it to say that when the
predicate crimes are committed in combination or series by o
ne who, taking advantage of his office, amasses wealth in the
amount of at least P50 million, the predicate crimes take on
a very different complexion. They amount to a systematic loot
ing of public wealth. The predicate crimes become plunder. A
s the explanatory note accompanying S. No. 733 stated:
Plunder, a term chosen from other equally apt terminologies l
ike kleptocracy and economic treason,punishes the use of hig
h office for personal enrichment, committed thru a series of a
cts done not in the public eye but in stealth and secrecy ove
r a period of time, that may involve so many persons, here a
nd abroad, and which touch so many states and territorial uni
ts. The acts and/or omissions sought to be penalized do not
involve simple cases of malversation of public funds, bribery,
extortion, theft and graft but constitute the plunder of an enti
re nation resulting in material damage to the national econo
my. The above-described crime does not yet exist in Philippin
e statute books. Thus, the need to come up with a legislation
 as a safeguard against the possible recurrence of the depravi
ties of the previous regime and as a deterrent to those .with
similar inclination to succumb to the corrupting influences of
power.
The "complexing" of crimes and the imposition of a heavier p
enalty for their violations are familiar techniques employed in
the law, e.g., the Revised Penal Code, to reflect Congress's co
ncerns in dealing with serious offenses. That is why this Court
held that plunder is a malum in se because it is not only m
orally reprehensible but also stigmatizing in its effect. For exa
mple, robbery with violence against or intimidation of persons
under Art. 294, par. 5 of the Revised Penal Code is punished
with prision correccional in its maximum period (4 years, 2 m
onths, and 1 day) to prision mayor in its medium period (6 y
ears and 1 day td 8 years). Homicide under Art. 249 of the s
ame Code is punished with reclusion temporal (12 years and 1
day to 20 years). But when the two crimes are combined int
o the special complex crime of robbery with homicide becaus
e the two crimes are committed on the same occasion, the C
ode provides the heavier penalty of reclusion perpetua to dea
th for its commission. Again, the penalty for simple rape unde
r Art. 266-B of the Revised Penal Code is reclusion perpetua,
while that, for homicide under Art. 249 is reclusion temporal (
12 years and 1 day to 20 years). When the two crimes are co
mbined because they are committed on the same occasion, t
he two are treated as one special complex crime of rape with
homicide and punished with a heavier penalty of reclusion p
erpetua to death.
Petitioner cannot therefore compare the penalty for plunder (r
eclusion perpetua to death) with the penalties for special com
plex crimes such as malversation of public funds or property, [3
cralawbribery,[38]cralaw frauds and illegal exactions,[39]cralaw and
7]

monopolies and combinations in restraint of trade, [40]cralaw for

which the penalties are merely correctional. If a comparison i
s needed, it should be to the penalties for, say, qualified pira
cy,[41]cralaw qualified bribery,[42]cralaw or robbery with violence
against or intimidation of persons, [43]cralaw for which the penal
ty is similar.
Qualified piracy, qualified bribery, or robbery with violence ag
ainst or intimidation of persons, along with plunder, are consi
dered heinous offenses in R.A. No. 7659. As this Court said, r
eferring to heinous crimes in People v. Echagaray:[44]cralaw
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 cou
rse of his or her growth as a human being. . . .Seen in this li
ght, the capital crimes of kidnapping and serious illegal deten
tion for ransom resulting in the death of the victim or the vic
tim is raped, tortured, or subjected to dehumanizing acts; des
tructive 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, kid
napping and serious illegal detention, where the victim is deta
ined for more than three days or serious physical injuries wer
e inflicted on the victim or threats to kill him were made or t
he victim is a minor, robbery with homicide, rape or intention
al mutilation, destructive arson, and carnapping where the ow
ner, driver or occupant of the carnapped vehicle is killed or r
aped, 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 t
he 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 fro
m decades of corrupt tyrannical rule that bankrupted the gov
ernment and impoverished the population, the Philippine Gove
rnment 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 t
he psyche of the populace. [With the government] terribly lac
king the money to provide even the most basic services to its
people, any form of misappropriation or misapplication of go
vernment funds translates to an actual threat to the very exist
ence of government, and in turn, the very survival of the peo
ple it governs over. Viewed in this context, no less heinous ar
e the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involvi
ng government officials, employees or officers, that their perp
etrators must not be allowed to cause further destruction and
damage to society.
Moreover, R.A. No. 7659, which imposes the penalty of reclusi
on perpetua to death for plunder and other crimes considere
d heinous, is based on a legislative finding. It is, therefore, pr
esumed valid, and this presumption cannot be overcome exce
pt by "some factual foundation of record" to the contrary. [45]cr
alaw
III.ON THE ADVERSE CONSEQUENCES OF ADOPTING PETITIO
NER'S THEORY
Adoption of petitioner's theory that the Anti-Plunder Law mus
t be judged on its face, using strict scrutiny[46]cralaw as the sta
ndard of review, has serious adverse consequences to our leg
al system. In the first place, a line-by-line strict scrutiny of the
provisions of a criminal statute like the Anti-Plunder Law, wh
en no interests of speech or fundamental rights are involved,
will severely impair the State's ability to deal with crime. It wil
l enable an accused, who is otherwise guilty, to escape condi
gn and merited punishment simply by showing that, as applie
d to others, the statute is vague and/or overbroad, even thou
gh as to him it is not.It will enable the defense in a criminal
case to turn the tables on the prosecution and put the latter
on the defensive by imposing on it the burden of justification.
Even now, petitioner is already claiming that it is the Anti-Pl
under Law, and not he, which is On trial. It is not only the s
overeign prerogative of the State to maintain order and to pu
nish those who violate the criminal laws designed for this pur
pose. The exercise of this power is likewise its duty to enable
the people to enjoy their freedoms.[47]cralaw
In the second place, by allowing petitioner to question parts
of the law even though he is not being prosecuted under the
m, petitioner will in effect be allowed to assert the rights of t
hird parties not before the Court.Any adverse ruling on his co
nstitutional challenge will foreclose the right of third parties to
raise the same question. If it be argued that assertion of the
 invalidity of the other provisions of the Anti-Plunder Law is b
eing made only for the purpose of showing that the law is in
valid and petitioner cannot be prosecuted under an invalid la
w, the flaw in the argument becomes apparent, for then any
pronouncement we make on the matter will be merely adviso
ry.It is beyond the power of courts in our constitutional syste
m to render advisory opinions. As we have held, "courts do n
ot sit to adjudicate mere academic questions to satisfy scholar
ly interest therein, however solid the problem may be."[48]crala
w
In the third place, the exercise of the power of judicial review
is premised on the existence of an actual case or controvers
y.[49]cralaw No one has written more extensively on the need f
or an actual case or controversy as a desideratum of sound c
onstitutional adjudication than Alexander M. Bickel.With grace
and power, Professor Bickel wrote:
One of the chief faculties of the judiciary, which is lacking in
the legislature and which fits the courts for the function of ev
olving and applying constitutional principles, is that the judgm
ent of courts can come later, after the hopes and prophecies
expressed in legislation have been tested in the actual workin
gs of our society; the judgment of courts may be had, in con
crete cases that exemplify the actual consequences of legislati
ve or executive actions. Thus is the Court enabled to prove it
s principles as it evolves them. The concepts of "standing" an
d "case and controversy" tend to ensure this, and there are s
ound reasons, grounded not only in theory but in the judicial
experience of centuries, here and elsewhere, for believing that
the hard, confining, and yet enlarging context of a real contro
versy leads to sounder and more enduring judgments. "Every
tendency to deal with constitutional questions abstractly," Prof
essor Felix Frankfurter wrote a generation ago, "to formulate t
hem in terms of barren legal questions, leads to dialectics, to
sterile conclusions unrelated to actualities."
It may be added that the opportunity to relate a legislative p
olicy to the flesh-and-blood facts of an actual case, and thus
to see and portray it from a very different vantage point, to
observe and describe in being what the legislature mayor ma
y not have foreseen as probable - this opportunity as much a
s, or more than, anything else enables the Court to appeal to
the nation's second thought. Moreover, the "standing" and "c
ase" requirement creates a time lag between legislation and a
djudication, as well as shifting the line of vision. Hence it cus
hions the clash between the Court and any given legislative
majority and strengthens the Court's hand in gaining acceptan
ce for its principles. The validity of this argument, it may be v
entured, would soon be apparent if it were customary to brin
g statutes to court, as it were in the very flush of enactment,
while the feelings that produced them were at their highest p
itch, and while the policies they embodied had as yet suffere
d none of the dents necessarily made, in another of Professor
Frankfurter's phrases, by the "impact of actuality." . . . [50]crala
w
FOR THE FOREGOING REASONS, I VOTE TO DENY THE MOTI
ON FOR RECONSIDERATION FILED BY PETITIONER.
Very truly yours,

LUZVIMINDA D. PUNO

Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court

G.R. No. 192330

 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 192330 November 14, 2012
ARNOLD JAMES M. YSIDORO,Petitioner,
vs.
PEOPLE OF THE PHILIPPINES,Respondent.
D E C I S I O N
ABAD, J.:
This case is about a municipal mayor charged with illegal dive
rsion of food intended for those suffering from malnutrition t
o the beneficiaries of reconsideration projects affecting the ho
mes of victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused Arnold
James M. Ysidoro before the Sandiganbayan in Criminal Case
28228 of violation of illegal use of public propertry (technical
malversation) under Article 220 of the Revised Penal Code.1
The facts show that the Municipal Social Welfare and Develop
ment Office (MSWDO) of Leyte, Leyte, operated a Core Shelte
r Assistance Program (CSAP) that provided construction materi
als to indigent calamity victims with which to rebuild their ho
mes. The beneficiaries provided the labor needed for construc
tion.
On June 15, 2001 when construction for calamity victims in Siti
o Luy-a, Barangay Tinugtogan, was 70% done, the beneficiarie
s stopped reporting for work for the reason that they had to
find food for their families. This worried Lolita Garcia (Garcia),
the CSAP Officer-in-Charge, for such construction stoppage co
uld result in the loss of construction materials particularly the
cement. Thus, she sought the help of Cristina Polinio (Polinio),
an officer of the MSWDO in charge of the municipality’s Sup
plemental Feeding Program (SFP) that rationed food to malno
urished children. Polinio told Garcia that the SFP still had sack
s of rice and boxes of sardines in its storeroom. And since sh
e had already distributed food to the mother volunteers, what
remained could be given to the CSAP beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidor
o, the Leyte Municipal Mayor, to seek his approval. After expl
aining the situation to him, Ysidoro approved the release and
signed the withdrawal slip for four sacks of rice and two boxe
s of sardines worth P3,396.00 to CSAP.2Mayor Ysidoro instruct
ed Garcia and Polinio, however, to consult the accounting de
partment regarding the matter. On being consulted, Eldelissa
Elises, the supervising clerk of the Municipal Accountant’s Offic
e, signed the withdrawal slip based on her view that it was a
n emergency situation justifying the release of the goods. Sub
sequently, CSAP delivered those goods to its beneficiaries. Aft
erwards, Garcia reported the matter to the MSWDO and to th
e municipal auditor as per auditing rules.
On August 27, 2001 Alfredo Doller, former member of the Sa
ngguniang Bayan of Leyte, filed the present complaint against
Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO hea
d, testified that the subject SFP goods were intended for its t
arget beneficiaries, Leyte’s malnourished children. She also poi
nted out that the Supplemental Feeding Implementation Guide
lines for Local Government Units governed the distribution of
SFP goods.3 Thus, Ysidoro committed technical malversation w
hen he approved the distribution of SFP goods to the CSAP
beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject
goods to a project also meant for the poor of the municipal
ity was valid since they came from the savings of the SFP an
d the Calamity Fund. Ysidoro also claims good faith, believing
that the municipality’s poor CSAP beneficiaries were also in ur
gent need of food. Furthermore, Ysidoro pointed out that the
COA Municipal Auditor conducted a comprehensive audit of t
heir municipality in 2001 and found nothing irregular in its tra
nsactions.
On February 8, 2010 the Sandiganbayan found Ysidoro guilty
beyond reasonable doubt of technical malversation. But, since
his action caused no damage or embarrassment to public ser
vice, it only fined him P1,698.00 or 50% of the sum misapplie
d. The Sandiganbayan held that Ysidoro applied public proper
ty to a pubic purpose other than that for which it has been
appropriated by law or ordinance. On May 12, 2010 the Sandi
ganbayan denied Ysidoro’s motion for reconsideration. On Jun
e 8, 2010 Ysidoro appealed the Sandiganbayan Decision to thi
s Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s finding that
he committed technical malversation. He particularly raises th
e following questions:
1. Whether or not he approved the diversion of the subject g
oods to a public purpose different from their originally intend
ed purpose;
2. Whether or not the goods he approved for diversion were
in the nature of savings that could be used to augment the
other authorized expenditures of the municipality;
3. Whether or not his failure to present the municipal auditor
can be taken against him; and
4. Whether or not good faith is a valid defense for technical
malversation.
The Court’s Rulings
One. The crime of technical malversation as penalized under
Article 220 of the Revised Penal Code4 has three elements: a)
that the offender is an accountable public officer; b) that he
applies public funds or property under his administration to s
ome public use; and c) that the public use for which such fu
nds or property were applied is different from the purpose fo
r which they were originally appropriated by law or ordinance.
5 Ysidoro claims that he could not be held liable for the offe
nse under its third element because the four sacks of rice an
d two boxes of sardines he gave the CSAP beneficiaries were
not appropriated by law or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the Sangg
uniang Bayan of Leyte enacted Resolution 00-133 appropriatin
g the annual general fund for 2001.6 This appropriation was b
ased on the executive budget7 which allocated P100,000.00 fo
r the SFP and P113,957.64 for the Comprehensive and Integrat
ed Delivery of Social Services8which covers the CSAP housing
projects.9 The creation of the two items shows the Sanggunia
n’s intention to appropriate separate funds for SFP and the C
SAP in the annual budget.
Since the municipality bought the subject goods using SFP fu
nds, then those goods should be used for SFP’s needs, obser
ving the rules prescribed for identifying the qualified beneficia
ries of its feeding programs. The target clientele of the SFP a
ccording to its manual10 are: 1) the moderately and severely
underweight pre-school children aged 36 months to 72 month
s; and 2) the families of six members whose total monthly inc
ome is P3,675.00 and below.11 This rule provides assurance th
at the SFP would cater only to the malnourished among its p
eople who are in urgent need of the government’s limited res
ources.
Ysidoro disregarded the guidelines when he approved the dist
ribution of the goods to those providing free labor for the re
building of their own homes. This is technical malversation. If
Ysidoro could not legally distribute the construction materials
appropriated for the CSAP housing beneficiaries to the SFP m
alnourished clients neither could he distribute the food intend
ed for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted
savings of the SFP and that, therefore, the same could alrea
dy be diverted to the CSAP beneficiaries. He relies on Abdulla
 v. People12 which states that funds classified as savings are
not considered appropriated by law or ordinance and can be
used for other public purposes. The Court cannot accept Ysid
oro’s argument.
The subject goods could not be regarded as savings. The SFP
is a continuing program that ran throughout the year. Conse
quently, no one could say in mid-June 2001 that SFP had alre
ady finished its project, leaving funds or goods that it no lon
ger needed. The fact that Polinio had already distributed the f
ood items needed by the SFP beneficiaries for the second qu
arter of 2001 does not mean that the remaining food items i
n its storeroom constituted unneeded savings. Since the requir
ements of hungry mouths are hard to predict to the last sack
of rice or can of sardines, the view that the subject goods w
ere no longer needed for the remainder of the year was quit
e premature.
In any case, the Local Government Code provides that an ord
inance has to be enacted to validly apply funds, already appr
opriated for a determined public purpose, to some other pur
pose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. – Funds sh
all be available exclusively for the specific purpose for which t
hey have been appropriated. No ordinance shall be passed au
thorizing any transfer of appropriations from one item to anot
her. However, the local chief executive or the presiding officer
of the sanggunian concerned may, by ordinance, be authoriz
ed to augment any item in the approved annual budget for t
heir respective offices from savings in other items within the s
ame expense class of their respective appropriations.
The power of the purse is vested in the local legislative body.
By requiring an ordinance, the law gives the Sanggunian the
power to determine whether savings have accrued and to aut
horize the augmentation of other items on the budget with t
hose savings.
Three. Ysidoro claims that, since the municipal auditor found
nothing irregular in the diversion of the subject goods, such fi
nding should be respected. The SB ruled, however, that since
Ysidoro failed to present the municipal auditor at the trial, the
presumption is that his testimony would have been adverse i
f produced. Ysidoro argues that this goes against the rule on
the presumption of innocence and the presumption of regular
ity in the performance of official functions.
Ysidoro may be right in that there is no basis for assuming t
hat had the municipal auditor testified, his testimony would h
ave been adverse to the mayor. The municipal auditor’s view
regarding the transaction is not conclusive to the case and wi
ll not necessarily negate the mayor’s liability if it happened to
be favorable to him. The Court will not, therefore, be drawn
into speculations regarding what the municipal auditor would
have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, th
e idea of using the SFP goods for the CSAP beneficiaries cam
e, not from him, but from Garcia and Polinio; and, second, h
e consulted the accounting department if the goods could be
distributed to those beneficiaries. Having no criminal intent, h
e argues that he cannot be convicted of the crime. 1âwphi1
But criminal intent is not an element of technical malversation.
The law punishes the act of diverting public property earmar
ked by law or ordinance for a particular public purpose to an
other public purpose. The offense is mala prohibita, meaning
that the prohibited act is not inherently immoral but becomes
a criminal offense because positive law forbids its commissio
n based on considerations of public policy, order, and conveni
ence.13 It is the commission of an act as defined by the law,
and not the character or effect thereof, that determines wheth
er or not the provision has been violated. Hence, malice or cr
iminal intent is completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or minis
cule the amount diverted, constitutes the crime of technical m
alversation. The law and this Court, however, recognize that hi
s offense is not grave, warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the assailed D
ecision of the Sandiganbayan in Criminal Case 28228 dated F
ebruary 8, 2010.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M. PERALTA
Associate JusticeJOSE PORTUGAL PEREZ*
Associate Justice

JOSE CATRAL MENDOZA

Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had been r
eached in consultation before the case was assigned to the w
riter of the opinion of the Court’s Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson’s Attestation, I certify that the conclusion
s in the above Decision had been reached in consultation bef
ore the case was assigned to the writer of the opinion of the
Court’s Division.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
* Designated Acting Member, per Special Order 1299 dated A
ugust 28, 2012.
1 Records, p. 1.
2 Id. at 250.
3 Id. at 260-329.
4 Art. 220. Illegal use of public funds or property. — Any pu
blic officer who shall apply any public fund or property under
his administration to any public use other than for which suc
h fund or property were appropriated by law or ordinance sh
all suffer the penalty of prision correccional in its minimum p
eriod or a fine ranging from one-half to the total of the sum
 misapplied, if by reason of such misapplication, any damages
or embarrassment shall have resulted to the public service. I
n either case, the offender shall also suffer the penalty of te
mporary special disqualification.
If no damage or embarrassment to the public service has res
ulted, the penalty shall be a fine from 5 to 50 per cent of th
e sum misapplied.
5 Parungao v. Sandiganbayan, 274 Phil. 451, 460 (1991).
6 Records, pp. 258-259.
7 SEC. 318. Preparation of the Budget by the Local Chief Exec
utive. – Upon receipt of the statements of income and expen
ditures from the treasurer, the budget proposals of the heads
of departments and offices, and the estimates of income and
budgetary ceilings from the local finance committee, the local
chief executive shall prepare the executive budget for the ens
uing fiscal year in accordance with the provisions of this Title.
The local chief executive shall submit the said executive budg
et to the sanggunian concerned not later than the sixteenth (
16th) of October of the current fiscal year. Failure to submit s
uch budget on the date prescribed herein shall subject the lo
cal chief executive to such criminal and administrative penaltie
s as provided for under this Code and other applicable laws.
(Emphasis supplied)
SEC. 319. Legislative Authorization of the Budget. – On or bef
ore the end of the current fiscal year, the sanggunian concer
ned shall enact, through an ordinance, the annual budget of t
he local government unit for the ensuing fiscal year on the b
asis of the estimates of income and expenditures submitted b
y the local chief executive.
8 Records, p. 254.
9 TSN, May 23, 2006, p. 15 (rollo, pp. 127-128) and TSN, Aug
ust 2, 2007, pp. 15-16 (rollo, p. 130).
10 Guidelines on the Management of CRS Supported Supplem
ental Feeding Program Implemented by the Local Government
Units; Sandiganbayan rollo, Vol. I, pp. 260-329.
11 Id. at 263.
12 495 Phil. 70 (2005).
13 FLORENZ REGALADO, CRIMINAL LAW CONSPECTUS (2003
rev. ed), citing People v. Pavlic, 227 Mich., 563, N.W. 371, 35
ALR.
14 Luciano v. Estrella, 145 Phil. 454, 464-465 (1970).
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