Sunday, January 29, 2017

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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