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G.R. No. 148468 January 28, 2003

ATTY. EDWARD SERAPIO, petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE
DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.

x---------------------------------------------------------x

G.R. No. 148769 January 28, 2003

EDWARD SERAPIO, petitioner,

vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

x---------------------------------------------------------x

G.R. No. 149116 January 28, 2003

EDWARD SERAPIO, petitioner,

vs.
HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents.

CALLEJO, SR., J.:

Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the
Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash,
and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of
the accused together with former President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others.

The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim
Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of
providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and
support to research and advance studies of young Muslim educators and scientists.

Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of
Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis "Chavit" Singson through the latter's
assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the
Foundation's treasurer who later deposited it in the Foundation's account with the Equitable PCI Bank.

In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts
of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng. This
triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada,
Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against
Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-
00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed
as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus
Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed
as OMB Crim. Case No. 0-00-1757.

Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed
their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the
complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner
and several others be charged with the criminal offense of plunder.

On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President
Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these
Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the
Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including
petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including
petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The
amended Information reads:

"That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER BEING THEN THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS,
BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and
acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL
VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less,
THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A
combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as
follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-
accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND
JOHN DOES AND JANE DOES in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR

INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the
TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused
Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy,
and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR
LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS,
OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE
HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN
PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED
FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
[P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN
PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING,
DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE
OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE
EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,

KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
 SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK.

CONTRARY TO LAW."1

On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding probable cause against
him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration
and/or Reinvestigation.2 Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus
Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a
Determination of Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration and/or
Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused
Edward Serapio.3

On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for reconsideration and/or
reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder
had already been filed with the Sandiganbayan.4

In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558
finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly,
the Sandiganbayan issued an Order on the same date for the arrest of petitioner.5 When apprised of said order,
petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro
Mendoza. Petitioner has since been detained at Camp Crame for said charge.

The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June
27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail
which was set for hearing on May 4, 2001.6 For his part, petitioner's co-accused Jose "Jinggoy" Estrada filed on
April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right.

During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution moved for the resetting of
the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the
motion of the prosecution and issued an order declaring that the petition for bail can and should be heard before
petitioner's arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their
respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on
petitioner's petition for bail on May 21 to 25, 2001.

On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman filed an urgent
motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings
of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the
propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioner's) petition for bail.

The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's petition for bail to
June 18 to 28, 2001 to enable the court to resolve the prosecution's pending motions as well as petitioner's motion
that his petition for bail be heard as early as possible, which motion the prosecution opposed.

On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001 Urgent Omnibus
Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001
Resolution finding probable cause to hold petitioner and his co-accused for trial.7 Petitioner filed a motion for
reconsideration of the said May 31, 2001 Resolution.

On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the
other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-
examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it
determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to
participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court,
whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.8

However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an
Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew
the hearing to June 26, 2001.9

On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration of
its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date
petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against
him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of
plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall
unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been
illegally received or collected does not constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act No.
7080; and the amended Information charges him of bribery and illegal gambling.10 By way of riposte, the
prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The
prosecution contended that petitioner's motion to quash the amended Information was antithetical to his petition for
bail.

The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal
Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner.
However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution,
petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as G.R. No.
148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on
his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the
issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in
opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioner's
guilt of plunder, that he be granted provisional liberty on bail after due proceedings.11

Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion praying that said court
resolve his motion to fix his bail.

On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash the amended
Information. Petitioner, through counsel, received on said date a copy of said resolution.12 The motion to fix bail filed
by Jose "Jinggoy" Estrada was also resolved by the Sandiganbayan.

On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the
Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his
motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no
provision in the Rules of Court or in the Sandiganbayan's rules granting the right to petitioner to file a motion for the
reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for
reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to
plead, impelling the court to enter a plea of not guilty for him.

On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that
the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that
material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and
that he is charged, under the said amended Information, for more than one offense. Jose "Jinggoy" Estrada likewise
filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the
Sandiganbayan denying his motion to fix bail.

On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116,
assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus
Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution.

Re: G.R. No. 148769

Petitioner avers that:

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIO'S
MOTION TO QUASH NOTWITHSTANDING THAT —

THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT
CONSTITUTE THE CRIME OF PLUNDER.

A The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or
criminal acts constitutive of plunder.

B The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts
indicative of an overall unlawful scheme or conspiracy.

C The money described in paragraph (a) of the Amended Information and alleged to have been illegally
received or collected does not constitute 'ill-gotten wealth' as defined in Section 1(d), Republic Act No. 7080,
as amended.
 II

THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13

Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a)
which reads:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR
LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY
FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG'
ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"14

Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a "combination or series
of overt or criminal acts" constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does
the amended Information allege "a pattern of criminal acts." He avers that his single act of toleration or protection of
illegal gambling impelled by a single criminal resolution does not constitute the requisite "combination or series of
acts" for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance
of said resolution turned over to and received by former President Joseph E. Estrada "on several occasions" does
not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is
charged only with bribery or illegal gambling and not of plunder.

Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President
Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A.
7080.

We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that:

"Sec. 6 Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name
of the accused, the designation of the offense given by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.

When the offense was committed by more than one person, all of them shall be included in the complaint or
information."15

The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged and enable the court to know the proper judgment.
The Information must allege clearly and accurately the elements of the crime charged. What facts and
circumstances are necessary to be included therein must be determined by reference to the definition and elements
of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is
to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his
defense.16 Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution
for the same offense.17 The use of derivatives or synonyms or allegations of basic facts constituting the offense
charged is sufficient.18

In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and
conspired with former President Joseph E. Estrada to commit plunder "through any or a combination or a series of
overt or criminal acts or similar schemes or means." And in paragraph (a) of the amended Information, petitioner
and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the
aggregate amount of P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et al.,19 we
held that the word "series" is synonymous with the clause "on several instances"; it refers to a repetition of the same
predicate act in any of the items in Section 1(d) of the law. We further held that the word "combination" contemplates
the commission of at least any two different predicate acts in any of the said items. We ruled that "plainly,
subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed
by a series of the same predicate act under Section 1(d)(2) of the law" and that:

"x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal
gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as
one of those who conspired with former President Estrada in committing the offense. This predicate act
corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x
x."20
It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and
the general rule is that matters of evidence need not be alleged in the Information.21

The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount of
P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten
wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in
paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to
enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17.

Under the amended Information, all the accused, including petitioner, are charged of having conspired and
confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is
responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them.23
Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that
the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and
declarations of all.24

Petitioner asserts that he is charged under the amended information of bribery and illegal gambling and others. The
Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling
but is charged only with one crime that of plunder:

"THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE

According to the accused Estradas and Edward Serapio the information charges more than one offense,
namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217,
Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713.

This contention is patently unmeritorious. The acts alleged in the information are not charged as separate
offenses but as predicate acts of the crime of plunder.

It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express
reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may
penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form
part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of
public funds, the law also uses the generic terms 'misappropriation', 'conversion' or 'misuse' of said fund. The
fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are
mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be
taken or to be understood as allegations charging separate criminal offenses punished under the Revised
Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public
Officials and Employees."25

This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his
co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears
stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of
the crime of plunder. Resultantly then, the petition is dismissed.

Re: G.R. No. 149116

Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent
Omnibus Motion contending that:

"GROUNDS FOR THE PETITION

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER
SERAPIO'S URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED
31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY
EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE
RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT
AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO."26

Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to
hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to
conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the
charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and
committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable
cause to support an indictment for plunder as against him.27

Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the
collection and receipt of jueteng money which started in 199828 and that the Ombudsman inexplicably arrived at the
conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph
Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and
legitimate private foundation.29 More importantly, he claims, said joint resolution does not indicate that he knew that
the P200 million he received for the Foundation came from jueteng.30

Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute
"ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2) there is no evidence linking him to the collection
and receipt of jueteng money;32 (3) there was no showing that petitioner participated in a pattern of criminal acts
indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his
act of receiving the P200 million constitutes an overt criminal act of plunder.33

Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a
finding of probable cause for plunder as against him,34 and hence he should be spared from the inconvenience,
burden and expense of a public trial.35

Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that
while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a
given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate
protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid
oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are
manifestly false and motivated by the lust for vengeance.36 Petitioner claims that he raised proper grounds for a
reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence
exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been
prejudicial to his interest.37 He also states that during the joint preliminary investigations for the various charges
against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against
Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the
evidence presented in relation to the other seven cases, even though the evidence presented therein were also
used against him, although he was only charged in the plunder case.38

The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioner's
omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of
plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They
further argue that "a finding of probable cause is merely preliminary and prefatory of the eventual determination of
guilt or innocence of the accused," and that petitioner still has the chance to interpose his defenses in a full blown
trial where his guilt or innocence may finally be determined.39

The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioner's
omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for
reconsideration of the Ombudsman's joint resolution did not raise the grounds of either newly discovered evidence,
or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for
reconsideration may be filed.40

The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of
Joseph Estrada.41

This Court does not agree with petitioner.

Case law has it that the Court does not interfere with the Ombudsman's discretion in the conduct of preliminary
investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled:

"x x x. In the performance of his task to determine probable cause, the Ombudsman's discretion is
paramount. Thus, in Camanag vs. Guerrero, this Court said:

'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of
preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in
the exercise of determination of what constitutes sufficient evidence as will establish 'probable cause'
for filing of information against the supposed offender."
In Cruz, Jr. vs. People,43 the Court ruled thus:

"Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing said
findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that
petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of
fact here. His arguments are anchored on the propriety or error in the Ombudsman's appreciation of facts.
Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of
the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only
questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned,
we find that no grave abuse of discretion has been committed by respondents which would warrant the
granting of the writ of certiorari."

Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter
committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to
discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and
the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its
discretion in denying petitioner's motion for reinvestigation of the charges against him in the amended Information.
In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause
exists against petitioner and his co-accused for the crime of plunder, thus:

"In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001
charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in
support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses
and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused
former President Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated February 20,
2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the
Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of
warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada,
Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or
Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas."44

Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the Sandiganbayan noted that a
preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of
the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and
that all the basic complaints and evidence in support thereof were served upon all the accused.45 It was in light of
such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including
petitioner) were deprived of the right to seek a reconsideration of the Ombudsman's Resolution dated April 4, 2001
finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection
therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the
Ombudsman's resolution, but failed to show in his motion that there were newly discovered evidence, or that the
preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a
reconsideration of the Ombudsman's resolution may be granted.46

It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right
conferred by statute.47 The absence of a preliminary investigation does not impair the validity of the Information or
otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute
a ground for quashing the Information.48 If the lack of a preliminary investigation does not render the Information
invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a
motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither
can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the
charges against him during the preliminary investigation.

The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether
there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held
for trial.49 As the Court held in Webb vs. De Leon, "[a] finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause
need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.''50

Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct
preliminary investigation, courts as a rule must defer to said officer's finding and determination of probable cause,
since the determination of the existence of probable cause is the function of the prosecutor.51 The Court agrees with
the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the
Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not
supported by the facts, and that a reinvestigation was necessary.
Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for reinvestigation
since there is nothing to substantiate petitioner's claim that it gravely abused its discretion in ruling that there was no
need to conduct a reinvestigation of the case.52

The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have waived his right to ask
for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the
conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely
prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation
had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had
participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for
reinvestigation as well as his motion for reconsideration thereon prior to his arraignment.54 In sum then, the petition
is dismissed.

Re: G.R. No. 148468

As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1)
Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2)
Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail;
(3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No.
26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for
bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether
petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from
detention via a writ of habeas corpus.

On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting
to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on
said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on
Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings
since the latter can stand alone and must, of necessity, be heard immediately.55 Petitioner maintains that his
arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged,
as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng
scandal and the preliminary investigation before the Ombudsman.56 Neither would the prosecution be prejudiced
even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary
confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution,57 and
petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because
Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are
automatically reproduced during the trial.58 Petitioner likewise assures the prosecution that he is willing to be
arraigned prior to the posting of a bail bond should he be granted bail.59

The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon
arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he
file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition.
Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must
be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the
ground that he was not properly informed of the charge against him, especially considering that, under Section 8,
Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically
reproduced at the trial.60 Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an
accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused
escapes after he has been arraigned.61 The People also contend that the conduct of bail hearings prior to
arraignment would extend to an accused the undeserved privilege of being appraised of the prosecution's evidence
before he pleads guilty for purposes of penalty reduction.62

Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the
Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the
conduct of bail hearings in petitioner's case moot, the Court takes this opportunity to discuss the controlling precepts
thereon pursuant to its symbolic function of educating the bench and bar.63

The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of
hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by
virtue of his arrest or voluntary surrender.64 An accused need not wait for his arraignment before filing a petition for
bail.
In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first be arraigned
before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No.
7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable
by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial
court's imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein
that "in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be
precluded from filing a motion to quash."66

However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at
all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or
voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or
information is filed against him.67 The Court's pronouncement in Lavides should be understood in light of the fact
that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him.
Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place
him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail
because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a
motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his
constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a
crime and his right to bail.68

It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for
bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The
ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion
perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case
that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional
liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances. In fine,
the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the
arraignment of petitioner before proceeding with the hearing of his petition for bail.

With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition
for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed
independently of each other. While he agrees with the prosecution that a motion to quash may in some instances
result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the
petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention
cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for
bail or to withdraw one that has been filed.69 He also insists that the grant of a motion to quash does not
automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule
117, Section 5 of the Revised Rules of Court.70

The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a
motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules
of Court.71 Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction
while at the same time securing his appearance at the trial.72 As stated earlier, a person may apply for bail from the
moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.73

On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a
criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are
apparent in the face of the Information.74 An accused may file a motion to quash the Information, as a general rule,
before arraignment.75

These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an
accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua
or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence
of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him
with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the
ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered
released, the petition for bail of an accused may become moot and academic.

We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner
and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial of the said case as against former
President Joseph E. Estrada be heard jointly.
Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in
a summary proceeding since said hearings might be converted into a full blown trial on the merits by the
prosecution.76

For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses
and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who
are charged as co-conspirators in the crime of plunder.77

In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings,
the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case.
It stated:

" x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from
participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does
not concern them and that they will participate in any hearing where evidence is presented by the prosecution
only if and when they will already have filed their petitions for bail, or should they decide not to file any, that
they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects
of having to go through the process of introducing the same witness and pieces of evidence two times, three
times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not
conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly
proceeding."78

There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan
governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an
accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not
to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of
said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court.
Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere
with the exercise by the Sandiganbayan of its discretion.

It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the
convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the
prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the
complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if
this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen,
in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About
them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.79

It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail hearing, the court is
to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the
evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the
weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight
that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on
what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to
substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses,
and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to
the purpose of the hearing.

A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of
both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for
bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially
the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of
petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For,
with the participation of the former president in the hearing of petitioner's petition for bail, the proceeding assumes a
completely different dimension. The proceedings will no longer be summary. As against former President Joseph E.
Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover,
following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada can only
be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is
not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist
Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with
the other co-accused named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several
instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling.81
Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for
the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling
as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioner's petition
for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively
the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence
in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on
cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition with the trial of
former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the
issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by
the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly
explained by Cooley in his treatise Constitutional Limitations, thus:

"For, if there were any mode short of confinement which would with reasonable certainty insure the
attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that
indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person,
while as yet it is not determined that he has not committed any crime."82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to proceed with the trial of
the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case,"83
the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of
former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in
its May 4, 2001 Order the "pre-eminent position and superiority of the rights of [petitioner] to have the matter of his
provisional liberty resolved . . . without unnecessary delay,"84 only to make a volte face and declare that after all the
hearing of petition for bail of petitioner and Jose "Jinggoy" Estrada and the trial as against former President Joseph
E. Estrada should be held simultaneously. In ordering that petitioner's petition for bail to be heard jointly with the trial
of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further
and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan
committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioner's petition for bail with the
trial of the case against former President Joseph E. Estrada on its merits.

With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by filing dilatory motions,
the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558
by their filing of numerous manifestations and pleadings with the Sandiganbayan.85 They assert that they filed the
motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings
which was on May 21–25, 2001.86

They argue further that bail is not a matter of right in capital offenses.87 In support thereof, they cite Article III, Sec
13 of the Constitution, which states that —

"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required."88

The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide:

"Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. —
No person charged with a capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal
prosecution.

Sec. 4 Bail, a matter of right, exception. — All persons in custody shall be admitted to bail as a matter of right,
with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before
conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life
imprisonment."89

Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional
liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is
discretionary upon the court.90 Had the rule been otherwise, the Rules would not have provided for an application
for bail by a person charged with a capital offense under Rule 114, Section 8 which states:

"Sec. 8 Burden of proof in bail application. — At the hearing of an application for bail filed by a person who is
in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the
prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the
bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the
court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or
otherwise unable to testify."91
Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a
capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged
with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an
opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong.92 The
prosecution shall be accorded the opportunity to present all the evidence it may deem necessary for this purpose.93
When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the court's duty to deny the application
for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.94

In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioner's claim
that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that
the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not
waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It
must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioner's application for bail
but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had
to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the
Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29,
2001.

The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable solely to the
Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list
of motions filed by him and by the prosecution:

Motions filed by petitioner:

• Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for
reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a
determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the
issuance of warrant of arrest and other proceedings pending determination of probable cause;

• Motion for Early Resolution, dated May 24, 2001;

• Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant
of bail or For Release on Recognizance, dated April 25, 2001;

• Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001;

• Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set
aside and bail hearings be set at the earliest possible time;

• Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001;

• Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he
be allowed to file a Motion for Reinvestigation; and

• Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution:

• Motion for Earlier Arraignment, dated May 8, 2001;96

• Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada and Edward
Serapio, dated May 8, 2001;97

• Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier
Arraignment, dated May 25, 2001;98 and

• Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.99

The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following
motions:

• Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the
constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed;

• Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be
(1)excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the
 alternative, (3) be allowed to post bail;

• Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy
Estrada, praying that they be placed on house arrest during the pendency of the case;

• Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;

• Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy
Estrada;

• Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by
the Ombudsman or the outright dismissal of the case;

• Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five
(5) days within which to respond to the Opposition to Motion to Quash in view of the holidays and election-
related distractions;

• Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada;

• Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and
Jinggoy Estrada, praying that they be placed on house arrest;

• Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada;

• Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada;

• Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada;

• Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed
to be confined in Tanay;

• Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph Estrada;

• Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration
of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice
Badoy;

• Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28,
2001, filed by Jinggoy Estrada;

• Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the
resolution compelling them to be present at petitioner Serapio's hearing for bail be reconsidered;

• Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;

• Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that
Bishop Teodoro Bacani favors their house arrest;

• Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be
present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors;

• Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of
Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada;

• Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada;

• Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming
that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of
production, inspection and copying of documents, requesting for status of alias case; and

• Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some
municipal affairs in San Juan, Metro Manila.100

Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in
opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to
conduct a hearing on said application.101 The rationale for such requirement was explained in Narciso vs. Sta.
Romana-Cruz (supra), citing Basco vs. Rapatalo:102
 "When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt
against the accused is strong. However, the determination of whether or not the evidence of guilt is strong,
being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may
rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is
directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or
produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence
of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own
evidence in rebuttal."103

Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his
application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence
against petitioner is not strong before he may be granted bail.

Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is
entitled to the issuance of said writ because the State, through the prosecution's refusal to present evidence and by
the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him,
evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched "a
seemingly endless barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings. Specifically,
the prosecution moved for petitioner's arraignment before the commencement of bail hearings and insisted on joint
bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who
asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in
chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon
the accused; and argued that petitioner's motion to quash and his petition for bail are inconsistent, and therefore,
petitioner should choose to pursue only one of these two remedies.104 He further claims that the Sandiganbayan,
through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail
and to due process of law.105

Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it
had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said
orders have resulted in a continuing deprivation of petitioner's right to bail.106 He argues further that the fact that he
was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy of
habeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held that
habeas corpus extends to instances where the detention, while valid from its inception, has later become
arbitrary.108

However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the
amended information which was earlier filed in court,109 the warrant of arrest issuant pursuant thereto was valid,
and petitioner voluntarily surrendered to the authorities.110

As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in
custody of an officer under a process issued by the court which jurisdiction to do so.111 In exceptional
circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant
to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as "the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action" due to "its ability to cut through barriers
of form and procedural mazes."112 Thus, in previous cases, we issued the writ where the deprivation of liberty, while
initially valid under the law, had later become invalid,113 and even though the persons praying for its issuance were
not completely deprived of their liberty.114

The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that
habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court which had jurisdiction to issue the same115 applies, because petitioner is under
detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the
Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact
voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had
been issued.

The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty which was initially
valid has become arbitrary in view of subsequent developments finds no application in the present case because the
hearing on petitioner's application for bail has yet to commence. As stated earlier, they delay in the hearing of
petitioner's petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter.
Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for
asserting one's right to bail.117 It cannot be availed of where accused is entitled to bail not as a matter of right but on
the discretion of the court and the latter has not abused such discretion in refusing to grant bail,118 or has not even
exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case
is pending and to allow hearings thereon to proceed.

The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan's
resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the
hearing on his application for bail.

IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows:

1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent
Sandiganbayan subject of said petitions are AFFIRMED; and

2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex
"L" of the petition, ordering a joint hearing of petitioner's petition for bail and the trial of Criminal Case No. 26558 as
against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also
SET ASIDE.

No costs.

SO ORDERED.

Davide, Jr., C .J ., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-Martinez, Corona, Carpio-Morales
and Azcuna, JJ ., concur.
Vitug, J ., see separate opinion.
Ynares-Santiago, J ., joins the dissent of Justice Sandoval-Gutierrez.
Sandoval-Gutierrez, J ., see dissenting opinion.
Carpio, J ., no part, prior inhibition in plunder cases.

Separate Opinions

VITUG, J.:

I fully subscribe to the ponencia in G.R. No. 148468 that —

a) The arraignment of an accused is not a prerequisite to the conduct of hearings on a petition for bail. A
person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary
surrender.

b) There is no inconsistency between an application of an accused for bail and his filing of a motion to quash,
these two reliefs not being necessarily antithetical to each other.

c) The joinder of hearing of herein petitioner's bail petition with the trial of former President Joseph Estrada
indeed could unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty.

d) The claim of petitioner that the prosecution has refused to present evidence to prove his guilt for purposes
of his bail application and that the Sandiganbayan has refused to grant a hearing thereon hardly finds
substantiation. Neither has the prosecution waived, expressly or even impliedly, its right to adduce evidence
in opposition to the petition for bail of petitioner.

e) There is no basis for the issuance of a writ of habeas corpus in favor of petitioner. Habeas corpus does not
lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued
by a court having jurisdiction thereover.

In G.R. No. 148769 and G.R. No. 149116, the issues for resolution are analogous to those posed in G.R. No.
148965, entitled "Jose 'Jinggoy' Estrada vs. Sandiganbayan [Third Division], People of the Philippines and Office of
the Ombudsman," decided by the Court on 26 February 2002. Petitioner Atty. Edward Serapio stands indicted with
the former President, Mr. Joseph E. Estrada, for plunder. Petitioner is charged with exactly the same degree of
culpability as that of Mr. Jose "Jinggoy" Estrada, thusly:

"AMENDED INFORMATION

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE', TOGETHER WITH Jose 'Jinggoy' Estrada, Charlie 'Atong'
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos
 Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined
and penalized under R.A. 7080, as amended by Sec. 12 of R.A. 7659, committed as follows:

"That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction
of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN
THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself, AND/OR in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY,
RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully
and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION
EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE
AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR a series of overt OR
criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00) MORE OR LESS, FROM ILLEGAL GAMBLING, IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT BY HIMSELF
AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada,
Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration
OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"

Atty. Serapio, in G.R. No. 148769, questions the denial by the Sandiganbayan of his motion to quash the Amended
Information on the ground that, among other things, it alleges, at least as to him, neither a combination or series of
overt acts constitutive of plunder nor a pattern of criminal acts indicative of an overall unlawful scheme in conspiracy
with others. In G.R. No. 149116, petitioner claims that the Sandiganbayan has committed grave abuse of discretion
in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest, as well as the
proceedings in Criminal Case No. 26558), to conduct a determination of probable cause, and to direct the
Ombudsman to conduct a reinvestigation of the charges against him.

In my separate opinion in G.R. No. 148965, which I now reiterate, I have said:

"Plunder may be committed by any public officer either by himself or "in connivance" with other persons; it
may also be committed by a person who participates with a public officer in the commission of an offense
contributing to the crime of plunder. A person may thus be held accountable under the law by conniving with
the principal co-accused or by participating in the commission of "an offense" contributing to the crime of
plunder. The term "in connivance" would suggest an agreement or consent to commit an unlawful act or deed
with or by another, to connive being to cooperate secretly or privily with another.1 Upon the other hand, to
participate is to have a part or a share in conjunction with another of the proceeds of the unlawful act or deed.

"The amended Information alleged "connivance" and would assume that petitioner and his co-accused had a
common design in perpetrating the violations complained of constitutive of "plunder."

The Supreme Court in Estrada vs. Sandiganbayan2 has declared the anti-plunder law constitutional for being
neither vague nor ambiguous on the thesis that the terms "series" and "combination" are not unsusceptible to firm
understanding. "Series" refers to two or more acts falling under the same category of the enumerated acts provided
in Section 1(d)3 of the statute; "combination" pertains to two or more acts falling under at least two separate
categories mentioned in the same law.4

"xxx xxx xxx

"The government argues that the illegal act ascribed to petitioner is a part of the chain that links the various
acts of plunder by the principal accused. It seems to suggest that a mere allegation of conspiracy is quite
enough to hold petitioner equally liable with the principal accused for the latter's other acts, even if unknown
to him, in paragraph (a) of the indictment. This contention is a glaring bent. It is, to my mind, utterly
unacceptable, neither right nor just, to cast criminal liability on one for the acts or deeds of plunder that may
have been committed by another or others over which he has not consented or acceded to, participated in, or
even in fact been aware of. Such vicarious criminal liability is never to be taken lightly but must always be
made explicit not merely at the trial but likewise, and no less important, in the complaint or information itself in
order to meet the fundamental right of an accused to be fully informed of the charge against him. It is a
requirement that cannot be dispensed with if he were to be meaningfully assured that he truly has a right to
defend himself. Indeed, an unwarranted generalization on the scope of the anti-plunder law would be a fatal
 blow to maintaining its constitutionality given the ratio decidendi in the pronouncement heretofore made by
the Court upholding the validity of the statute.

"Given the foregoing exegesis, the petitioner, although ineffectively charged in the Amended Information for
plunder, could still be prosecuted and tried for a lesser offense, for it is a recognized rule that an accused
shall not be discharged even when a mistake has been made in charging the proper offense if he may still be
held accountable for any other offense necessarily included in the crime being charged. It is, however, the
Sandiganbayan, not this Court, which must make this determination on the basis of its own findings."

WHEREFORE, I accept the ponencia in G.R. No. 148468 but, as regards G.R. No. 148769 and G.R. No. 149116, I
vote for the remand of the case to the Sandiganbayan for further proceedings on the bail application of petitioner
and urge that the incident be resolved with dispatch.

Dissenting Opinion

SANDOVAL-GUTIERREZ, J.,:

Once again, the Amended Information dated April 18, 2001 in Criminal Case No. 265581 is subjected to judicial
scrutiny, this time, via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure (G.R. No. 148769)
filed by petitioner Edward S. Serapio. For easy reference, let me quote the Amended Information, thus:

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby
accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a. 'Asiong Salonga'
and a.k.a. 'Jose Velarde,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda
T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, and John Does & Jane Does, of the crime of Plunder, defined and penalized under R.A. No.
7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

'That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction
of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the
President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-
accused, who are members of his family, relatives by affinity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his official position, authority,
relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or
total value of four billion ninety seven million eight hundred four thousand one hundred seventy three
pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or
themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines
through any or a combination or a series of overt OR criminal acts, or similar schemes or means,
described as follows:

a) by receiving or collecting, directly or indirectly, an aggregate amount of Five Hundred Forty-Five

Million Pesos (P545,000,000.00), more or less, from illegal gambling in the form of gift, share,
percentage kickback or any form of pecuniary benefit, by himself and/or in connivance with co-accused
Charlie "Atong" Ang, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES
AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his or their
personal gain and benefit, public funds in the amount of one hundred thirty million pesos
(P130,000,000.00) more or less, representing a portion of the Two Hundred Million Pesos
(P200,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No.
7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, John Doe
a.k.a. Eleuterio Tan Or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas, and other John
Does and Jane Does;

c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service
Insurance System (GSIS) to purchase, 351,878,000 shares of stock, more or less and the Social
Security System (SSS), 329,855,000 shares of stock, more or less, of the Belle Corporation in the
amount of more or less One Billion One Hundred Two Million Nine Hundred Sixty Five Thousand Six
Hundred Seven Pesos and Fifty Centavos [P1,102,965,607.50] and more or less Seven Hundred Forty
Four Million Six Hundred Twelve Thousand Four Hundred Fifty Pesos (P744,612,450.00], respectively,
or a total of a more or less One Billion Eight Hundred Forty Seven Million Five Hundred Seventy Eight
Thousand Fifty Seven Pesos and fifty centavos [P1,847,578,057.50]; and by collecting or receiving,
directly or indirectly, by himself and/or in connivance with John Does and Jane Does, Commissions or
percentages by reason of said purchases of shares of stock in the amount of One Hundred Eighty-Nine
 Million Seven Hundred Thousand Pesos [P189,700,000], more or less, from the Belle Corporation,
which became part of the deposit in the Equitable-PCI Bank under the account of "Jose Velarde";

d) by unjustly enriching himself FROM COMMISSIONS, gifts, shares, percentages, kickbacks, or any
form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of more or
less Three Billion Two Hundred Thirty-Three Million One Hundred Four Thousand One Hundred
Seventy Three Pesos and Seventeen Centavos [P3,233,104,173.17] and depositing the same under
his account name "Jose Velarde" at the Equitable-PCI Bank.

CONTRARY TO LAW.'"2

In G.R. No. 148965,3 I stood apart from the majority of my brethren in denying the Petition for Certiorari and
Mandamus filed by Jose "Jinggoy," E. Estrada against the Sandiganbayan, People of the Philippines and Office of
the Ombudsman. I articulated in my Dissent the various reasons why I could not join the majority in sustaining the
afore-quoted Amended Information. Now, I am taking this second occasion to reiterate them, hoping that the
majority will have a change of mind and resolve to re-examine its Decision.

Consistent with my previous Dissent, it is my view that petitioner Edward S. Serapio, like Jose "Jinggoy" Estrada,
may not be validly prosecuted for the crime of plunder under the Amended Information.

To be forthright, the obvious error in the foregoing Information lies in the fact that it joined together four distinct
conspiracies in a single continuing conspiracy of plunder and indiscriminately accused all the persons who
participated therein of the said resulting crime. Simply put, the Amended Information is a mere fusion of separate
conspiracies. It is akin to that of "separate spokes meeting at a common center, without the rim of the wheel to
enclose the spokes." This is legally impermissible. Such kind of information places the accused's primary right to be
informed of the nature and cause of the accusation against him in jeopardy.

I must reiterate what I have pointed out in G.R. No. 148965.

There exists a distinction between separate conspiracies, where certain parties are common to all the conspiracies,
but with no overall goal or common purpose; and one overall continuing conspiracy with various parties joining and
terminating their relationship at different times.4 Distinct and separate conspiracies do not, in contemplation of law,
become a single conspiracy merely because one man is a participant and key figure in all the separate
conspiracies.5 The present case is a perfect example. The fact that former President Estrada is a common key
figure in the criminal acts recited under paragraphs (a), (b), (c) and (d) of the Amended Information does not
automatically give rise to a single continuing conspiracy of plunder, particularly, with respect to petitioner Serapio
whose participation is limited to paragraph (a). To say otherwise is to impute to petitioner or to any of the accused
the acts and statements of the others without reference to whether or not their acts are related to one scheme or
overall plan. It could not have been the intention of the Legislature, in drafting R.A. No. 7080, to authorize the
prosecution to chain together four separate and distinct crimes when the only nexus among them lies in the fact that
one man participated in all. There lies a great danger for the transference of guilt from one to another across the line
separating conspiracies.

The principle laid down above is no longer novel in other jurisdictions. Various American decisions had expounded
on the matter. In Battle vs. State,6 a judgment of conviction was reversed on the ground that the allegation of
conspiracy in the indictment was insufficient, thus:

"Among the requirements for the allegations in an indictment to be sufficient are (1) the specificity test, i.e.,
does the indictment contain all the elements of the offense pleaded in terms sufficient enough to apprise the
accused of what he must be prepared to meet, and (2) is the indictment pleaded in such a manner as to
enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same
offense. x x x Further, our Supreme Court has recently considered the criteria for sufficiency in conspiracy
cases in Goldberg vs. State, 351 So. 2d 332 (Fla. 1977),7 as this court has likewise done in State vs.
Giardino, 363 So. 2d 201 (Fla. 3d DCA 1978).8 Applying the principles developed in the above cases to the
instant cause, we are of the opinion that Count I of the indictment was insufficient. It is impossible to ascertain
whether the indictment charges that appellant conspired with Acuna and Hernandez jointly or severally, or
whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met
with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown.
Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether
appellant met with persons unknown to plan the murder of Torres. Because appellant was left to guess who
these other conspirators might be and because the vagueness of the allegations did nothing to protect him
from further prosecution, we are of the opinion that they were too vague and indefinite to meet the
requirements set forth above. Accordingly, in our opinion the trial court erred in failing to dismiss Count I of the
indictment for conspiracy against appellant." (Footnote supplied)
In State vs. Harkness,9 a demurrer to the information was sustained on the ground that an information charging two
separate conspiracies is bad for misjoinder of parties where the only connection between the two conspiracies was
the fact that one defendant participated in both. The Supreme Court of Washington ruled:

"[W]e see no ground upon which the counts against both the Harknesses can be included in the same
information. While they are charged with crimes of the same class, the crimes are alleged to have been
committed independently and at different times. The crimes are related to each other only by the fact that the
prescriptions used were issued by the same physician. x x x We find ourselves unable to agree with the
appellant that the misjoinder is cured by the conspiracy charge. It is doubtful if the count is sufficient in form to
charge a conspiracy. x x x Reference is made in the count, to counts one to six, inclusive, for a specification
of the acts constituting the conspiracy. When these counts are examined, it will be seen that they charge
separate substantive offenses without alleging any concert of action between the Harknesses."

Thus, when certain persons unite to perform certain acts, and some of them unite with others who are engaged in
totally different acts, it is error to join them in an information.10 Otherwise stated, defendants charged with two
separate conspiracies having one common participant are not, without more, properly joined, and similarity of acts
alone is insufficient to indicate that series of acts exist.11 Joinder may be permitted when the connection between
the alleged offenses and the parties is the accused's awareness of the identity and activity of the other alleged
participants.12 There must be a showing of one overall common goal to which the participants bind themselves.

Apparently, the factual recitals of the Amended Information fail to sufficiently allege that petitioner Serapio
deliberately agreed or banded with the rest of the accused for the purpose of committing Plunder. There is no
averment that he conspired with them in committing the crimes specified in paragraphs (b), (c) and (d) of the
Amended Information, such as misappropriation of the tobacco excise tax share of Ilocos Sur; receipt of
commissions by reason of the purchase of shares of stock from the Belle Corporation; and acquisition of
unexplained wealth.

To my mind, the Amended Information only makes out a case of bribery "in toleration or protection of illegal
gambling." While he is being charged for the "crime of Plunder, defined and penalized under R.A. No. 7080," his
alleged participation therein is limited to what is specified under paragraph (a) of the Amended Information.

The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts." The
determining factor of R.A. No. 7080, as can be gleaned from the Record of the Senate, is the plurality of the overt
acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed
wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of plunder if he performs
only a single criminal act.13

It is the majority's position that since there is an allegation of conspiracy at the inception of the Amended
Information, the criminal acts recited in paragraphs (b), (c) and (d) pertain to petitioner as well, the act of one being
the act of all. This is an obvious non sequitur. Even the Amended Information, on its face, cannot admit such a
construction.

First, it bears noting that the Amended Information named the co-conspirators of former President Estrada
individually and separately in each of the four predicate offenses. Paragraph (a) named petitioner Jose "Jinggoy"
Estrada, "Atong" Ang, Yolanda T. Ricaforte, Edward Serapio, John Does and Jane Does as co-conspirators in the
crime of bribery. Paragraph (b) named Alma Alfaro, "Atong" Ang, Eleuterio Ramos Tan, Delia Rajas and other John
Does and Jane Does as co-conspirators in the crime of malversation of public funds representing a portion of the
tobacco excise tax share allocated to the Province of Ilocos Sur. Paragraph (c) and (d) named John Does and Jane
Does as co-conspirators in the purchase of the Belle's shares and in the acquisition of ill-gotten wealth in the
amount of P3,233,104,173.17 under the account name "Jose Velarde."

Is it logical to infer from the Amended Information the existence of a single continuing conspiracy of plunder when
the factual recital thereof individually and separately named the co-conspirators in each of the predicate offenses? I
must reecho my answer in G.R. No. 148965, i.e., an outright no. A single agreement to commit several crimes
constitutes one conspiracy. By the same reasoning, multiple agreements to commit separate crimes constitute
multiple conspiracies. To individually and separately name the co-conspirators in each of the predicate offenses is to
reveal the absence of a common design. The explicit clustering of co-conspirators for each predicate offense
thwarts the majority's theory of a single continuing conspiracy of plunder. It reveals a clear line segregating each
predicate offense from the other. Thus, the act of one cannot be considered as the act of all.

Second, the allegation of conspiracy at the inception of the Amended Information basically pertains to former
President Estrada as the common key figure in the four predicate offenses. Allow me to quote the pertinent portion,
thus:

"That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of the
 Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are
members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other
persons, by taking undue advantage of his official position, authority, relationship, connection, or influence,
did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or
indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight
hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more
or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino
people and the Republic of the Philippines through any or a combination or a series of overt OR criminal acts,
or similar schemes or means, described as follows: x x x."

From the foregoing allegation, it can be reasonably construed that former President Estrada conspired with all the
accused in committing the four predicate offenses. However, whether his co-accused conspired with him jointly or
individually for the commission of all, or some or one of the predicate offenses is a question that may be answered
only after a reading of the entire Amended Information. I note with particularity the phrase in the Amended
Information stating, "by himself and/or14 in connivance/conspiracy with his co-accused." The phrase indicates that
former President Estrada did not, in all instances, act in connivance with the other accused. At times, he acted
alone. Consequently, as alleged in the succeeding paragraphs (a), (b), (c) and (d), his co-accused conspired with
him individually and not jointly. Petitioner Serapio cannot therefore be associated with the former President in all the
latter's alleged criminal activities.

Of course, I cannot ignore the use of the phrase "on several instances" and "aggregate amount of P545,000,000.00"
in paragraph (a) of the Amended Information. At first glance, this may be construed as attributing to petitioner
Serapio a "combination or series of overt act." However, a reading of the Amended Information, in its entirety, readily
reveals that the said phrases pertain to former President Estrada, the principal accused in the case. Allegedly, the
former President, on several instances, received or collected an aggregate amount of P545,000,000.00, more or
less from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit "by
himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T. Ricaforte,
petitioner Serapio and John Does and Jane Does. We have already explained the implication of the phrase "by
himself and/or in connivance." Consequently, the acts committed by former President Estrada on the several
instances referred to cannot automatically be attributed to petitioner.

Third, petitioner's criminal intent to advance the unlawful object of the conspiracy (plunder) is not sufficiently alleged
in the factual recitals of the Amended Information. Corollarily, the intent required is the intent to advance or further
the unlawful object of the conspiracy.15 This means that so far as the relevant circumstances are concerned, both
parties to the agreement must have mens rea.16 There is no conspiracy to commit a particular crime unless the
parties to the agreement intend that the consequences, which are ingredients of that crime, shall be caused.17 In
the present case, while there is an allegation that former President Estrada "willfully, unlawfully and criminally"18
amassed ill-gotten wealth in the aggregate amount of P4,097,804,173.17, none is mentioned with regard to
petitioner. There is nothing in the Amended Information that suggests whether or not petitioner has the mens rea to
engage in the commission of the serious crime of plunder. Indeed, there are no allegations that he "willfully,
unlawfully or criminally" joined with the rest of the accused to amass ill-gotten wealth. This renders the Amended
Information fatally defective with respect to petitioner. Every crime is made up of certain acts and intent: these must
be set forth in the complaint with reasonable particularity.19 Imperatively, an information charging that a defendant
conspired to commit an offense must allege that the defendant agreed with one or more persons to commit the
offense.20

And fourth, the statement in the accusatory portion of the Amended Information cumulatively charging all the
accused of the crime of Plunder cannot be given much weight in determining the nature of the offense charged. It is
a jurisprudentially-embedded rule that what determines the "nature and cause of accusation" against an accused is
the crime described by the facts stated in the information or complaint and not that designated by the fiscal in the
preamble thereof.21 In the recent En Banc ruling in Lacson vs. Executive Secretary,22 citing the 1954 case of
People vs. Cosare23 and People vs. Mendoza,24 this Court held:

"The factor that characterizes the charge is the actual recital of the facts. The real nature of the criminal
charge is determined not from the caption or preamble of the information nor from the specification of the
provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts
in the complaint or information."25

Thus, in the event that the appellation of the crime charged, as determined by the public prosecutor, does not
exactly correspond to the actual crime constituted by the criminal acts described in the information to have been
committed by the accused, what controls is the description of the said criminal acts and not the technical name of
the crime supplied by the public prosecutor.26
There is a caveat that an information under the broad language of a general conspiracy statute must be scrutinized
carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge,
that its wide net may ensnare the innocent as well as the culpable.27

Let it be stressed that guilt should remain individual and personal, even as respect conspiracies. It is not a matter of
mass application. There are times when of necessity, because of the nature and scope of a particular federation,
large numbers of persons taking part must be tried by their conduct. The proceeding calls for the use of every
safeguard to individualize each accused in relation to the mass. Criminal they may be, but it is not the criminality of
mass conspiracy. They do not invite mass trial by their conduct. True, this may be inconvenient for the prosecution.
But the government is not one of mere convenience or efficiency. It too has a stake with every citizen, in his being
afforded the individual protections, including those surrounding criminal trials.28 The shot-gun approach of a
conspiracy charge could amount to a prosecution for general criminality resulting in a finding of guilt by association.
The courts should, at all times, guard against this possibility so that the constitutional rights of an individual are not
curbed or clouded by the web of circumstances involved in a conspiracy charge.29

Corollarily, petitioner prays in G.R. No. 148468 for this Court to issue a writ of habeas corpus. The Amended
Information being fatally defective, it is imperative that petitioner be dropped from the Amended Information and
proceeded against under a new one charging the proper offense. In the absence of a standing case against him, the
issuance of a writ of habeas corpus is in order."30

WHEREFORE, I vote to GRANT the petitions in G.R. No. 148769 and G.R. No. 148468.

Footnotes
1 Rollo, G.R. No. 148468, pp. 49–51.

2 Rollo, G.R. No. 149116, p.16.

3 Ibid., pp. 18, 249–281.

4 Ibid., pp. 16–17.

5 Rollo, G.R. No. 146468, p. 54.

6 Ibid., pp. 61–66.

7 Rollo, G.R. No. 149116, p. 412.

8 Rollo, G.R. No. 148468, p. 112.

9 Ibid., p. 114.

10 Ibid., pp. 147–164.

11 Ibid., pp. 43–44.

12 Rollo, G.R. No. 148769, pp. 165–197.

13 Rollo, pp. 17–18.

14 Rollo, p. 46.

15 Supra.

16 Jose "Jinggoy "Estrada vs. Sandiganbayan (Third Division), et al., G.R. No. 148965, February 26, 2002.

17 Luz Balitaan vs. Court of First Instance, et al., 115 SC RA 729 (1982).

18 People vs. Ronnie Quitlong, et al., 292 SCRA 360 (1998).

19 G.R. No. 148965, February 26, 2002.

20 Supra, p. 14.

21 Luz Balitaan vs. Court of First Instance of Batangas, supra.

22 See note 19.

23 People vs. Rodolfo Hilario, et al., 354 SCRA 534 (2001).

24 Territory vs. Goto, 27 Hawaii 65 (1923).

25 Rollo, pp. 194–195.

26 Rollo, p. 21.

27 Rollo, G.R. No. 149116, p. 21.

28 Ibid., p. 25.

29 Ibid., pp. 26–27.

30 Ibid., p. 30.

31 Ibid., pp. 30–33.

32 Ibid., pp. 33–36.

33 Ibid., p. 36.

34 Ibid., p. 39.

35 Ibid., pp. 43–44.

36 Ibid., pp. 295–298.

37 Ibid., p. 298.

38 Ibid., p. 301.

39 Ibid., p. 472.

40 Ibid., pp. 473–480.

41 Ibid., pp. 480–492.

42 335 SCRA 581 (2000).

43 233 SCRA 439 (1994).

44 Rollo, G.R. No. 148468, p. 59.

45 Ibid., pp. 408–409.

46 Rollo, G.R. No. 149116, pp. 412–413.

47 Rolito Go vs. Court of Appeals, 206 SCRA 138 (1992).

48 People vs. Madraga, 344 SCRA 628 (2000); Sanchez vs. Demetriou, 227 SCRA 627 (1993).

49 Rule 112, Sec. 1, Revised Rules of Criminal Procedure; Webb vs. De Leon, 247 SCRA 652 (1995).

50 Supra, pp. 675–676.

51 Metropolitan Bank & Trust Co. vs. Tonda, 338 SCRA 254 (2000); Raro vs. Sandiganbayan, 335 SCRA 581
(2000).
52 Crespo vs. Mogul, 151 SCRA 462 (1987).

53 206 SCRA 138 (1992).

54 Vide Note 4.

55 Rollo, G.R. No. 148468, p. 366.

56 Ibid., pp. 366–367.

57 Ibid., p. 367.

58 Ibid., p. 368.

59 Ibid., p. 369.

60 Ibid., pp. 212–215.

61 Ibid., p. 215.

62 Ibid., p. 216.

63 Salonga vs. Cruz Paño, 134 SCRA 438, 463 (1985).

64 Mendoza vs. CFI of Quezon, 51 SCRA 369 (1973).

65 324 SCRA 321 (2000).

66 Id., p. 330.

67 Herras Teehankee vs. Rovira, 75 Phil. 364 (1945).

68 Lavides vs. Court of Appeals, supra.

69 Rollo, G.R. No. 148468, pp. 37–38.

70 Ibid., p. 374.

71 Rule 114, Sec. 1, Revised Rules of Criminal Procedure.

72 Almeda vs. Villaluz, 66 SCRA 38 (1975).

73 Mendoza vs. CFI of Quezon, 51 SCRA 369 ( 1973).

74 Smith v. State, 78 S 530.

75 Rule 117, Section 1, Revised Rules of Criminal Procedure.

76 Rollo, G.R. No. 148468, p. 373.

77 Ibid., pp. 220–225.

78 Ibid., pp. 112–113.

79 Kotteakos vs. United States, 90 [Link]. 1564 (1946).

80 77 Phil. 55 (1946).

81 Vide Note 16.

82 Ibid., pp. 643–644.

83 Rollo, G.R. No. 148468, p. 112.

84 Ibid., p. 68.

85 Ibid., 233–242.

86 Ibid., p.188.

87 Ibid., p. 210.

88 Ibid., p. 211, [emphasis by respondents].

89 Ibid., p. 211, [emphasis by respondents].

90 People vs. Gako, Jr., 348 SCRA 334 (2000); Goodman vs. De La Victoria, 325 SCRA 658 (2000).

91 Supra.

92 Narciso vs. Sta. Romana-Cruz, 328 SCRA 505 (2000); Tolentino vs. Camano, 322 SCRA 559 (2000).

93 People vs. Nano, 205 SCRA 155 (1992); Herras Teehankee v. Director of Prisons, 76 Phil. 756 (1946).

94 Padilla vs. Court of Appeals, 260 SCRA 155 (1996).

95 Rollo, G.R. No. 148468, pp. 240–241.

96 Ibid., pp. 70–74.

97 Ibid., pp. 75-82.

98 Ibid., pp. 97–100.

99 Ibid., pp. 115–116.

100 Ibid., pp. 233–239.

101 Narciso vs. Sta. Romana-Cruz, supra; SCRA 284 (1995).

102 269 SCRA 220 (1997).

103 Id., p. 513, (emphasis supplied).

104 Rollo, G.R. No. 148468, pp. 31–36.

105 Ibid., pp. 38–39.

106 Ibid., pp. 392-393.

107 141 SCRA 233 (1986).

108 Rollo, G.R. No. 148468, p. 396.

109 Ibid., pp. 246–247.

110 Ibid., pp. 245–251.

111 Paredes vs. Sandiganbayan, 193 SCRA 464 (1991); Luna vs. Plaza, 26 SCRA 310 (1969).

112 Gumabon vs. Director of Prisons, 37 SCRA 420 (1971); citing Harris v. Nelson, 22 L Ed 2d 281.
 113 Gumabon vs. Director of Prisons, supra.

114 Moncupa vs. Enrile, 141 SCRA 233 (1986); Caunca vs. Salazar, 85 Phil. 81 (1949); Villavicencio vs.
Lukban, 39 Phil. 778.

115 Paredes vs. Sandiganbayan, supra; Luna vs. Plaza, supra.

116 Supra.

117 Galvez vs. Court of Appeals, 237 SCRA 685 (1994); Enrile vs. Salazar, 186 SCRA 217 (1990).

118 Herras Teehankee vs. Director of Prisons, 76 Phil. 756 (1946).

Vitug, J.

1 Black's Law Dictionary.

2 G.R. No. 148560.

3 Section 1(d)

"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, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office of position of the public officer concerned;

"3) By the illegal or fraudulent conveyance of disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;

"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 undue 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."

4 Supra, p. 15.

Sandoval-Gutierrez, J.

1 Entitled "People of the Philippines, Plaintiff-versus-Joseph Ejercito Estrada a.k.a. "Asiong Salonga" and
a.k.a. "Jose Velarde" Former President of the Philippines, Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy,
Jane Doe a.k.a. Delia Rajas, John Does and Jane Does, Accused"; For Plunder.

2 Annex "C," Petition, Rollo, pp. 46–49.

3 Entitled "Jose "Jinggoy" E. Estrada, petitioner, -versus- Sandiganbayan (Third Division), People of the
Philippines and Office of the Ombudsman, respondents."
4 16 Am Jur 2d § 11, p. 209.

5 Id.

6 365 So. 2d 1035 (1979).

7 1) The indictment involved in the present case is clearly deficient under the criteria set forth by this Court in
State vs. Smith, 240 So. 2d 807 (Fla. 1970): "An indictment or information for conspiracy must contain a
statement of the facts relied on as constituting the offense in ordinary and concise language, with as much
certainty as the nature of the case will admit, in such a manner as to enable a person of common
understanding to know what is intended, and with such precision that the accused may plead his acquittal or
conviction to a separate indictment or information based on the same facts."

Some of the more patent flaws found in the present indictment are as follows:

1) It is impossible to tell whether it charges that all four appellants jointly conspired with "Rothstein . . .
or MacLean, or both," or whether there were two conspiracies, one between some of the appellants
and Rothstein, and the other between the remaining appellants and MacLean;

xxx xxx xxx

The prejudice to appellants resulting from the defective conspiracy count is itself sufficient to mandate
a new trial on the remaining charges. However, the record before us is replete with errors, several of
which individually and all of which cumulatively would warrant reversal. . . . ."
8 Indictment which charged defendant with conspiracy to commit a felony which failed to state with whom
defendant had allegedly conspired, failed to state unlawful object of charged conspiracy, and failed to state
nature of charged conspiracy under law since it did not sufficiently inform defendant of charges against him.

9 82 P. 2d 541.

10 Wilson vs. United States, 190 Federal Reporter 427 (1911).

11 United States vs. Welch, 656 F 2d 1039 (1981).

12 41 Am Jur 2d § 202.

13 "Senator Paterno Mr. President, not too clear yet on the reason for trying to define a crime of plunder.
Could I get some further clarification?

Senator Tañada Yes, Mr. President.

Because of our experience in the former regime, we feel that there is a need for Congress to pass the
legislation which would cover a crime of this magnitude. While it is true, we already have the Anti-Graft
Law. But that does not directly deal with plunder. That covers only the corrupt practices of public
officials as well as their spouses and relatives within the civil degree, and the Anti-Graft law as
presently worded would not adequately or sufficiently address the problems that we experienced during
the past regime.

Senator Paterno May I try to give the Gentleman, Mr. President, my understanding of the bill?

Senator Tañada Yes.

Senator Paterno I envision that this bill or this kind of plunder would cover a discovered interconnection
of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act when, after the different
acts are looked at, a scheme of conspiracy can be detected, such scheme or conspiracy consummated
by the different criminal acts or violations of Anti-Graft and Corrupt Practices Act, such that the scheme
or conspiracy becomes a sin, as a large scheme to defraud the public or rob the public treasury. It is
parang robo and banda. It is considered as that. And, the bill seeks to define or says that P100 million
is that level at which ay talagang sobra na dapat nang parusahan ng husto. Would it be a correct
interpretation or assessment of the intent of the bill?

Senator Tañada Yes, Mr. President. The fact that under existing law, there can be only one offense
charged in the information, that makes it very cumbersome and difficult to go after these grafters if we
would not come out with this bill. That is what is happening now; because of that rule that there can be
only one offense charged per information, then we are having difficulty in charging all the public officials
who would seem to have committed these corrupt practices. With this bill, we could come out with just
one information, and that would cover all the series of criminal acts that may have been committed by
him.

xxx xxx xxx

Senator Romulo To follow up the interpolations of Senator Paterno and Maceda, this crime of plunder
as envisioned here contemplates of a series or a scheme as responded by the distinguished Sponsor.
 Senator Tañada That is correct, Mr. President. (Record of Senate, June 5, 1989, Vol. IV, No. I-40, p.
1315)

xxx xxx xxx

Senator Romulo Mr. President, I was going to suggest prior to Senator Maceda that on line 24: "SHALL
THROUGH ONE overt or criminal act OR. . . ." I was just thinking of one which is really not a "series."

The President. If there is only one, then he has to be prosecuted under the particular crime. But when
we say "acts of plunder" there should be, at least, two or more. (Record of the Senate, June 6, 1989,
Vol. IV, No. 141, p. 1399).

14 The use of "or" —a function word to indicate an alternative between different or unlike things, state, or
actions negates absolute commonality of design among the former President and all his co-accused. Webster
Third New International Dictionary, 1993, p. 1585.

15 Establishing the intent necessary to sustain a conviction for conspiracy requires showing not only that the
conspirators intended to agree but also that they intended to commit the elements of the underlying offense.

16 In Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001, Justice Josue N. Bellosillo quoting
from the Concurring Opinion of Justice Vicente V. Mendoza, held that "[p]lunder is a malum in se, requiring
criminal intent. Precisely because the constitutive crimes are mala in se the element of mens rea must be
proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime was
committed "wilfully, unlawfully and criminally." It thus allege guilty knowledge on the part of petitioner (Joseph
Ejercito Estrada).
17 Smith, Hogan, Criminal Law, Sixth Edition, 1988, p. 264.

18 This signifies the allegation of mens rea.

19 Pecho vs. People, 262 SCRA 518 (1996).

20 16 Am Jur 2d § 33.

21 United States vs. Lim San, 17 Phil. 273 (1910); United States vs. de Guzman, 19 Phil. 350 (1911).

22 301 SCRA 298 (1999).

23 95 Phil. 657, 660 (1954).

24 175 SCRA 743 (1989).

25 Lacson vs. Executive Secretary, 301 SCRA 298 (1999).

26 Buhat vs. Court of Appeals, 265 SCRA 701 (1996).

27 16 Am Jur 2d § 32, p. 245. Dennis v. U.S., 384 U.S. 855, 86 Ct. 1840, 16 L Ed. 2d 973 (1966).

28 Kotteakos vs. U.S., 328 U.S. 750 (1946).

29 Goldberg vs. State, supra.

30 Aleria, Jr. vs. Velez, 298 SCRA 611 (1998).

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