The Anti Plunder Law in Philippines

Soon after resigning as President of the Philippines in January 2001, petitioner Joseph Estrada was charged at the Sandiganbayan for several offenses allegedly committed while in office, the most serious of them being plunder under Republic Act No. 7080, the Anti-Plunder Law. Estrada moved to quash the information, arguing that Section 1, pars. (d), 2 and 4 of the Anti-Plunder Law were vague and overbroad, and thus offending to the Constitution.

The court, adopting the observations of Justice Vicente V. Mendoza, acknowledged that a statute may be challenged as vague or overbroad because of a possible ‘chilling effect:’

The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deferred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

However, the court held that such rationale does not apply to penal statutes, premised on the apprehension that ‘[c]riminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct.’ The Court ruled that ‘[i]n the area of criminal law, the law cannot take chances as in the area of free speech,’ citing American jurisprudence to the same effect:

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, “we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” In Broadrick v. Oklahoma, the Court ruled that “claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words” and, again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” (underscoring supplied)

Summing up its ruling on the matter, the Court in Estrada held that ‘the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing ‘on their faces’ statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute.’ No license to create vague laws was given, however, as challenges of vagueness ‘as applied’ are still recognized: ‘[w]ith respect to such statute, the established rule is that ‘one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.’ As has been pointed out, ‘vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] ‘as applied’ to a particular defendant.”

2. Romualdez v. Sandiganbayan

Romualdez v. Sandiganbayan allowed the Court to reiterate the doctrine it established in Estrada, providing a more permanent place for that doctrinal rule in Philippine case law. Charged for violating Section 5 of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act), Alfredo Romualdez assailed the constitutionality of the said provision, calling it ‘impermissibly broad.’

Repeating its Estrada ruling that ‘the overbreadth and the vagueness doctrines have special application only to free-speech cases’ and ‘are not appropriate for testing the validity of penal statutes,’ the decision also re-emphasized the Court’s historical unwillingness to void statutes ‘on their faces’ for vagueness:

“To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity.” While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness.

Indeed, an “on-its-face” invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of “actual case and controversy” and permit decisions to be made in a sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words:

“[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.”

For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a “manifestly strong medicine” to be employed “sparingly and only as a last resort.” In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged.

To end its disquisition on the inapplicability facial challenges via the overbreadth and vagueness doctrines on penal laws, the Court in Romualdez concludes that ‘[a]s conduct — not speech — is its object, the challenged provision must be examined only ‘as applied’ to the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness.’

3. David v. Macapagal-Arroyo

Another occasion to rule on an overbreadth challenge arose with David v. Macapagal-Arroyo, where Professor Randolf David, among others, questioned the validity of several presidential issuances promulgated in view of threats to the government. Presidential Proclamation No. 1017 (PP 1017), declaring a state of national emergency, together with General Order No. 5, implementing said presidential proclamation and directing the AFP and the PNP to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence, was assailed as void on its face because of its ‘overbreadth.’ Professor David and the other petitioners claimed that enforcing PP 1017 affected not only unprotected conduct but infringed on rights protected by ‘ 4, Article III of the Constitution as well, sending a ‘chilling effect’ to the citizens.

While not citing its earlier majority decision in Estrada but rather the Concurring Opinion penned by Justice Mendoza in the same case, the Court reiterated that ‘[f]irst and foremost, the overbreadth doctrine is an analytical tool developed for testing ‘on their faces’ statutes in free speech cases, also known under the American Law as First Amendment cases.’ The Court observed that to begin with, the proclamation in question is not primarily directed to speech or even speech-related conduct, but actually a call upon the AFP to prevent or suppress all forms of lawless violence.

More importantly, the Court cited Broadrick v. Oklahoma and held that ‘the overbreadth doctrine is not intended for testing the validity of a law that ‘reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct:”

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when ‘such summary action’ is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct ‘even if expressive ‘ falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. (underscoring supplied)

Dismissing the overbreadth challenge to PP1107’s provisions against ‘acts of terrorism and lawless violence,’ the court ruled that ‘claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only ‘spoken words’ and again, that ‘overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” It was incontrovertible for the court that PP 1017 pertained to a spectrum of conduct, not free speech, which is manifestly subject to state regulation, and thus beyond the pale of an overbreadth challenge.