A bad marriage
HIDDEN AGENDA - Mary Ann LL. Reyes (The Philippine Star) - August 18, 2019 - 12:00am

One newspaper earlier reported that a sizeable number of dealers of a major multinational oil company operating in the country are leaving en masse in favor of a smaller but very aggressive and relatively new player in the industry.

And why is this happening? These dealers say that their relationship with the multinational petroleum firm has been one-sided. If the company is not satisfied with a dealer’s performance, their contracts are immediately terminated but if it is the dealer who is dissatisfied, they are forced to stay and threatened with breach of contract among other contract legalities.

Yes, many dealers have left this huge oil company. But their legal nightmares are just starting. A classic case of David versus Goliath, given the multinational’s financial muscle.

Worse, some company officials have gone to the extent of reminding those dealers who are merely suspected of planning to move to the competitor that they will face legal actions if they push through with their plans.

One former dealer who recently shifted to this strongly emerging competitor has been quietly suffering from a relentless stream of lawsuits based on allegedly exaggerated claims of losses and legal technicalities. 

He was surprised, but comforted in a strange way, to find out that he is not alone as many fellow dealers are also facing threats and legal harassments. 

All these entrepreneurs want is to exercise their right to make good business decisions for themselves, their employees, as well as their customers amid increasing competition in the market and challenges in operational costs.

The dealers feel there may be no way out of this dysfunctional business relationship without leaving them unscathed. 

More integrity and responsibility is also expected of a publicly listed company. A deregulated oil market does not mean freedom to engage in unsound business practices as a means of staving off competition.

Legal talk

In a case involving plunder, what happens if the main plunderer who must be a public official is not identified?

The Supreme Court’s en banc ruling on April 18, 2017 denying the motion for reconsideration filed by the Office of the Ombudsman in connection with the SC’s earlier decision dismissing the plunder case against former president Gloria Macapagal-Arroyo provides the answer to this legal question.

According to the 2017 decision of the High Tribunal, “the requirements for the identification of the main plunderer and for personal benefit in the predicate act of raids on the public treasury have been written in RA 7090 (plunder law) itself as well as embedded in pertinent jurisprudence.”

The SC explained that the law on plunder requires that a particular public officer must be identified as the one who amassed, acquired or accumulated ill-gotten wealth because it plainly states that plunder is committed by any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth in the aggregate amount or total value of at least P50 million through a combination or series of overt criminal acts.

This interpretation, the Court said, is supported by the case of Estrada vs. Sandiganbayan where the SC in this earlier case explained that the nature of the conspiracy charge and the necessity for the main plunderer for whose benefit the amassment, accumulation and acquisition was made.

In the Estrada case, the SC noted that that the gravamen of the conspiracy charge is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax…; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada.

Because plunder is a crime that only a public official can commit, the High Court noted that the identification in the information of such public official as the main plunderer among the several individuals charged is logically necessary under the law itself. In the Arroyo case, there were 10 public officials charged but it was necessary to identify the main plunderer/s who amassed wealth with a total value of at least P50 million.

And because the prosecution in the Arroyo case failed to properly allege the main plunderer, this should be fatal to the case against the petitioners for violating the rights of each accused to be informed of the charged against each of them, not to mention that the Plunder Law itself requires in the criminal charge for plunder against several individuals that there must be a main plunderer and her co-conspirators.

In her most recent filing with the Sandiganbayan in connection with the plunder case filed against former Senator Jinggoy Estrada, his assistant Pauline Therese Mary Labayen and alleged private co-conspirators including Janet Lim Napoles, the latter asked the court to reconsider its earlier resolution and instead dismiss the case against her for insufficiency of evidence.

Napoles, in her supplemental motion for reconsideration, said that contrary to the Sandiganbayan’s earlier position, the SC’s ruling in the Arroyo case is applicable in the Estrada case due to the failure of the information filed to identify a main plunderer.

Basically, what Napoles is saying is that the Sandiganbayan cannot presume that both Estrada and Labayen are the main plunderers when the information filed by the Office of the Ombudsman failed to identify who the main plunderer/s is or are.

She pointed out that what the assailed resolution is saying is that if the information charges only public officers for plunder, the main plunderer must be identified as in the GMA case, but if the information involves private persons as co-conspirators of the public officers, then all the public officers are deemed or assumed to be the main plunderers. This, she stressed, has no basis in law and prevailing jurisprudence.

Napoles added that while there can be several plunderers, there is only one main plunderer for whose benefit the amassing, accumulation and acquisition of ill-gotten wealth is made.

She also said that the Sandiganbayan erred in saying that since the information contains allegation of conspiracy, the requirement of the identification of the mastermind becomes unnecessary as the essence of conspiracy is incompatible with individual or separate liability.

Napoles, through her lawyer, explained that the resolution might be confusing the element of plunder of amassing, accumulating and/or acquiring ill-gotten wealth  by the main plunderer with conspiracy which is a means of committing plunder. “There should be no confusion between the two because while one is an element of the crime itself, the other is just a means of committing the crime,” she added.

For comments, e-mail at mareyes@philstarmedia.com

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