THE ESSENTIAL THING

Forfeiture of illegally obtained wealth (part 1 of 3)

Ma. Merceditas N Gutierrez, Ombudsman

RA 1379, enacted way back in 1955, gave the State the power to institute forfeiture proceedings against any public officer or employee to recover illegally-obtained property or wealth.  The 1987 Constitution expressly recognized this authority in Sec. 15 of Article XI which dealt on the accountability of public officers.  But the constitution clearly added that said power may be exercised not only against the officer concerned, but against his nominees and transferees.  It also more positively stated that said power cannot be barred by prescription, laches or estoppel. The provision under par. 2 of RA 1379 that the resignation of the official, his separation or dismissal would not prevent the filing of a forfeiture case against him was untouched.

In aiming at the property of a public officer or employee that is manifestly out of proportion to his salary and his other income from lawful sources, forfeiture proceedings seek to divest ownership in said property from the public officer or his dummies, and transfer it to the State on the theory that it is really State property or property stolen from the people.  Forfeiture proceedings are civil and not criminal in nature, and may be proved by a preponderance of evidence only, not proof beyond a reasonable doubt.  As a consequence, a public officer charged with illegally acquired wealth cannot invoke rights and defenses normally available to an accused in a criminal case.  Forfeitures are also proceedings in rem, that is, they look at the property and not the person involved; so they survive the death of the officer, as seen in Republic vs Sandiganbayan (1994).

Moreover, forfeiture proceedings can be filed as independent civil actions in accordance with Sec. 3 of Executive Order No. 14, which took effect in 1986. That means, forfeiture proceedings are separate and distinct from criminal cases, and so they can be initiated: (a) before a criminal case against the public official and his dummies is filed, (b) even while criminal proceedings are already filed and on-going, (b) even if the filing of the forfeiture case had not been reserved in the criminal case, and (c) regardless of the result of the criminal case.  All these effectively mean that forfeiture proceedings can be sui generis or stand-alone cases.

It used to be that the courts that had exclusive jurisdiction to try forfeiture cases were the then Courts of First Instance, now Regional Trial Courts.  But in June 1978 the exclusive jurisdiction to try forfeiture cases was transferred by PD 1486 to the Sandiganbayan Court, whose justices-members have the same rank and privileges as justices of the Court of Appeals.  Today, that exclusive jurisdiction has remained with the Sandiganbayan under Sec. 4(A) of PD 1606 and its subsequent amendments (RA 7975, RA 8249), which re-created and reorganized that court.

Sec. 15 of the Ombudsman Act (RA 6770), gives our office the authority to “investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 (note: the date of the EDSA revolution) and the prosecution of the parties involved therein.”  In Republic vs Sandiganbayan (1991), the Supreme Court interpreted this to mean that as far as property unlawfully-acquired before said date is concerned, it is the Solicitor General that can file the forfeiture proceedings on behalf of the State, but that for property illegally obtained after said date, it is already our office that has the right to file the forfeiture case. Even then, the high tribunal clarified it is our office, in line with its general power to investigate wrongdoing alleged to have been committed by public officials, which can investigate forfeiture cases even when the property involved had been acquired prior to February 1986.

To guard against the use of forfeiture as a political harassment tool, Sec. 2 of RA 1379 prohibits the filing in court of a forfeiture petition within one year before a general election or within three months before a special election.  It also prohibits, under Sec. 6, the court from rendering a judgment in an on-going forfeiture case within six months before a general election or within three months before a special election.  I personally understand this judgment to mean either one for forfeiture or not, inasmuch as political harassment may be committed against a sitting administration as much as against an avowed enemy of that administration.

In forfeiture proceedings, the State is helped by a prima facie presumption under Sec. 2 of the old law that when a public officer or employee is shown to have acquired during his incumbency property that is manifestly out of proportion to his salary and other lawful income, said property shall be presumed to have been unlawfully acquired.  For the State this essentially requires describing and methodically laying down the kind and amount of property and money acquired by the public official during the time he was in office and comparing them against his total government salaries and benefits.  But this is not as easy as it sounds, nor the process involved simple, as shown in the protracted battle between the government and the Marcoses.

More of this as we visit the subject of forfeiture again in subsequent articles of this column.  I am writing this series, so that more and more of our people will have a better idea of what forfeiture is all about and why they should support government when it initiates the same on their behalf.

Published on the August 7, 2009 issue of Business Mirror

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