THE ESSENTIAL THING

Forfeiture of illegally obtained wealth (part 2 of 3)

Ma. Merceditas N. Gutierrez, Ombudsman

In this issue, we continue the installments on understanding forfeiture of illegally-obtained wealth.  We ended the last time with a statement that in forfeiture proceedings, the State is helped by a prima facie presumption in its favor.  That presumption states that property or wealth manifestly out of proportion to a public officer’s salary and other legitimate income is presumed illegal wealth.  For the state, this requires simply laying down the wealth obtained by the officer concerned and comparing it to his total government salary and benefits.  But we also said this is not as easy as it sounds, nor is the process involved free from complication.

Still the usefulness of the presumption is that if, after government has shown the manifestly-out-of-proportion or big discrepancy in the figures referred to above, the said officer fails to offer convincing explanation to show that the discrepant wealth had in fact been acquired lawfully, the proposition that the same is indeed illegal wealth and hence forfeitable is considered proved.  And because of this, summary judgment may be invoked by government to shorten the proceedings, put a fast closure to it and make the case one more example of why government officials should not, while in the guise of serving the public, also take advantage of their position to enrich themselves.

To guard against the dissipation of property suspected of being illegally acquired, the law prohibits the public officer charged from transferring the same to any person, upon pain of imprisonment or fine, or both.  The person who accepts such property knowingly is also subject to the same penalty.  The fact that, before investigation into alleged illegal wealth has begun, a piece of property had already been transferred to another person, should not prevent the State from including said property in the petition for forfeiture, as long as it can be proved that the same had really been obtained illegally.

And the fact that it was transferred innocently should not help the officer any either, since in special laws, such as RA 1379, a person’s state of mind is irrelevant in determining violations.  Of course, once forfeiture is decreed a question now arises whether or not the property transferred to an innocent purchaser should still be recovered.  I believe due consideration for the rights of innocent parties would dictate that forfeiting just the proceeds of the transfer would then suffice.  Otherwise double forfeiture would also ensue – one justly to a wrongdoer, and the other unjustly to the innocent purchaser – a situation not likely contemplated by the law.

In the investigation of allegations of illegal wealth, it is often the case that the public officer charged or his dummy invoke their Constitutional right against self-incrimination when they are asked to produce and bring along passbooks, securities, records and other evidences of financial transactions. RA 1379 positively states that they shall not be excused from producing those documents and papers.  However they cannot be criminally prosecuted for any matter they were compelled to testify on, or evidence of which they were compelled to produce, after so invoking their right, except that they cannot escape: (a) subsequent prosecution if they testified falsely, and (b) administrative sanctions, like demotion or removal, in any case.

In Ong vs Sandiganbayan (2005), the High Court made a distinction between aiming for proofs of assets and proofs of the sources of funds used to acquire them.  The court held that while requiring the production of documents to prove the existence of assets other than those already disclosed by the public officer or known to investigators is a self-incrimination issue, the request to produce documents to show the source of funds used to acquire assets already disclosed or known is not.  The difference, the court reasoned, lies in the fact that in the first, the production of proofs of other assets would make those assets suspect, thereby incriminating the officer, while in the second the production of the requested documents would precisely show that the assets were lawfully acquired.

In addition to the presumption mentioned above, another thing that may also help the State successfully prosecute forfeiture cases is the power of the Solicitor General or the Ombudsman, in a proper case, to grant immunity from criminal prosecution to any person who cooperates with the State and testifies to the unlawful manner under which the wealth, or any part of it, was illegally acquired.  But before the power may be exercised, the SolGen or the Ombudsman prosecutor must show to the court that the cooperation of said person is really necessary to prove a violation of the law.

I temporarily end here  to conclude this subject of forfeiture of illegally acquired wealth in the next article for this column.  I hope that with these series, 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. ¡

Original published on the August 14-15, 2009 issue of the Business Mirror.

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