frank chavez complaint against gloria macapagal arroyo

8/7/2019 Frank Chavez Complaint Against Gloria Macapagal Arroyo

1/23

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE

PADRE FAURA,MANILA

FRANCISCO I.CHAVEZ,

Complainant,

versus

GLORIA MACAPAGAL-ARROYO,

VIRGILIO R. ANGELO, FRANCISCO

DUQUE III, and ALBERTO G.ROMULO,

Respondents.

x x

CASE NO. _______________

For: Plunder, Malversationand/or Illegal Use ofOWWA Fund, Graftand Corruption,Violation(s) of theOmnibus ElectionCode, Violation of theCode of Conduct and

Ethical Standards for Public Officials,Qualified Theft.

COMPLAINT-AFFIDAVIT

I, FRANCISCO I. CHAVEZ, a Filipino citizen, of legal age, underoath, hereby depose and state:

All persons possessing any portion of power ought to be strongly and awfullyimpressed with an idea that they act in trust,

and that they are to account for their conductin that trust to the one great Master, Author,and Founder of society.1

COMPLAINANT

1. I,FRANCISCO I.CHAVEZ, am an attorney-at-law and I aminitiating this Complaint in my capacity as a taxpaying citizen of theRepublic of the Philippines.

2. My legal standing as taxpayer to initiate actions and/orcommence proceedings involving matters of public interest has been

1 EDMUND BURKE,REFLECTIONS ON THE REVOLUTION IN FRANCE (1790].


2/23

Francisco I. Chavez v. Gloria Macapagal-Arroyo, et al.

Complaint-Affidavit Page 2 of 23

recognized and upheld by no less than the Supreme Court of thePhilippines in the cases of Chavez versus PCGG (299 SCRA 744),Chavez versus PEA-Amari (384 SCRA 152); Chavez versus Drilon, et al.

(415 SCRA 44), Chavez versus Alberto Romulo (431 SCRA 534), Chavezversus Comelec (437 SCRA 415), Chavez versus Ermita, et al. (488SCRA 1), Chavez versus Gonzales and National TelecommunicationsCommission (545 SCRA 441).

3. I am represented herein by the CHAVEZ MIRANDAASEOCHE LAW OFFICES, with office address at 8/F, One CorporatePlaza, 845 Arnaiz Avenue, San Lorenzo Village 1223, Makati City,Metropolitan Manila, where I may hereafter be served with copies of allpleadings, motions, manifestations, and other papers or documents by

respondents herein, as well as all notices and processes issued, and all judgments, decisions, orders, resolutions, and other forms ofadjudication promulgated or rendered, by this Honorable Office.

RESPONDENTS

4. RESPONDENT GLORIA MACAPAGAL-ARROYO (hereinafterrespondent GMA) claimed to be the fourteenth (14th) President of theRepublic of the Philippines and is currently a Member of the House of

Representatives, being the Representative of the Second (2nd

) District ofPampanga. She holds office at Room MB-2, House of Representatives,Quezon City, Metropolitan Manila, where she may be served with allnotices and processes issued, and all judgments, decisions, orders,resolutions, and other forms of adjudication promulgated or rendered,by this Honorable Office.

5. RESPONDENT ALBERTO G. ROMULO (hereinafterrespondent Romulo) was, at all times material to this Complaint, the

Executive Secretary of GMA. He may be served with all notices andprocesses issued, and all judgments, decisions, orders, resolutions, andother forms of adjudication promulgated or rendered, by thisHonorable Office at 2290 Magnolia Street, Dasmarias Village, MakatiCity, Metropolitan Manila. Respondent Romulo, as then-ExecutiveSecretary, provoked and facilitated the diversion of OWWA funds.

6. RESPONDENT FRANCISCO T. DUQUE III (hereinafter

respondent Duque) was the President and Chief Executive Officer ofthe PHILIPPINE HEALTH INSURANCE CORPORATION (hereinafterPHIC). He is currently Chair of the CIVIL SERVICE COMMISSION,located at Constitution Hills, Batasang Pambansa Complex Diliman


3/23



1126, Quezon City, Metropolitan Manila, where he may hereafter beserved with all notices and processes issued, and all judgments,decisions, orders, resolutions, and other forms of adjudication

promulgated or rendered, by this Honorable Office. As then Presidentand Chief Executive Officer of PHIC, respondent Duque proposed,instigated and cooperated in the channeling of no less than five hundredthirty, three hundred eighty-two, four hundred forty-six Philippine

Pesos (PhP 530,382,446.00) from OWWA Medicare to the PHIC forpolitical use in the re-election bid of respondent Arroyo in 2004.

7. RESPONDENT VIRGILIO R.ANGELO (hereinafter respondentAngelo) was, at all times material to the present case, the

Administrator of the OVERSEASWORKERSWELFARE ADMINISTRATION(hereinafter OWWA). He may be served with all notices andprocesses issued, and all judgments, decisions, orders, resolutions, andother forms of adjudication promulgated or rendered, by thisHonorable Office at his law known address at OWWA Building, 7thStreet, F.B. Harrison, Pasay City. It was during his stint as OWWAAdministrator that he facilitated, and cooperated in, the diversion ofhundreds of millions of pesos from the OWWA Fund.

STATUTORY BASES

8. The first day of the month of MayLabor Dayis, bothby law and tradition, an international celebration of the laborer. In thePhilippines, and not surprisingly, the cardinal legislation that protectsand enforces the rights of the laborer was enacted on Labor Day of1974. On Labor Day of 1977, the dictator FERDINAND E. MARCOS(Marcos, for brevity), through Letter of Instructions No. 537, re-emphasized the national policy to protect the interest and promote the

welfare of Filipino overseas workers on recognition of their valuablecontribution to the overall development effort. Pursuant thereto, andfor the declared purpose of promoting the well-being of the Filipinooverseas workers, the Secretary of Labor was instructed to create aWelfare and Training Fund for Overseas Workers in the Department ofLabor, the main objectives and purposes of which are:

1. To provide social and welfare services toFilipino overseas workers, including insurance coverage,

social work assistance, legal assistance, placementassistance, cultural services, remittances services, and thelike;


4/23



2. To provide skills and career developmentservices to the Filipino overseas workers and theirreplacements in order to insure adequate supply of

manpower for national economy as well as expect;

3. To undertake studies and researches forenhancement of their social, economic, and cultural well-being; and

4. To develop, support, and finance specificprojects for the benefit of Filipino overseas workers.

5. Said Welfare and Training Fund for Overseas Workerswas initially financed by earnings, fees, and collections from theOVERSEAS EMPLOYMENT DEVELOPMENT BOARD (hereinafter OEDB),the BUREAU OF EMPLOYMENT SERVICES (hereinafter BES) and theNATIONAL SEAMENS BOARD (hereinafter NSB).

6. To administer the Fund, Letter of Instructions No. 537directed the creation of a Board of Trustees composed of the Secretaryof Labor as Chairman, the Undersecretary of Labor as Vice-Chairman,the Executive Directors of the OEDB, the BES, and the NSB, the Director

General of the NYMC and two (2) representatives of the constructionindustry as members.

7. The MINISTER OF LABOR AND EMPLOYMENT (hereinafterMOLE) issued rules and regulations implementing Letter ofInstructions No. 537, which included a schedule of contributions to thefund, to wit.

Foreign employer USD 50 per workerForeign employer hiring

Filipino seamen,domestics, andentertainers

USD 25 per worker

Filipino employer PhP 100 per workerWorkers hired for the

United Kingdom andUnited States markets

USD 25 per worker

Foreign government hiringfor the public service

USD 25 per worker

Members of the diplomaticcorps, United Nations,Agencies andInstrumentalities and

USD 25 per worker


5/23



other internationally-accredited civic andreligious organizations

8. On Labor Day of 1980, Marcos issued Presidential DecreeNo. 1694 reorganizing the Welfare and Training Fund for OverseasWorkers. All contributions to the Welfare and Training Fund forOverseas Workers were transferred to the Welfare Fund.

9. On 16 January 1981, Marcos issued Presidential DecreeNo. 1809 amending Sections 2, 3, and 5 of Presidential Decree No. 1694,which introduced the following significant changes:

a. The contributions to the Welfare Fund wererequired to be deposited in a government bank;

b. The inclusion of the Minster of ForeignAffairs, Minister of Budget in the Board of Trustees;

c. The designation of the Administrator of theWelfare Fund as Vice-Chairman of the Board of Trustees inplace of the Deputy MOLE; and

d. The removal of the ceiling on operationalexpenses equivalent to a maximum of five percent (5%) ofthe investment income of the Welfare Fund.

10. When the OEDB, NSB, and the overseas employmentfunctions of the BES were merged to form the PHILIPPINE OVERSEASEMPLOYMENT ADMINISTRATION (hereinafter POEA) in 1982, thePOEA Administrator assumed his seat in the Board of Trustees of theWelfare Fund.

11. On 31 January 1987, THEN-PRESIDENT CORAZON C.AQUINO issued Executive Order No. 126, renaming the Welfare Fundfor Overseas Workers to Overseas Workers Welfare Administrationor OWWA.

12. On 13 August 1994, THEN-PRESIDENT FIDEL V. RAMOSissued Executive Order No. 195, which provided for the compulsoryMedicare coverage of Filipino overseas contract workers. The OWWA

was tasked to provide seed money and to administer the funds of theprogram.


6/23



13. Republic Act No. 8042, otherwise known as The MigrantWorkers and Overseas Filipinos Act of 1995, also mandated additionalfunctions of the OWWA.

14. Clearly, then, the provisions governing the OWWA andthe statutes and executive issuances governing it, and as distilled fromthe historical development of the OWWA, the funds it administers aresourced exclusively from contributions collected from employers and

Filipino overseas workers for the direct and exclusive benefit of Filipino overseas workers. Collectively, therefore, these amountscomprise a trust fund for the specific, direct, express, and exclusivebenefit of Filipino overseas workers and not for any other purposenoteven for general public purposes. Neither is this a discretionary fund

that may be expended or disbursed from at the discretion of thePresident.

THE FACTS SUPPORTED BY DOCUMENTS

15. Respondent GMA, however, in conspiracy with, and withthe indispensable complicity of, her co-respondents herein, purposelyand systematically orchestrated the diversion and/or misuse of theOWWA fund, financing questionable acquisitions by several Philippine

diplomatic posts in the Middle East, the humanitarian assistance toIraq, and the re-election bid of respondent GMAall of which do notcontribute, and could never have contributed, to the direct andexclusive benefit of the Filipino overseas workers. It is not a questionof whether or not sending a contingent to the Middle East is humane orotherwise beneficial. It is a question of whether, in so doing,respondents were in the regular performance of their duties bysourcing the funding of these activities from the OWWA Fund.

16. In a Memorandum dated 12 March 2003, addressed torespondent GMA, respondent Romulo, in his capacity as then-Executive Secretary, sought the release of two hundred ninety-threethousand, five hundred United States Dollars (USD 293,500.00),purportedly to finance preparatory activities of the Philippine post inKuwait and the purchase of vehicles and stockpiling of the posts inLebanon, Jordan, Oman, Bahrain, Egypt, and Iran, in support of the US-led war in Iraq.

A faithful reproduction of said Memorandum dated 12 March

2003 is attached hereto as AnnexA

for the perusal and readyreference of this Honorable Office and is made an integral part hereof.


7/23



17. Respondent GMA actually gave her imprimatur to theforegoing request for fundswhich had no direct and exclusive benefitto Overseas Filipino Workers (hereinafter OFWs)as readily

gleaned from her marginal note on the Memorandum dated 12 March2003, which read OK charge to OWWA. This latest officially-sanctioned pilferage of the trust fund did not include the amount of

fifty-three thousand United States Dollars (USD 53,000.00), which hadalready been taken from the POEA/OWWA as mentioned in thesameMemorandum.

18. Respondent Romulo subsequently relayed RespondentGMAs approval in a letter dated 15 March 2003 addressed torespondent Angelo, then-OWWA Administrator.

A faithful reproduction of said Letter dated 15 March 2003 isattached hereto asAnnex Bfor the perusal and ready reference of thisHonorable Office and is made an integral part hereof.

19. In yet another Memorandum dated 5 May 2003,respondent Romulo requested the release of no less than five million

Philippine Pesos (PhP 5,000,000.00), supposedly as operating expensesfor the so-called Task Force for the Coordination of Philippine

Humanitarian Assistance to Iraqwhich, again, had absolutely nodirect and exclusive benefit to OWFs.

20. As with the Memorandum dated 12 March 2003,respondent GMA likewise approved the foregoing request ofrespondent Romulo by similarly affixing a marginal note OK fromOWWA.

A faithful reproduction of saidMemorandumdated 5 May 2003 isattached hereto asAnnex Cfor the perusal and ready reference of this

Honorable Office and is made an integral part hereof.

21. In a letter dated 14 May 2003, respondent Romuloinformed respondent Angelo that respondent GMA had approved therelease of the requested funds from the OWWA.

A faithful reproduction of said Letter dated 14 March 2003 isattached hereto asAnnex Dfor the perusal and ready reference of thisHonorable Office and is made an integral part hereof.

22. In a Memorandum dated 1 July 2003, respondent Angeloshelved the General Financial Assistance Program of the OWWA andstoppedthe processingnay, even the acceptanceof claims by OFWs


8/23



thereunder. Said claims amounted to sixteen million, five hundred tenthousand, nine hundred Philippine Pesos (PhP 16,510,900.00), whichroughly corresponded to the USD 293,500.00 requested by respondent

Romulo in his Memorandum dated 12 March 2003, on the pretext offinancing preparatory activities and for the purchase of vehiclesand stockpiling of other posts in the Middle East, in support of theUS-led war in Iraq.

A faithful reproduction of saidMemorandumdated 1 July 2003 isattached hereto asAnnex Efor the perusal and ready reference of thisHonorable Office and is made an integral part hereof.

23. The OWWA Board itself issued Board Resolution No. 38,otherwise known as The OWWA Omnibus Policies, which limitedOWWA services to contributing members only and required OFWsto pay USD 25.00 on a per-contract basis, effectively disenfranchisingother classes of OFWs. This is a flagrant violation of the EqualProtection Clause of the 1987 Philippine Constitution, whichconsequently prompted the PHILIPPINE MIGRANTS RIGHTS WATCH tochallenge the constitutionality of said Board Resolution No. 38,precisely because the laws creating the OWWA created no distinctionson the classes of OFWsi.e., whether contributing or not; whether on

a contract or not.

24. The foregoing facts and circumstances clearly show aninstitutionalized pattern of decreasing expenditures for OFWs bysystematically suspending certain programs and features of the OWWAor reducing the number of beneficiaries, or both, in an obvious attemptto free the OWWA fund for utilization in projects and other activitiescompletely unrelated to the direct and exclusive benefit of OFWs .

25. The previous administration had been in the forefront ofthese developments as shown by a Memorandum dated 20 June 2002signed by THEN-CABINET SECRETARY RICARDO SALUDO, relayingrespondent GMAs instructions for the OWWA Board to issueguidelines for the management and utilization of the OWWA Fundand the streamlining of operations and administrative systems andprocedures.

A faithful reproduction of said Memorandumdated 20 June 2002is attached hereto as Annex Ffor the perusal and ready reference of

this Honorable Office and is made an integral part hereof.

26. This institutionalized de facto control over the OWWAfund led to opportunities for flagrant, unabated abuse, prominent


9/23



among which is the channeling of hundreds of millions of contributionsby OFWs to the PHIC for purely partisan purposes, particularly toenhance the electoral campaign of respondent GMA in the 2004

elections.

27. As far back as 20 November 2002, respondent Duque,then-President and Chief Executive Officer of the PHIC, had submittedto respondent GMA a proposed Executive Order providing for thetransfer of health insurance funds of OFWs from the OWWA to thePHIC. Respondent Duque made no bones about the intended purposeof the proposed Executive Order as readily gleaned from its verywording, thus:

PHIC will need a reasonable lead time to ensuresmooth turnover of OWWA medicare to PHIC and managesome resistance from certain quarters which will beaffected by the change. It is respectfully requested that theproposed Executive Order (EO) be approved by herexcellency before the year ends. The proposed transfer willhave a significant bearing on 2004 elections and on thePresidents desire to provide health insurance to 8Mindigents by the end of 2003. I will be available to explain

in greater detail the far reaching political implications ofthe transfer. May I ask that we meet personally? Mydirect line is . . . . (Emphasis supplied)

A faithful reproduction of saidMemorandumdated 20 November2002 is attached hereto as Annex G for the perusal and readyreference of this Honorable Office and is made an integral part hereof.

28. Accordingly, on 14 February 2003, respondent GMAissued Executive Order No. 182, transferring the Medicare funds of the

OWWA to the PHICdespite the clear absence of any consultationwith the major stakeholders. When Executive Order No. 182 drewprotests from migrant workers groups, respondent Duque wasconstrained to propose its withdrawal on the obvious ground of non-consultation and non-publication prior to its approval as gleaned fromhis letter dated 6 January 2004 addressed to respondent Romulo.

A faithful reproduction of said Letter dated 6 January 2004 isattached hereto asAnnex Hfor the perusal and ready reference of this

Honorable Office and is made an integral part hereof.

29. Despite respondent Duques acknowledgment of non-consultation, however, the OWWA Board, in Resolution No. 005,


10/23



approved the transfer of five hundred thirty million, three hundredeighty-two thousand, four hundred forty-six Philippine Pesos (PhP530,382,446.00) from the OWWA Medicare Fund to the PHIC.

A faithful reproduction of saidResolution No. 005 approved on 2February 2004 is attached hereto as Annex Ifor the perusal and readyreference of this Honorable Office and is made an integral part hereof.

30. While procedural propriety dictates that this Complaint-Affidavit may be properly filed with, and resolved by, the OFFICE OF THEOMBUDSMAN, I cannot nonetheless ignore verities that wouldeffectively render the filing of this Complaint-Affidavit with that office anexercise in futilityand frustration. Recently, the Committee on

Justice of the House of Representatives found the impeachmentcomplaint against OMBUDSMAN MERCEDITAS GUTIERREZ sufficient inform and substance, effectively finding merit in allegations that shevirtually slept on the cases filed with her office and, worse, that she was(and still is) a lackey of respondent GMA.

31. Simply put, I have no reasonable expectation that myComplaint-Affidavit would be favorably resolvedif the Ombudsman iseven minded to act on it in the first place.

32. It is for the foregoing reasons that I am filing thisComplaint-Affidavit with the Department of Justice for the purpose ofconducting the necessary preliminary investigation(s) and, if resolvedfavorably, for transmittal/endorsement to the Office of theOmbudsman or to such other appropriate tribunal or body forappropriate action and/or further proceedings.

THE CHARGES

33. I hereby charge respondents GMA, Angelo, Duque, andRomulo with the following crimes and/or offenses:

a. Violation of Republic Act No. 7080, otherwiseknown as The Anti-Plunder Act;

b. Violation of Articles 217 and 220 of theRevised Penal Code;

c. Qualified Theft;

d. Violation of Republic Act No. 3019, otherwiseknown as The Anti-Graft and Corrupt Practices Act;


11/23



e. Culpable violation of the Constitution,particularly Section 29 (3) of Article VI of the 1987

Philippine Constitution;

f. Violation of Section 261 of the OmnibusElection Code; and

g. Violation of Republic Act No. 6713, otherwiseknown as The Code of Conduct and Ethical Standards forPublic Officials and Employees.

34. I shall discuss the foregoing violations in seriatimhereunder, thus:

A. VIOLATION OF REPUBLIC ACT NO. 7080,OTHERWISE KNOWN AS THE ANTI-PLUNDER ACT

35. The following salient provisions of the Anti-Plunder Actare worth quoting hereunder, thus:

Section 1. Definition of terms. - As used in this Act,

the term:

a. Public Officer means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election orcontract.

b. Government includes the NationalGovernment, and any of its subdivisions, agencies orinstrumentalities, including government-owned or

controlled corporations and their subsidiaries.

xxxxxxxxx.

d. Ill-gotten wealth means any asset, property,business enterprise or material possession of any personwithin the purview of Section two (2) hereof, acquired byhim directly or indirectly through dummies, nominees,agents, subordinates and/or business associates by any

combination or series of the following means or similarschemes:


12/23



1. Through misappropriation, conversion,misuse, or malversation of public funds or raids on the

public treasury;

2. By receiving, directly or indirectly, anycommission, gift, share, percentage, kickbacks or any/orentity in connection with any government contract or

project or by reason of the office or position of the publicofficer concerned;

3. By the illegal or fraudulent conveyance ordisposition of assets belonging to the National

government or any of its subdivisions, agencies or

instrumentalities or government-owned or controlledcorporations and their subsidiaries;

xxx xxx xxx;

5. By establishing agricultural, industrial orcommercial monopolies or other combinations and/orimplementation 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 influenceto unjustly enrich himself or themselves at the expense andto the damage and prejudice of the Filipino people and the

Republic of the Philippines.

Section 2. Definition of the Crime of Plunder;Penalties. Any public officer who, by himself or inconnivance with members of his family, relatives by

affinity or consanguinity, business associates, subordinatesor other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overtcriminal acts as described in Section 1 (d) hereof in theaggregate amount or total value of at least Fifty million

pesos (P50,000,000.00) shall be guilty of the crime ofplunder and shall be punished by reclusion perpetua todeath. Any person who participated with the said publicofficer in the commission of an offense contributing to thecrime of plunder shall likewise be punished for suchoffense. In the imposition of penalties, the degree ofparticipation and the attendance of mitigating andextenuating circumstances, as provided by the RevisedPenal Code, shall be considered by the court. The court


13/23



shall declare any and all ill-gotten wealth and theirinterests and other incomes and assets including theproperties and shares of stocks derived from the deposit or

investment thereof forfeited in favor of the State. [AsAmended by Section 12, Republic Act No. 7659 (The DeathPenalty Law)]

xxxxxxxxx.

Section 4. Rule of Evidence. For purposes ofestablishing the crime of plunder, it shall not be necessaryto prove each and every criminal act done by the accusedin furtherance of the scheme or conspiracy to amass,

accumulate or acquire ill-gotten wealth, it being sufficientto establish beyond reasonable doubt a pattern of overt orcriminal acts indicative of the overall unlawful scheme orconspiracy. (Emphasis supplied)

36. There is no question that respondents herein were, at alltimes material to the present charge, public officers within thepurview of the Anti-Plunder Act. And the amount in questionfivehundred thirty, three hundred eighty-two, four hundred forty-six

Philippine Pesos (PhP 530,382,446.00)is way beyond the jurisdictional amount for the application of the Anti-Plunder Act,which, in defining Ill-Gotten Wealth, makes no distinction on thenature of the amounts plundered, i.e., whether public or private incharacter. And where the law does not distinguish, neither should thecourts of law or, in this case, this Honorable Office.

37. The inevitable question that comes to the fore at thisjuncture, however, is whether respondents, precisely as public officers,had committed any of the acts and/or omissions that amount to the

crime of plunder.

38. Section 1 (d) of Republic Act No. 7080 as amended isworth reiterating and quoting anew, as it enumerates what may becharacterized as predicate crimes in plunder, thus:

d. Ill-gotten wealth means any asset, property,business enterprise or material possession of any personwithin the purview of Section two (2) hereof, acquired by

him directly or indirectly through dummies, nominees,agents, subordinates and/or business associates by anycombination or series of the following means or similarschemes:


14/23



1. Through misappropriation, conversion,misuse, or malversation of public funds or raids on the

public treasury;

xxx xxx xxx

3. By the illegal or fraudulent conveyance ordisposition of assets belonging to the National

government or any of its subdivisions, agencies orinstrumentalities or government-owned or controlledcorporations and their subsidiaries;

xxx xxx xxx

5. By establishing agricultural, industrial orcommercial monopolies or other combinations and/orimplementation 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 andto the damage and prejudice of the Filipino people and theRepublic of the Philippines.

39. It is my position that respondents have committed thefirst, third,fifth, and sixth predicate crimes for a finding of plunder.

Through misappropriation,conversion, misuse, or malversation of

public funds or raids on the public

treasury.

By the illegal or fraudulentconveyance or disposition of assetsbelonging to the National government orany of its subdivisions, agencies orinstrumentalities or government-owned orcontrolled corporations and theirsubsidiaries.

40. Misappropriation is defined as [t]he unauthorized,improper, or unlawful use of funds or other property for purpose other


15/23



than that for which intended.2 Thus, the term may be safely construedto encompass the term misuse. Malversation, in turn, pertains toall grave and punishable faults committed in the exercise of a charge or

commission (office), such as corruption, exaction, concussion, larceny.3

41. Thus, the essential feature of the first predicate crime isthe utilization of public funds for a purpose or purposes other than thator those for which the funds were intended.

42. As extensively discussed above, the OWWA Fund,simply put, was established for the specific, direct, and exclusivebenefit of OFWs. Therefore, for amounts to be disbursed therefrom,there must first be a showing that the expenditures will redound to the

benefit of OFWs. As will be discussed more extensively hereunder,however, it is clear that the items for which amounts were disbursedfrom the OWWA Fund had absolutely nothing to do with theamelioration of OFWs.

43. Anyone, of course, is at liberty to stretch the termpurpose to its ridiculous extremes. But the proposed transfer ofhundreds of millionsspecifically, five hundred thirty, three hundredeighty-two, four hundred forty-six Philippine Pesos (PhP

530,382,446.00)from the OWWA Medicare Fund to the PHIC wasredundant, if not altogether unnecessary. Even when the OWWA Fundwas still known as the Welfare and Training Fund for OverseasWorkers, it had already contemplated, and consequently provided for,insurance coverage

, social work assistance, legal assistance, placementassistance, cultural services, remittances services, and the like.

44. Clearly, then, respondents are guilty of plunder throughthe first predicate crime, as the diversion of the aforementioned amounthad absolutely nothing to do with the intended purposes of the OWWA

Fund.

45. It is also for the foregoing reasons that respondents arelikewise guilty of plunder through the third predicate crime, preciselybecause the disposition of amounts from the OWWA Fund, not beingpursuant to the purposes for which it was established, are consequentlyillegal and fraudulent within the purview of the applicable provision.

2 BLACKS LAW DICTIONARY 998 (6th ed. 1991).

3 BLACKS LAW DICTIONARY 998 (6th ed. 1991).


16/23



By establishing agricultural,industrial or commercial monopolies orother combinations and/or implementationof decrees and orders intended to benefit

particular persons or special interests.

46. It will be recalled that, on 14 February 2003, respondentGMA issued Executive Order No. 182 transferring the Medicare Fundof the OWWA to the PHIC, which, as discussed earlier, amounts tomisappropriation, misuse, and malversation and which, in any event, is

an illegal or fraudulent disbursement punishable as plunder.

47. Curiously, however, respondent Duque, who seemed tohave arrogated upon himself the power to issue an executive orderbydrafting one himself, made it perfectly clear to respondent GMA thatthe transfer of hundreds of millions of the OWWA Medicare Fund tothe PHIC would be politically beneficial to respondent GMA, morespecifically to the latters re-election bid in the 2004 Presidentialelections. These acts, therefore, amount to the implementation of an

order intended to benefit a particular person or a special interest,which is the essence of the fifth predicate crime for a finding ofplunder.

By taking undue advantage ofofficial position, authority, relationship,connection or influence to unjustly enrichhimself or themselves at the expense and tothe damage and prejudice of the Filipino

people and the Republic of the Philippines.

48. Since respondents committed all the foregoing predicatecrimes precisely because of their official positions, they have definitelytaken undue advantage of their official position or authority to unjustlyenrich themselves at the expense of the OFWs for whose benefit theOWWA Fund was established.

B. VIOLATION OF ARTICLES 217 AND 220 OF THEREVISED PENAL CODE.

49. Article 217 of the Revised Penal Code, in turn, provides:CHAPTER FOUR

Malversation of Public Funds or Property


17/23



Article 217. Malversation of public funds orproperty.Presumption of malversation. Any public

officer who, by reason of the duties of his office, isaccountable for public funds or property, shall appropriatethe same, or shall take or misappropriate or shall consent,or through abandonment or negligence, shall permit anyother person to take such public funds, or property, whollyor partially

, or shall otherwise be guilty of themisappropriation or malversation of such funds or

property, shall suffer:

xxx xxx xxx.

xxx xxx xxx.

xxx xxx xxx.

4. The penalty of reclusin temporal in its mediumand maximum periods, if the amount involved is morethan twelve thousand pesos but is less than twenty-twothousand pesos. If the amount exceeds the latter, the

penalty shall be reclusin temporal in its maximum periodto reclusin perpetua.

xxx xxx xxx.

The failure of a public officer to have dulyforthcoming any public funds or property with which he ischargeable, upon demand by any duly authorized officer,shall be prima facie evidence that he has put such missingfunds or property to personal uses.4 (As amended by

Republic Act No. 1060, approved June 12, 1945. Emphasissupplied.)

50. Article 220 of the Revised Penal Code further provides:Article 220. Illegal use of public funds or

property.Any public officer who shall apply any public fund or property under his administration to any publicuse other than that for which such fund or property wereappropriated by law or ordinance shall suffer the penaltyof prisin correccional in its minimum period or a fineranging from one-half to the total of the sum misapplied, if

4 REVISED PENAL CODE, art. 217.


18/23



by reason of such misapplication, any damage orembarrassment shall have resulted to the public service. Ineither case, the offender shall also suffer the penalty of

temporary special disqualification.

If no damage or embarrassment to the publicservice has resulted, the penalty shall be a fine from 5 to 50per cent of the sum misapplied.5

51. As readily gleaned from the provisions quoted above, themere acts of consenting to and permitting the taking of publicfunds will suffice for a violation of this Article. By approving therequests by respondent Romulo for disbursements that were

completely unrelated to the purposes for which the OWWA Fund wasestablishedi.e., for the specific, direct, and exclusive benefit ofOFWsrespondents are guilty of violating Articles 217 and 220.

C. QUALIFIED THEFT

52. Article 310 of the Revised Penal Code defines andpenalizes the crime of Qualified Theft, thus:

Article 310. Qualified theft.The crime of theft shallbe punished by the penalties next higher by two degreesthan those respectively specified in the next precedingarticle, if committed by a domestic servant, or with graveabuse of confidence

, or if the property stolen is motorvehicle, mail matter or large cattle or consists of coconutstaken from the premises of a plantation, fish taken from afishpond or fishery or if property is taken on the occasionof fire, earthquake, typhoon, volcanic eruption, or anyother calamity, vehicular accident or civil disturbance.6

53. Theft, in turn, is committed by any person who, withintent to gain but without violence against or intimidation of personsnor force upon things, shall take personal property of another withoutthe latters consent.7


6 REVISED PENAL CODE, art. 310. As amended by Republic Act 120 and BatasPambansa Blg. 71, May 1, 1980



19/23



54. Qualified Theft, simply put, is theft committed underany of the qualifying circumstances enumerated in Article 310 of theRevised Penal Code, including, among such other circumstances, grave

abuse of confidence. It is my earnest submission that respondents have,through grave abuse of the confidence reposed in them, committedqualified theft.

55. No less than the 1987 Constitution characterizes publicoffice [as] a public trust. And, being public officers, respondents areenjoined, at all times, to be accountable to the people, serve them withutmost responsibility, integrity, loyalty, and efficiency; act withpatriotism and justice, and lead modest lives.8

56. Thus, as public officers, respondents have a fiduciaryduty to preserve the confidence of the trust reposed in them by no lessthan the People of the Republic of the Philippinesspecifically, in thiscase, a subset of the population comprising OFWs.

57. As the then-highest officer of the Republic of thePhilippines, respondent GMA gravely abused the confidence reposedin her by the people by willfully permitting the illegal and fraudulentmisuse, misappropriation, and malversation of the OWWA Fund

(which are merely held and administered in trust by the Government)by, first, permitting the transfer of amounts to defray expensescompletely unrelated to the purposes for which the OWWA Fund wasestablished and, second, allowing the transfer of hundreds of millionsfrom the OWWA Medicare Fund to the PHICboth of which weresystematically orchestrated to illegally fund respondent GMAs re-election bid for the 2004 Presidential elections.

58. This intent to gain by respondents, especially byrespondent GMA, committed in the course of, and precisely due to, the

exercise of their public functions, and in grave abuse of the confidencereposed in them as public officials executing a public trust, suffices for afinding of qualified theft, defined and penalized in Article 310 of theRevised Penal Code.

D. VIOLATION OF REPUBLIC ACT NO. 3019,OTHERWISE KNOWN AS THE ANTI-GRAFT AND CORRUPTPRACTICES ACT

59. Section 3 of Republic Act No. 3019 enumerates thecorrupt practices of public officers, to wit:8 1987PHILIPPINE CONSTITUTION, art. xi, 1.


20/23



Section 3. Corrupt practices of public officers.Inaddition to acts or omissions of public officers already

penalized by existing law, the following shall constitutecorrupt practices of any public officer and are herebydeclared to be unlawful:

(a) Persuading, inducing or influencing anotherpublic officer to perform an act constituting a violation ofrules and regulations duly promulgated by competentauthority or an offense in connection with the officialduties of the latter, or allowing himself to be persuaded,induced, or influenced to commit such violation or offense .

xxx xxx xxx

(e) Causing any undue injury to any party,including the Government, or giving any private party anyunwarranted benefits, advantage or preference in thedischarge of his official administrative or judicial

functions through manifest partiality, evident bad faith orgross inexcusable negligence. This provision shall apply toofficers and employees of offices or governmentcorporations charged with the grant of licenses or permitsor other concessions.

xxx xxx xxx(Emphasis supplied)

60. Again, as with Articles 217 and 220 of the Revised PenalCode, the mere acts of persuading, inducing, and influencing apublic officer to violate rules and regulations duly promulgated by

competent authority or to commit an offense in connection with theofficial duties of the latter, or allowing oneself to be persuaded,induced, and/or influenced, suffices for a violation of Republic ActNo. 3019.

61. The nature of the OWWA Fund is indisputable.Respondentsespecially respondent GMAbeing public officers, arein fact charged with knowledge of this fact. Therefore, to drawamounts from the OWWA Fund for expenditures completely unrelatedto the purposes for which it was established constitutes an offense inconnection with respondents respective official duties.

62. Indeed, not only have they persuaded, induced, orinfluenced each otherspecifically through the various memoranda


21/23


22/23



F. VIOLATION OF SECTION 261 OF THE OMNIBUSELECTION CODE

67.

Section 261 of the Omnibus Election Code expresslyprohibits the use of public funds and/or money deposited in trust foran election campaign.10 Respondents can lie, and have in fact lied,through their teeth and deny their criminal intent to divert hundreds ofmillions from the OWWA Fund to the PHIC for partisan politicalpurposes, particularly to ensure the re-election bid of respondent GMAin the 2004 Presidential Elections.

68. Considering the communication by respondent Duque torespondent GMA, however, specifically the partisan political

ramifications of the diversion of said amounts to the PHIC, it is clearthat there exist sufficient grounds to investigate the proposed transferof funds to the PHIC.

G. VIOLATION OF REPUBLIC ACT NO. 6713,OTHERWISE KNOWN AS THE CODE OF CONDUCT ANDETHICAL STANDARDS FOR PUBLIC OFFICIALS ANDEMPLOYEES

69.

Public officials and employees are bound to beaccountable to the people and to discharge their duties with utmostresponsibility, integrity, competence, and loyalty and to act withpatriotism and justice, lead modest lives, and uphold public interestover personal interest.

70. Respondentsespecially respondent GMAhaveflagrantly and shamelessly violated the trust reposed in them by thePeople of the Republic of the Philippines by systematically raiding andpilfering the OWWA Fund.

71. Further, Section 4 (a) of Republic Act No. 6713, otherwiseknown as The Code of Conduct and Ethical Standards for PublicOfficials and Employees, expressly and categorically enjoins all publicofficials and employees to always uphold the public interest over andabove personal interest and for [a]ll government resources andpowers of their respective offices [to] be employed and used efficiently,effectively, honestly and economically, particularly to avoid wastage inpublic funds and revenues.11

10 OMNIBUS ELECTION CODE, 261.11 R.A. No. 6713, 4 (a).


23/23

frank chavez complaint against gloria macapagal arroyo

Documents