Malversation Over Plunder:
Is the Government Evading Justice in Choosing a Lesser Crime?


By: Atty. Manuel Alexander O. Soriano and Atty. Rhenelle Mae O. Operario


For us Filipinos, the arrival of the “Ber” months marks the joyful advent of the Christmas season. Around this time, many of us typically get busy with our early Christmas preparation.

This year, however, the glee and sparkle brought about by the Christmas season will have to wait. Nevertheless, this is not out of despair but to give way to truth. Instead of lighting up our homes with “parols,” we are drawn to a brighter light, a passionate fire. Our nation has finally woken up. People are paying attention now.

With the continuous downpour, the anomalous Flood Control Projects could no longer be contained. Ironically, the involved are now haunted and exposed by the very thing they vowed to prevent, the flood.

As the people grew frustrated and weary, we find solace in knowing that truth is beginning to seep through, like a brook quietly streaming through the meadows. We have another chance to start anew.

Nevertheless, in seeking truth, the people do not forget. The government, in representation of the people, swiftly responded to the call. The news reported that the Department of Public Works and Highways filed criminal charges for Anti-Graft Law, Malversation of Public Funds, and Procurement Law violations, against numerous Bulacan Engineers and several project contractors.1

Now, a curious question must be asked, “Why did the government opt to file for Malversation instead of Plunder?”

It is settled in our jurisprudence, as demonstrated in the case of Joseph Estrada vs Sandiganbayan,2 that Plunder, as provided under Republic Act No. 7080 is a heinous crime and a crime malum in se. As such, the crime is considered to be an inherently evil or wrong act.

Commonly referred to as “pandarambong,” Plunder was precisely enacted to counter corrupt practices in the government. In other words, its primary purpose is to serve as a deterrent against corrupt government officials. Thus, whenever a public officer is accused of corrupt practices, it is often presumed that a Plunder case will be filed. Notably, consistent with its purpose as a deterrent against corrupt practices, Plunder carries the severe penalty of reclusion perpetua.

Considering the following, the most obvious crime to be filed against those implicated in the anomalous Flood Control projects is Plunder. Alas, that is not the case. A lesser known crime, Malversation is filed in its stead, among others. So, why was Plunder not filed?

A doubt arises: “Is the Government deliberately evading justice in choosing and filing a lesser crime?”

At first glance, Plunder appears to be the most obvious charge against the involved persons in the present issue. However, those knowledgeable with the intricacies of the law and jurisprudence understand that Plunder is highly technical and difficult to prove. The author even dares to say, at times, the crime is rendered impotent by its very law creating it.

In fact, from February 1979 to 31 July 2025, only twelve (12) cases of Plunder have been filed with the Honorable Sandiganbayan.3 More importantly, from those cases, the last known high-profile politician convicted of Plunder was Former President Joseph Estrada,4 who was shortly pardoned by Former President Gloria Arroyo.5

To understand the technicalities of Plunder and the corresponding difficulty in prosecuting the same, one must familiarize the essential elements of Plunder. In the case of Girlie Lingad vs People of the Philippines,6 the elements of the crime are as follows,

"(1) That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates, or other persons;

(2) That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the particular overt or criminal acts; ” (Emphasis and underscoring supplied)

(3) That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.” (Emphasis and underscoring supplied.)

The second element of Plunder requires that the Accused must have committed at least two predicate crimes. Should only one instance of a predicate crime be established beyond reasonable doubt, the second element is not satisfied. This element has been clarified in the case of Jose Estrada vs Sandiganbayan,7 wherein the Supreme Court explained that “[s]eries refers to a repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word combination contemplates the commission of at least any two different predicate acts in any of said items.” (Emphasis and underscoring supplied.)

A predicate crime is an act or omission, separately punishable by our laws, which is a component of another crime or offense. Section 1(d) of R.A. No. 7080 enumerated the predicate crimes of Plunder, to wit,

1) “Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests;

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines;” and

7) A similar means or scheme to those enumerated in the above-mentioned provision.

In the above-cited case of Joseph Estrada vs Sandiganbayan (supra), the Supreme Court explained that “the quantum of proof required to prove the predicate crimes in plunder is the same as that required were they separately prosecuted.” Simply put, the predicate crime must be also proved beyond reasonable doubt. This is because the commission of the predicate crime is an essential element to establish the crime of Plunder.

Thus, not only must the predicate crime be proved beyond reasonable doubt, the elements of such crime must be expressly alleged in the Information for Plunder. In the case of Sergio Valencia vs Sandiganbayan,8 the Supreme Court held that “[i]n thereby averring the predicate act of malversation, the State did not sufficiently allege the aforementioned essential elements of malversation in the information. The omission from the information of factual details descriptive of the aforementioned elements of malversation highlighted the insufficiency of the allegations. Consequently, the State's position is entirely unfounded.” (Emphasis and underscoring supplied.)

To add to this, in the case of Gloria Arroyo vs People of the Philippines,9 the Supreme Court introduced the concept of “main plunderer.” The High Court held that “[i]ndeed, because plunder is a crime that only a public official can commit by amassing, accumulating, or acquiring ill-gotten wealth in the aggregate amount or total value of at least ₱50,000,000.00, the identification in the information of such public official as the main plunderer among the several individuals thus charged is logically necessary under the law itself.”

Finally, the law is clear, the Accused, by himself or in connivance with other persons, must have acquired at least FIFTY MILLION PESOS (Php 50,000,000.00).

All of these show that Plunder is a highly technical offense that is difficult to prove. To reiterate, for an Accused to be found guilty of this offense, the following must be established beyond reasonable doubt:

1. The Accused must have committed at least two predicate crimes;
2. All the elements of the predicate crime/s must be alleged in the Information for Plunder;
3. The elements of such predicate crime/s must be proved beyond reasonable doubt;
4. The Prosecution must identify the main plunderer, who is a government official; AND
5. The Accused must have amassed or otherwise acquired at least FIFTY MILLION PESOS (Php 50,000,000.00).

Equally important to note is that one of the predicate crimes enumerated in Section 1(d) of R.A. 7080 is Malversation. Thus, in prosecuting Plunder, wherein the predicate crime is Malversation, such in the present case, the crime of Malversation must be alleged in the Information for Plunder, and proved beyond reasonable doubt. In other words, the Prosecution is burdened to prove at least two crimes/offenses, Malversation and Plunder.

Now, the dilemma becomes apparent, what is the advantage of filing for Plunder, when the Prosecution also needs to prove beyond reasonable doubt the elements of Malversation?

Is it the severity of the penalty imposed on Plunder? –No, that is not always the case. The Revised Penal Code, as amended, provides that Malversation carries with it the penalty of prision correccional to reclusion perpetua, in the event that the amount involved exceeds EIGHT MILLION EIGHT HUNDRED THOUSAND PESOS (Php 8,800,000.00).

Is it because Plunder is a non-bailable offense? -The answer is still no. As previously discussed, Malversation may also be punishable by reclusion perpetua, when the amount involved exceeds Php 8,800,000.00. As opposed to the higher threshold of Fifty Million Pesos as required in Plunder cases, Malversation becomes a non-bailable crime with a significantly lower involved amount.

Is it because Plunder carries the accessory penalty of forfeiture of the ill-gotten wealth in favor of the government? –As will be shown, this is still not the reason. In case of Malversation, Article 100 of the Revised Penal Code, as amended, expressly provides that “[e]very person criminally liable for a felony is also civilly liable.” Further, Article 104 of the same law provides that civil liability arising from criminal acts includes (1) Restitution; (2) Reparation of the damage caused; and (3) Indemnification for consequential damages. Thus, should the Accused be convicted of Malversation, the Court may order the return of the misappropriated amount.

These show that at present, the Prosecution of Plunder does not have a practical advantage over Malversation.

To add, in prosecuting Plunder cases, the government must carefully trace and track the ill-gotten wealth, which must amount to at least Fifty Million Pesos. Oftentimes, the government is forced to rely on whistle-blower/s to obtain valuable pieces of information and critical documents. Without the testimonies of the whistle-blowers and the documents they provided, securing a conviction for Plunder is especially difficult.

Such exceedingly burdensome task of the Prosecution and their dependence on unreliable testimonies of whistleblowers are unlikely in cases of Malversation. One of its essential elements is “that those funds or property were public funds or property for which the offender was accountable.” This pivotal element of the crime can be proved by readily available documents showing that public funds were in the custody or control of an accountable public officer. Upon proving this, the burden shifts to the Accused to prove that such public funds were appropriated for the purpose specified. With this, unreliable and controversial testimonies of the whistle-blowers may be dispensed with.

With these, the author is of the opinion that Malversation is not a lesser crime than Plunder. In fact, it best fits the description of crime to be charged against the persons involved. Thus, opting to file Malversation instead of Plunder is a brilliant legal tactic by the government. Given the circumstances, Malversation may be the most effective path to accountability.

1      Trixee Rosel, “DPWH files graft cases vs 20 Bulacan engineers, 4 contractors over flood control projects anomalies,” The Manila Bulletin, 11 September 2025. https://mb.com.ph/2025/09/11/dpwh-files-graft-cases-vs-20-bulacan-engineers-4-contractors-over-flood-control-projects-anomalies

2      G.R. No. 148560, 19 November 2001

3  “Statistics on Cases Filed, Pending and Disposed of as of July 31, 2025,” Sandiganbayan, 31 July 2025. https://sb.judiciary.gov.ph/wp-content/uploads/2025/09/Statistical%20Reports/Statistics%20on%20Cases%20Filed,%20Pending%20and%20Disposed%20as%20of%20July%2031,%202025.pdf

4      People of the Philippines vs Joseph Ejercito Estrada (Criminal Case No. 26558, 12 September 2007).

5   Manny Mogato, “Former Philippine president Estrada pardoned,” Reuters, 25 October 2007. https://www.reuters.com/article/world/former-philippine-president-estrada-pardoned-idUSMNB00071/

6      G.R. No. 224945, 11 October 2022

7      G.R. No. 148964, 26 February 2002

8      G.R. No. 220398, 10 June 2019

9      G.R. No. 220598, 18 April 2017

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