Only the President can

I READ the three recent resolutions of the Second Division of the Sandiganbayan (SBN), composed of Presiding Justice Edilberto G. Sandoval (chairman), Justices Teresita V. Diaz-Baldos and Samuel R. Martires (members), regarding the plea bargain agreement (PBA) between the Office of the Ombudsman (OMB) and Maj. Gen. Carlos F. Garcia.

Insufficient evidence? Both dated May 9, 2011, the 157-page resolution penned by Martires denied the intervention of the Office of the Solicitor General (OSG) “for utter paucity of merit,” while the 22-page resolution written by Baldos approved the PBA. The 3-page resolution, dated May 6, 2011, written by Sandoval, denied the motion for his inhibition.

Martires excoriated the prosecution for filing a defectively worded information and for miserably failing “to prove the guilt of the accused beyond reasonable doubt.” He stressed that instead of acquitting Garcia and getting nothing from his allegedly plundered wealth, the SBN acted prudently in approving the PBA, thereby enabling it to convict the accused for direct bribery and facilitating money laundering, and to recover P135 million.

To be fair, Martires devoted more than a hundred pages examining, scrutinizing and reviewing the information filed by the OMB and the prosecution evidence—both testimonial and documentary—before concluding, “All told, the prosecution has failed to prove that the accused is guilty beyond reasonable doubt of the crime of plunder.”

Doctrinally, the factual findings of SBN justices have great persuasive value because they have seen the demeanor of the witnesses on the stand and had a first-hand look at the documents. To succeed in overturning these findings, the OSG (should its intervention be allowed later) must wade through this maze of evidence and show that the SBN gravely erred in its factual evaluation.

Why no demurrer? Having no access to the records, I am not in a position to evaluate the SBN’s factual findings. Nonetheless, Garcia’s defense counsel (Constantino de Jesus) had direct access to the evidence. He must have studied it and concluded that it was sufficient to convict the accused of plunder. He must have thought that it was in Garcia’s best interest to conform to the PBA instead of risking a conviction for plunder and losing the whole amount of P303 million.

If he thought the evidence was weak, he would have filed a demurrer to the evidence. As the SBN plainly admitted, this motion would have been granted and the accused acquitted without having to surrender anything. But he did not. This merely shows that he believed the evidence of guilt was enough to convict his client of plunder. Because of this, it indeed behooves the OSG to review the records meticulously and show that the evidence proves Garcia guilty of plunder beyond reasonable doubt.

From the acidic reactions of President Benigno Aquino III and Justice Secretary Leila de Lima, the government wants the PBA scuttled, and Garcia prosecuted and convicted of plunder. How?

Under the Rules of Court, a plea bargain may be allowed only “with the consent of the prosecutor and the offended party.” Clearly, the OMB prosecutors consented via their signatures on the PBA. But the PBA does not mention at all the offended party, who/which therefore could not have consented to the PBA.

Who is the offended party? Solicitor General Jose Anselmo Cadiz claimed that the offended party is the Armed Forces of the Philippines (AFP) of which he is the counsel. The SBN rebuffed him, ruling that since plunder “is a crime against the nation or the State, then the offended party… is the State and not the AFP… the special prosecutor (of the OMB) is the one representing the State in this case.”

I agree with the SBN that the offended party is the State, not the AFP. But I disagree that the OMB represents the State, as the offended party. The name of the State is the Republic of the Philippines. The representative of the Republic is the President of the Philippines, not the OMB.

To repeat, the Rules of Court requires the consent of two entities: the prosecutor and the offended party. The prosecutor’s consent is necessary to safeguard the criminal aspect of the case, and the offended party’s consent is needed to look after the civil aspect. The information itself, which was prepared and filed by the OMB in the SBN, states that the crime charged caused damage to “the Filipino People and the Republic of the Philippines.”

The damage to the People is the violation of their criminal laws; the damage to the Republic is the plunder of P303 million. Since the PBA reduced the civil liability to only P135 million, which is less than half of the original claim, the Republic’s consent is essential.

The OMB is an independent constitutional body charged with the investigation and prosecution of crimes committed by public servants. It has no authority to raise funds, or keep them in its custody, much less to appropriate them. It is the Executive Department that is charged with the duty of raising funds, safeguarding them, and proposing to Congress their expenditure. Thus, only the President, or his duly authorized representative, can give consent to the reduction or waiver of funds due the Republic.

Since the consent of the offended party—the State whose name is the Republic of the Philippines—was not obtained, then the plea bargain agreement is void. Neither the OMB nor the SBN can give that consent for the Republic. Only the President (or his representative) can.

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