Garcia PBA: boon or bane?

The Sandiganbayan (SBN) recently reaffirmed the plea bargaining agreement (PBA) entered into by Maj. Gen. Carlos F. Garcia, former comptroller of the Armed Forces of the Philippines, with then Ombudsman Merceditas N. Gutierrez. It held that the PBA is “in accord with law and jurisprudence and is for the best interest of the government” (People vs Garcia, April 10, 2013). However, new Solicitor General Francis Jardeleza and new Ombudsman Conchita Carpio Morales believe otherwise and want it scuttled. Malacañang is determined to fight it, says Communications Secretary Ricky Carandang.

Backgrounder. Recall that on April 6, 2005, Garcia, his wife Clarita and their three sons were charged with the capital offense of plunder of over P303 million. Thereafter, on Dec. 11, 2009, a new charge for violation of the anti-money laundering law was added.

After hearing the parties, the SBN on Jan. 7, 2010, denied bail to Garcia because “the conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character…”

On March 16, 2010, Garcia and the Office of the Special Prosecutor, with the okay of Gutierrez, submitted the PBA for the SBN’s approval. Under the PBA, Garcia (only, not his wife and sons) offered 1) to plead guilty to the “lesser crimes” of indirect bribery and facilitating money laundering, and 2) to surrender “real and personal properties” allegedly worth over P135 million.

In turn, the Ombudsman would withdraw the plunder and anti-money laundering charges against Garcia, his wife and sons who were at large. After Garcia pleaded guilty to the lesser crimes, the SBN granted him bail on Dec. 16, 2010.

Noting the public uproar over the PBA, the Office of the Solicitor General (OSG) now under President Aquino filed on Jan. 5, 2011, a motion for intervention to nullify the PBA and Garcia’s bail. On May 9, 2011, the SBN denied the OSG’s motion and approved the PBA, to which the OSG filed a motion for reconsideration. Ombudsman Morales filed a “position paper” praying also for the PBA’s nullification.

Back to the present. In its recent April 10 resolution, the SBN debunked the motion for reconsideration for “utter paucity of merit.” The 73-page, single-space SBN resolution, written by Justice Samuel R. Martires, carefully reviewed applicable laws and jurisprudence and concluded that only the Ombudsman, to the exclusion of the OSG, can enter into PBAs in the SBN.

It ignored Morales’ position paper because 1) the Ombudsman could no longer “unilaterally” withdraw from a PBA that “has already been approved” by the SBN, and 2) the Ombudsman’s representative during the “clarificatory hearing” refused to convert the Ombudsman’s position paper into a motion. This ruling on Morales is odd. She faithfully complied with the SBN’s earlier written order for her to file a “position paper.” Besides, she clearly prayed for the PBA’s invalidation. That prayer is more emphatic than a motion.

I do not have the space to discuss the other technical aspects of the SBN decision. Let me just focus on the substantive issue of whether the PBA is a boon or a bane. Justice Martires wrote that, unlike armchair critics, the SBN thoroughly reviewed the prosecution’s evidence, and found it weak, or hearsay, or irrelevant to the “predicate crimes” alleged in the plunder charge.

Hence, the accused would have been acquitted and the government would have recovered nothing, had the PBA been nullified.  Au  contraire, under the PBA, justice was served since Garcia was convicted of two lesser crimes and the state recovered P135 million, despite the Ombudsman’s “insufficient evidence.”

Dissenting Justice Oscar C. Herrera Jr. countered that the acquittal threat was “premature, unnecessary and therefore non-binding… The case is not yet submitted for decision and there is no demurrer to evidence to be resolved. As stated in the plea bargaining agreement itself, the prosecution is only ‘about to rest its case.’”

He excoriated the majority for granting Garcia bail, explaining that after pleading guilty to the lesser crimes, he was no longer entitled to the presumption of innocence. “By his own plea, he himself admitted he is guilty of these crimes and should remain under detention to be meted the corresponding penalties.”

Stronger evidence. Legal reasons abound allowing the OSG to intervene and to have the PBA nullified. At the very least, the Constitution and the Ombudsman Act (RA 6770) authorize the Ombudsman to “request any government agency for assistance… in the discharge of [her] responsibilities…” Notably, the Ombudsman’s position paper also prayed that the OSG “be allowed to extend all needful help or aid to this office…”

Under the Rules of Court, a plea of guilty to lesser offenses must carry “the consent of the offended party and the prosecutor.” Clearly, the information in the plunder case separately names the “Filipino people” and the “Republic of the Philippines” as the offended parties.

By asking for the PBA’s nullification, Morales effectively withdrew the earlier consent given by her predecessor. Similarly, the “Republic,” represented by the President via the OSG, also repudiated any presumed consent. Absent the offended parties’ consent, the PBA falls.

Be that as it may, the SBN has given an unignorable even if “premature” threat that Garcia would be acquitted if the PBA is junked. To obviate that risk, the Ombudsman and the OSG should present stronger and more relevant evidence. Otherwise, they may as well swallow the bitter PBA pill to avoid the plague of an acquittal.

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