Guilty but not jailed

A former top official, who had the responsibility of investigating and prosecuting public officers for graft, was judged guilty of violating a law he was duty-bound to obey and enforce. As a consequence, Margarito Gervacio Jr., former overall deputy ombudsman from 1999 to 2006, was sentenced to imprisonment of four months and one day. His culpability is beyond question because he pleaded guilty to the charge. However, he may not go to jail at all. Why?

First, a little background. The Constitution created the independent Office of the Ombudsman (OOO), composed of the Ombudsman to be known as the Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas, and Mindanao… [who], as the protectors of the people, investigate and prosecute ranking public officials. In short, the overall deputy is the second highest official of the land charged with the duty of prosecuting the corrupt.

In 2005, Antonio Baltazar filed a complaint in the OOO alleging that in 1996, Gervacio bought a house and lot worth P3 million, including the added improvements. However, the property was not reflected on his statement of assets, liabilities and net worth (SALN) for 2003. The Anti-Graft Law requires all public officers to file annually their “true, detailed and sworn” SALN.

On Jan. 2, 2012, the OOO filed a complaint for perjury against him in the Sandiganbayan (SBN). Simply stated, perjury is “the act of making untruthful statements under oath.”

At his arraignment, Gervacio entered a plea of guilty “deliberately and with full knowledge of its effects.” Thus, the SBN Second Division (composed of Justices Teresita V. Diaz-Baldos, chair, Napoleon E. Inoturan and Maria Cristina J. Cornejo) applied the “mitigating circumstance of plea of guilty” and sentenced him to a “straight penalty of four months and one day” in jail.

Probation explained. Moreover, the SBN allowed him to file a “corresponding motion” to avail himself of “the provisions of the Probation Law.” This law (Presidential Decree No. 968 as amended by PD 1990, both issued by President Ferdinand Marcos) authorizes courts to grant, subject to certain conditions, probation to those convicted by final judgment and sentenced to imprisonment of not more than six years.

Once granted, probation frees a convict without need to serve the imposed penalty, subject to conditions determined by the court. The usual conditions include undergoing “medical, psychological or psychiatric examination,” refraining from “visiting houses of ill-repute,” and abstaining “from drinking intoxicating liquor.”

Probation aims to “provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison term.” The Supreme Court has ruled that “probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which may be granted to a seemingly deserving defendant who thereby escapes the extreme

rigors of the penalty imposed by law…”

Under the Probation Law, “the period of probation of a defendant sentenced to imprisonment of not more than one year shall not exceed two years, and in all other cases, said period shall not exceed six years.” After such period, the court may “discharge” the probationer, and thereby “restore to him all civil rights lost or suspended as a result of his conviction,” including (according to Moreno vs Comelec, Aug. 10, 2006) “the right to run for public office.”

Probation of Napoles’ relatives. This decision reminds me of another SBN decision in People vs Espinosa acquitting Janet Lim Napoles and some others in the anomalous purchase of Kevlar helmets for the Armed Forces of the Philippines but convicting her mother and brother who were subsequently granted probation.

In its original decision issued on Oct. 28, 2010, the SBN Fourth Division (then composed of Justices Gregory S. Ong, chair, Jose R. Hernandez, ponente, and Maria Cristina J. Cornejo) sentenced the convicted accused to a minimum imprisonment of four years and two months to a maximum of eight years and one day, thereby disqualifying them from probation which applies only to those sentenced to a maximum of six years.

However, on Sept. 20, 2011, the SBN credited them with two mitigating circumstances and reduced the penalty to a minimum of two years, four months and one day to a maximum of four years, two months and one day, thereby qualifying them for probation.

Incidentally, Ong was recently ousted from his post for “gross misconduct, dishonesty, and impropriety” partly in connection with this case.

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Inhibition rejected. I am glad the SBN en banc rejected unanimously the request of Justice Roland B. Jurado (later joined by the two other members of his division) to inhibit, for personal reasons, from the pork barrel case of Sen. Jinggoy Estrada. Inhibition cannot be invoked without a good reason. Otherwise, judges can escape their responsibilities at their whim.

By the nature of their jobs, magistrates must be impervious to what I call the “plague of ships”: kinship, relationship, friendship and fellowship. If they are not, they must resign from their posts, not just inhibit.

Upon learning of this request, Chief Justice Maria Lourdes P.A. Sereno was aghast. After all, the SBN justices declined her proposal to create a special division to try all the pork barrel cases, alleging that all the divisions (except Ong’s) were ready and able to handle the said cases.

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