Faustian plea bargain

THE PLEA bargain agreement with Carlos F. Garcia, former comptroller of the Armed Forces, is the ultimate perversion of the constitutional clause which states rather grandly: “Public office is a public trust. Public officers [shall] be accountable to the people, serve them with utmost integrity, and lead modest lives.”

The fact that the Office of the Ombudsman pursued this matter even after the resignation of former Ombudsman Merceditas Gutierrez also shows that the problem goes beyond personalities. It is much more deeply ingrained in institutions. Justice officers read their duties rather narrowly. They prefer to take the path of least resistance legally while ignoring the utmost public condemnation morally.

On Monday this week, the anti-graft court, the Sandiganbayan, approved the plea bargain agreement that would downgrade Garcia’s crime from plunder to indirect bribery and from money laundering to “facilitating money laundering.” He would surrender to the government less than one-half of the P300 million in property and cash that had been stolen—and that half is impressive enough: a total of P135 million, including some P76 million in cash and a condominium in New York, and property variously registered in the name of the general or his wife or their three sons (while the general declares, in the plea bargain offer, that his wife and sons “have absolutely nothing to do with the cases he is now facing in court”). The Garcias get to keep the larger half of the loot—and worse, the general seems poised to evade further jail time if the court sentences him to time served.

What bothers me about the whole affair is the misguided understanding of the rule of law and how our law enforcement officers—from the policemen, to the Ombudsman, and finally the Sandiganbayan—interpret their mandate. Forgive the academic jargon, but the issue here is the relation between rules and norms. The fundamental norm is laid down by the Constitution: “Public office is a public trust.” On that moral principle, we are all partisan. We ought not pretend to be neutral. We have a duty actively to carry it out. A Pontius Pilate washing of hands—of passing the buck, of seeking refuge in technicalities—has no place when we have codified a moral statement in the Constitution.

If the Sandiganbayan wanted to throw out the plea bargain agreement and uphold that norm, it had a very good solid legal ground, namely, the plea bargain was offered too late. The rule says that the plea bargain may be offered either at the arraignment (the familiar scene in courtroom theater where the accused pleads “Innocent” or “Guilty”), or at pre-trial (“after arraignment but before trial”).

Instead, the Sandiganbayan looked for an exception and found it in what former Ombudsman Simeon Marcelo considers (and I wholly agree with him) a flawed reading of two Supreme Court decisions. In one decision, the SC allowed a belated plea bargain but only because the old rule prevailing then did not prescribe time limitations. In the second, the SC allowed the plea bargain for one of the lesser accused, not the principal offender like Garcia, and in exchange for vital testimony, unlike with Garcia who promised only cash and property but no truth in return for freedom. Yet the Sandiganbayan preferred to go for the exception rather than the rule.

The Sandiganbayan had another ground that is found in the text of the law itself: “[T]he accused, with the consent of the offended party and prosecutor, may be allowed … to plead guilty to a lesser offense.” Now look at the title of the case: “People of the Philippines (Plaintiff) versus Maj. Gen. Carlos F. Garcia, et al. (Accused).” Maybe the Ombudsman and the Sandiganbayan should tell us: Did the People of the Philippines really consent to the plea bargain? Constructively, who should speak the voice of the People in this case? The President as chief executive? Or maybe the commander-in-chief perhaps, since according to Garcia’s wife their wealth can be explained in terms of her husband’s comptrollership over the military budget? Either way, President Aquino has disapproved of this plea bargain loud and clear. Independent of that, the Filipino’s public outrage has been widely expressed in the media, and the Ombudsman’s acceptance of the plea bargain smacks of a breach of the attorney-client trust.

For the Ombudsman, that action can be understood either as the persistence of Merceditas Gutierrez’s influence in that office or, as I further suggest here, a deeper misunderstanding of what it means to be a fair and professional prosecutor.

But why the Sandiganbayan acted that way, for that, we must ask: Why declare the plunder case “questionable and shaky” now, and not after trial on the merits? Because at this stage, the court can still wash its hands and blame the parties who both consented to the plea bargain, and especially the Ombudsman whose job it was to have objected in the first place. For the Sandiganbayan as an institution, that would be perfectly understandable.

But there remains one mystery. Cutting short the Garcia trial will stall further truth-seeking into dirt and sleaze in the Armed Forces. Surely an anti-graft court should be interested in exposing the tentacles of corruption. That the Sandiganbayan would knowingly go along means it sees its job in this case as merely to judge Garcia, rather than to find out how he was able to amass his stash and with whom he had conspired all these years. In effect, our justice institutions focused on a punitive rather than preventive approach to corruption, and, strangely, ended up leaving the guilty unpunished.

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