Invalid plea bargain

THE PLEA bargaining documents, which released retired Maj. Gen. Carlos F. Garcia from detention, are—in my humble view—invalid. These documents are (1) the undated “Plea Bargaining Agreement” (PBA) between the Office of the Ombudsman (OMB) and Garcia, (2) the May 4, 2010 Sandiganbayan (SBN) Resolution ordering Garcia to convey to the Republic the properties listed in the PBA “before the Plea Bargaining Agreement may be approved,” and (3) the December 16, 2010 SBN Resolution granting bail to and releasing Garcia from detention.

Brief background. In 2005, the OMB charged Garcia, his wife Clarita and his three sons (plus three “Does”) with the “non-bailable” crime of “plunder,” and separately, with “money laundering.”

In the PBA, Garcia offered (and the OMB “approved” his offer) to plead guilty “to the lesser offense of indirect bribery” and “to the lesser offense of facilitating money laundering,” provided the more serious charges of plunder and money laundering were withdrawn.

The accused also offered to cede “in favor of the Republic” real and personal properties allegedly worth about P135 million to satisfy the Republic’s original claim in the charge sheet (legally called “Information”) of P303 million that Garcia plundered from the treasury.

The PBA and the SBN Resolutions, by their own terms, are anchored on Sec. 2 of Rule 116 of the Rules of Court: “At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty…”

No consent by the Republic. Clearly, the prosecutors consented to the PBA. But clearly also, the offended party did not consent to it. In fact, the offended party was not mentioned at all in the PBA.

Who is the offended party and why is his/her/its consent required? The offended party is the person or entity directly damaged by the crime. In rape, the offended party is the violated person; in murder, he/she is the dead victim represented by the heirs; and in theft, he/she/it is owner of the stolen thing. In plunder, it is the “Republic,” the entity deprived of funds illegally amassed by the accused.

That the Republic is the offended party is expressly acknowledged in the very Information filed by the prosecutors. The Information states that the accused took “advantage of his official position, thereby enriching himself at the expense and to the damage of the Filipino people and the Republic of the Philippines.” The prosecutors represent the “people.” The President or his authorized representative acts for the “Republic.” His counsel is the Office of the Solicitor General, not the prosecutors.

In the present case, the consent of the offended party is especially essential because the P135 million offered by the accused is much less than the Republic’s claim of P303 million.

No evaluation of evidence by SBN. Note that under Sec. 2 of Rule 116, the plea of guilty to a lesser crime must be made “at arraignment,” or at the latest, “before trial.” However, by their own terms, both the PBA and the May 4, 2010 SBN Resolution expressly admit that the plea bargain was executed “as the prosecution is about to rest its case”; in other words, after the prosecution had already presented its evidence.

The reason why a plea bargain is valid only when executed “before trial” is to save government resources and time in prosecuting cases. The dockets of the prosecutors and the courts are clogged. One way of unclogging them is to plea bargain so they could attend to their other equally important tasks.

Thus, the raison d’etre for plea bargain is lost once the prosecution has finished presenting its evidence. At that point, an offer to plea bargain shows that the accused probably realizes that he/she would be convicted, and thus makes the offer to mitigate his guilt and suffer a lesser penalty.

To justify the delayed PBA, Garcia and the OMB cite jurisprudence that, as an exception, allows a plea bargain even after the prosecution has rested. However, this exception may be availed of, to quote the Supreme Court, “only when the prosecution does not have sufficient evidence to establish the guilt of the crimes charged.”

The Court further taught in People v. Villarama (June 23, 1992) that “(a)bsent any finding on the weight of the evidence in hand, the respondent judge’s acceptance of the (accused’s) change of plea is improper and irregular.” Contrary to this teaching, the May 4, 2010 SBN Resolution had no finding on “the weight of the evidence in hand.”

To stress: the SBN is required to assess the prosecution’s evidence. But it did not. Worse, in its earlier order on January 7, 2010, the SBN denied bail to Garcia because it found the prosecution’s evidence “strong.”

The third document, the December 16, 2010 SBN Resolution granting bail to and releasing Garcia from detention, is likewise irregular because it is based on the invalid May 4, 2010 SBN Resolution.

Finally, only Garcia signed the plea bargain but its benefits were extended to his wife and sons who are in the United States, outside the jurisdiction of our courts.

But all is not lost. The SBN can still correct these lapses and comply with the law by recalling its two Resolutions and ordering the re-confinement of the accused.

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