A Toxic Deal and A Cyanide Pill

Here's my first problem with the deal that Mr. Carlos Garcia, former General and former comptroller of the Armed Forces of the Philippines (AFP), entered into with Ms. Merceditas Gutierrez, current holder of the position of Ombudsman: it was not necessary. From all indications, the prosecution had the goods and the case was open and shut--at least according to Simeon V. Marcelo, the former Solicitor General, former Ombudsman and the last person to credibly hold those two positions in recent years. So why was the deal made and why was it made so quickly?

Here's my second problem with the deal: it also effectively prevented any inquiry into who else could have been involved in the plunder. I do not believe that anyone seriously thinks that the plunder started and stopped with Mr. Garcia. With 303 Million Pesos amassed by the AFP comptroller, there is serious doubt that this could have gone unnoticed by higher authorities who, being in a position to stop him, failed to do so. So again, why was the deal made and why was it made so quickly?

Here's my third problem with the deal: it is not allowed. Rule 116, section 2 of the Rules on Criminal Procedure provides:

"SEC. 2. Plea of guilty to a lesser offense. -- 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 amendment of the complaint or information is necessary."

The rules do not allow a plea bargain to be made after arraignment and after trial has started. The Justice Secretary is correct on this point.

Here's my fourth problem with the deal: plunder does not have "necessarily included offenses." Plunder is punished by a special statute, Republic Act No. 7080. In Jinggoy Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002, the Supreme Court, speaking through then Associate (later Chief) Justice Puno, characterized plunder as a single crime and deliberately made so by act of Congress, thus:

"A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth. They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan. R.A. No. 7080 or the Anti-Plunder Law was enacted precisely to address this procedural problem." (citations omitted)

What this means is that Congress specifically created plunder to be a single crime consisting of various predicate acts, which may or may not be crimes in themselves.

In People v. Policarpio, G.R. No. 149495, August 21, 2003, the Supreme Court refused to consolidate an indirect bribery (Article 211, RPC) charge and a plunder charge thereby suggesting that bribery (indirect bribery is a lesser species of the offense of direct bribery, the gravamen being mere acceptance of gifts offered to the public officer by reason of his office) is not a necessary element of plunder.

Section 2 of RA 7080, defining plunder, specifies the predicate acts or crimes which may form part of a series or combination of acts to constitute plunder and these acts or crimes are found only in section 1(d), thus:

1) Misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury;

2) Receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3) Illegally or fraudulently conveying or disposing of assets belonging to the national government;

4) Obtaining, receiving, or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

5) Establishing monopolies or other combinations and/or implementing decrees or orders intended to benefit particular persons or special interests; or

6) taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

By the very terms of the law, only these acts may constitute plunder and thus, the theory that the offenses of direct bribery and violation of the AMLA could be considered "included" in plunder is quite irregular. The theory of "necessary inclusion" contemplates that the elements of one crime may form part of the elements of another crime. The most common and easily grasped example would be the killing of a person with criminal intent which is homicide (Article 249, RPC) which is considered "necessarily included" in murder (Article 248, RPC) because murder contemplates the killing of a person with criminal intent but with qualifying circumstances. Thus, a person charged with murder may actually be convicted of homicide because in proving murder, the prosecution would necessarily need to prove homicide--but not the other way around.

Section 4 of RA 7080 (The Plunder Law) does not require each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth to be proven as it is sufficient to establish a pattern of overt or criminal acts indicative of the over-all unlawful scheme or conspiracy to be proven beyond a reasonable doubt. Note the use of "or" between "overt" and "criminal" to indicate that not every act in the pattern needs to be criminal. For Ms. Gutierrez to say that plunder, in Garcia's case, "necessarily includes" direct bribery and violation of a different provision of AMLA is to ignore the very text of the law.

Here's my fifth problem with the deal: why is Garcia not in jail after pleading guilty to two crimes? Garcia walked free on bail after pleading guilty to direct bribery (Article 210, Revised Penal Code) and violation of section 4(b) of the Anti-Money Laundering Act (AMLA). The penalty for direct bribery is 6 years 1 day up to 10 years (prision mayor minimum and medium periods) and a fine not less than three times the value of the bribe, if the act subject of the bribe is a crime, plus the penalty corresponding to the crime agreed upon if the same shall have been committed. Even assuming this is the only crime he pleaded guilty to, he still has a few more years of jail time left. Now, here, as De Quiros would say, is the rub: the plea bargain includes a change in the AMLA provision alleged in the charge sheet from section 4(a) to section 4(b). Cosmetic change? Not quite. The section 4(a) offense carries a penalty of 7-14 years and a fine of up to 3 Million Pesos while the section 4(b) offense carries a penalty of . . . wait for it.... four to seven years and a fine of up to 1.5 Million Pesos. How long has Garcia been in jail? Almost seven years. I think we can all do the math.

Here's my sixth and last problem with the deal: there was an overwhelming absence of fanfare leading to the deal and an overabundance of alacrity in accepting the deal. Quicker than Hubert Webb could adjust to his new surroundings, Garcia was out on bail. Those who facilitated the deal are complaining that the Justice Secretary ought to wait until the Sandiganbayan can approve the deal--yet, Garcia is out of jail even before the deal is approved?

That Garcia stands charged for other related offenses and not only for plunder ought to have put Ms. Gutierrez on notice that this should have been treated with some degree of transparency as well as discretion. That Garcia has in fact been found guilty by a Court Martial for having unexplained wealth ought to have alerted Ms. Gutierrez to proceed with an overabundance of caution. Finally, that the deal itself smells--nay, stinks to high heavens--ought to have alerted Ms. Gutierrez that this might not be a deal she should be making.

More than the actual conviction of Garcia (which ought to have followed as a matter of the regular course of the performance of her duty as Ombudsman), the People of the Philippines ought to have been allowed the satisfaction of finding out the truth. Who orchestrated the plunder? Who else benefitted from it? Who else should be charged, tried, convicted and punished?

This is the essence of the toxic deal that Ms. Gutierrez is foisting on us. It poisons the entire truth-finding process set up by the most transparency-obsessed Constitution we have ever had and is a cyanide pill to finding out who robbed our soldiers blind. It is the best argument for a Truth Commission, not necessarily the one created by Executive Order No. 1, and is the final and most compelling reason to kick Gutierrez out of office.