By Edu Punay (The Philippine Star) Updated December 21, 2010
MANILA, Philippines - The government is mulling legal action against members of the prosecution panel from the Office of the Ombudsman after they agreed to an “illegal and unconscionable” plea bargaining deal that allowed former military comptroller Carlos Garcia – who was facing plunder charges – to post bail for his liberty.
“This is one clear illustration of how anti-corruption efforts of a determined Aquino administration can get easily frustrated or derailed by the half-hearted and less than forthright actions of the very institution constitutionally tasked to put grafters to the bar of justice,” Justice Secretary Leila de Lima said.
At Malacañang, President Aquino said his legal team is planning its next move on the matter.
De Lima said the prosecutors’ move was “manifestly disadvantageous to the government” and a “deplorable abdication of their duty to prosecute criminals, especially those who stole from the nation’s coffers, to the fullest extent of the law.”
De Lima said the panel as well as Special Prosecutor Wendell Barreras-Sulit herself “should be held accountable for administrative or criminal offenses they may have committed in entering into the deal.”
If needed, she said she would assign a team of state prosecutors from her department to assist the Office of the President in investigating Sulit and the panel “in the preparation of the formal charges that may be filed against them.”
Replying to reporters’ question, De Lima said the special prosecutors of the Ombudsman should be cited for “violation of the Rules of Court on pleading to a lesser offense and betrayal of public trust.”
She explained that Rule 116, Section 2 of the Rules of Court provides that the accused may only plea to a lesser offense before arraignment or after arraignment or before the start of trial.
Garcia made his plea for the lesser offense of indirect bribery from plunder long after his trial had started.
“This only shows that the deal between the Ombudsman and General Garcia is tainted with illegality from the start, and should be nullified for having been made in clear violation of the pertinent provision of Rules of Court on plea bargaining,” she pointed out.
De Lima said the deal “bears signs of collusion between the prosecutors and the accused.”
De Lima said Ombudsman Merceditas Gutierrez could also have a hand in the agreement since the plea bargaining deal could not have been finalized without her approval. The DOJ chief said this could be grounds for Gutierrez’s impeachment.
Asked if the Palace’s possible legal actions would not violate the Ombudsman’s constitutionally enshrined independence from the executive department, she explained that the President wields disciplinary power over deputies of the Ombudsman under section 8 of the Ombudsman Act of 1989.
“Why did they again surprise us with this dubious move? I just had to say my piece,” De Lima said, referring to the prosecutors’ announcement of a plea bargain.
Garcia walked out of detention last Saturday after posting P60,000 bail.
“We want to know the process that was undertaken to see what steps can be taken. That’s what our legal counsels are reviewing,” Aquino said.
The President said he would like to stop the plea bargaining. “Yes, depending on what our lawyers are able to find out,” Aquino said.
“That is what we want to correct because if we will not be able to pin down and get the appropriate punishment for those who committed mistakes, our fight against corruption weakens,” Aquino said.
In the agreement, Garcia – a retired major general – pleaded guilty to direct bribery and to violation of the anti-money laundering law.
Garcia was originally charged with the capital offense of plunder for allegedly acquiring more than P300 million in unexplained wealth when he was Armed Forces comptroller in 2004.
His wife, Clarita, and children Ian Carl, Juan Paulo and Timothy Clark, who all had fled to the United States, were also included in the case.
Garcia is expected to receive his sentence for direct bribery and money laundering before the Sandiganbayan this week.
He will have to present himself before the anti-graft court’s Second Division for the promulgation of decision.
The STAR sources said the government can recover an estimated P135.4 million of Garcia’s and his family’s alleged unexplained wealth, including an expensive condominium unit in New York.
Helpless
But as legal actions are being eyed against the prosecutors in the Garcia case, President Aquino himself cannot do anything to stop the plea bargain deal, according to Dasmariñas City Rep. Elpidio Barzaga Jr.
“If the plea agreement has in fact been sealed by the court, then based on the principle of separation of powers between the executive and the judicial branches of government, Malacañang is not in a position to review or reverse the deal,” he said.
“Plea deals are permitted by court rules. In fact, our jurisprudence on the matter is quite rich,” he said.
The President has ordered government prosecutors to reverse Garcia’s plea agreement. It is not clear to whom the directive was issued since it is the Ombudsman that prosecuted Garcia.
Barzaga also expressed doubts on whether Malacañang could do anything lawful to prevail upon the Office of the Ombudsman to disengage from any plea deals.
He said under the Constitution, the Ombudsman is supposed to be an independent body.
Barzaga said this was not the first time the anti-graft court approved a plea bargain of one accused of plunder.
He cited the Sandiganbayan’s approval of a plea bargain that Charlie “Atong” Ang entered into with the Ombudsman in 2007.
Instead of facing trial for plunder, Ang pleaded guilty to the lesser offense of corruption of public officials in relation to indirect bribery. He admitted pocketing P25 million in tobacco tax collections, and agreed to surrender the money to the government.
Aquino himself was left scratching his head after learning of the plea bargaining deal.
“Again, it’s a question of, ‘wait a minute, I thought the case against him was strong, so why did we agree to plea-bargain?”’ Lacierda told reporters.
The general’s crimes came to light after his two sons were stopped by US customs police trying to smuggle $100,000 into the United States in 2003.
“I understand the plea bargain was P130 million, but the assets that were allegedly ill-gotten were more than that, more than P300 million, so we are at a loss why they did that,” Lacierda said.
“If she (Ombudsman Gutierrez) doesn’t want to explain as she’s not required to do so, she could explain to the public why there was a plea bargaining that was struck,” Lacierda added.
“I’m sure there will be investigative journalists who will get to the bottom of this. These cases have been going on for some years now. They know the assets of the general (so) why was there a plea bargain,” he said.
Asked if the controversy could be another basis to impeach Gutierrez, he said this would be up to members of the House of Representatives.
“I would defer to the House whether this can be included as an amendment or do we have to wait for another year because there’s a one-year bar, so it’s up to the House to decide what they want,” he said.
There is a pending impeachment complaint against Gutierrez.
Defending the deal
While the Ombudsman remains mum on the issue, Barreras-Sulit slammed De Lima for denouncing the plea bargaining deal.
“It is unfortunate that such statements were made without first knowing all the facts of the case and the proceedings that have transpired leading to the said plea bargaining agreement,” she said.
“Secretary De Lima should refrain from issuing any derogatory statements against the Special Prosecutor and the lawyers representing the Office of the Ombudsman in the case against Gen. Carlos F. Garcia, before the Sandiganbayan has released its decision on the plea bargaining agreement submitted to it by the parties for approval,” Barreras-Sulit said.
“The matter as it stands is still sub judice and any comment relative to the merit of the plea bargaining agreement is premature and contemptuous, specially the malicious insinuations that there was collusion between the parties in the case and, worse, other considerations influenced the action of the prosecution,” Barreras-Sulit said.
“At this point, the claim that the anti-corruption effort of the government is undermined by the plea bargaining agreement is merely an unsupported conclusion,” she added.
Meanwhile, the military is distancing itself from Garcia’s case.
“The case of General Garcia is a matter of the civilian court…I am not a court,” Armed Forces of the Philippines (AFP) chief of staff Gen. Ricardo David Jr. said in an ambush interview yesterday.
“When a soldier commits criminal acts, this will be under the jurisdiction of the civilian court,” he added.
“This (case involves) people of the Philippines versus Garcia. It’s no longer AFP versus Garcia,” he added. – With Jess Diaz, Paolo Romero, Aurea Calica, Michael Punongbayan, Delon Porcalla, Alexis Romero
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