No double jeopardy

With Due Respect
Why was Garcia granted bail?
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 00:47:00 02/13/2011

Source:
http://opinion.inquirer.net/inquireropinion/columns/view/20110213-319950/Why-was-Garcia-granted-bail

MANY CONGRESSIONAL probes raise a lot of noise but in the end produce nothing worthwhile. However, the on-going Senate and House hearings on the P303-million plunder charge against former AFP comptroller Carlos F. Garcia have brought up positive and puzzling turns.

Positive result. One positive milestone is the filing of a “Manifestion” by the Office of the Ombudsman, suggested by Sen. Miriam Defensor-Santiago, asking the Sandiganbayan to “hold in abeyance the approval of the plea bargaining agreement…” The Ombudsman can go all the way by withdrawing from the deal altogether, as proposed by the House committee on justice upon motion of Parañaque Rep. Roilo Golez.

This stance shows that, despite their seeming reluctance, the prosecutors are not deaf to the damning exposé of courageous whistle blowers, like former state auditor Heidi Mendoza, retired Lt. Col. George Rabusa and Lt. Col. Antonio Lim. Hopefully, this unified action will lead to a more robust prosecution of the plunder case, and the crafting of remedial legislation.

The amendment of the Anti-Money Laundering Law to give it more teeth in fighting corruption is one worthy remedial legislation. Another is a law that would clearly identify the government officials or offices that must give consent when the Republic is the offended party.

No double jeopardy. Some lawmakers feared that the plea bargain deal might have gifted Garcia with the defense of double jeopardy that would bar his continued prosecution for plunder. I think this fear is groundless. As I opined last Sunday, the plea bargain is invalid because it does not bear the consent of the “offended party,” the Republic of the Philippines. Being invalid, the plea deal cannot be the source of any right, much less the right against double jeopardy. In any event, by the Ombudsman’s withdrawal from the plea bargain, this defense definitely becomes untenable.

There is a more telling argument, and it is viable regardless of whether the plea bargain is valid or not. Under Sec. 7, Rule 117 of the Rules of Court, double jeopardy attaches only when an accused had previously been “(1) convicted or (2) acquitted, or (3) the case against him dismissed or otherwise terminated without his express consent…”

True, Garcia has been arraigned (meaning that he has pleaded “not guilty” to the plunder charge). Clearly, however, he has not been “convicted or acquitted” of plunder. Neither has “the case against him (been) dismissed or otherwise terminated without his express consent.”

To stress: the dismissal or termination of the plunder charge against Garcia was not done “without his express consent.” In fact, he not only expressly consented to it; he actively sought it via his offer, contained in the plea bargain document, to plead guilty to indirect bribery.

Puzzling bail grant. Many readers wonder, “Why was Garcia granted bail?” Frankly, I am puzzled too. But join me as I ponder the facts, as I know them.

Garcia was charged with plunder which, under our Constitution (Sec.13, Art. III), is not bailable “when the evidence of guilt is strong.” The 44-page Sandiganbayan resolution promulgated on January 7, 2010 denied his petition for bail because “the conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character that militates against the grant of bail.” Though Garcia filed a motion for reconsideration, the Sandiganbayan has not reversed or modified this resolution to this day.

Despite this denial, it was explained during the congressional hearings that the bail bond—a measly P60,000, a pittance compared to the P303 million claimed by the Republic as having been plundered by Garcia—was approved as a consequence of the plea bargain. Here, Garcia offered to plead guilty to the crimes of indirect bribery and facilitating money laundering, provided the original charges of plunder and money laundering were withdrawn. Unlike plunder, these crimes of indirect bribery and facilitating money laundering are not capital offenses; hence, the accused was allegedly entitled to bail.

With due respect, this argument is flawed. In a press conference, the Sandiganbayan announced that it had not approved the plea bargain. So, Garcia is still facing the non-bailable plunder charge, not the lesser bailable offenses. Even assuming that the plea bargain has been approved, Garcia is still not entitled to bail because he already pleaded guilty to two crimes. Thus, he should be committed to jail as penalty for the crimes.

Bail is granted only to accord temporary liberty to the accused while he is facing trial. It flows from the constitutional presumption of his innocence. Unless otherwise proven, everyone is presumed innocent. However, Garcia has already pleaded guilty to two crimes. He himself has overturned the presumption of his innocence. He himself voluntarily confessed his guilt. Hence, trial is no longer needed to prove the charges. Why then should he still be entitled to bail?

Non-lawyers, and at times lawyers too, are confused by the maze of legal complexities and technicalities that shroud this case. As a retired jurist, I have always believed that legal complexities and technicalities must ultimately yield to common sense and to the common good.

Constitutional rights are intended to protect the poor and the unlettered from state tyranny. Ironically, the rich and the learned sometimes misuse and abuse these rights to thwart the very goal they were intended to promote: the speedy dispensation of quality justice.

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