The Secretive Plea Bargain

The report about the plea bargain struck by General Garcia with his prosecutors must have shaken the officials of the Office of the Ombudsman. When the gag order came from the Sandiganbayan, there was obvious jubilation among the three officials of the Ombudsman’s office who announced the gag in a press conference. Why the jubilation?

The little that has filtered out about the bargain has created shockwaves in the Metro Manila community. The President was furious. The military establishment expressed extreme disappointment. Former Ombudsman Marcelo declared it illegal. If the filtered report was meant to be a trial balloon, the prosecutors should get the message if they are not dense

But what is causing the commotion. From the little that has come out in media there does seem to be legitimate cause for people to be infuriated. Garcia was charged with the crime of plunder for illegally amassing some three hundred million pesos. The minimum amount for the crime of plunder is only fifty million. It seems that Garcia will be allowed to escape the penalty for plunder by pleading guilty, not to plunder, but to indirect bribery in the amount of about one-sixth of the plunder charge against him.

The reasons? We do not yet know. But we should know the details of the arrangement because constitutionally the people have the right to demand information about matters of public concern. This is very much a matter of public concern and the Sandiganbayan should life its gag order.

But what is a plea bargain and is it legal? It is an arrangement entered into between the accused and the prosecution for the accused to plead guilty to a lesser offense than charged. An interesting if humorous early example of plea bargain is the case of Galileo who is reported to have gotten “house arrest from the Inquisition in exchange for his reciting penitential psalms weekly and recanting Copernican heresies.” It must have been some kind of sacramental penance.

Our Rules of Court allow plea bargain. Rule 116 says: “The accused, with the consent of the offended party and the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court.”

Two things are worth noting. First, the consent of the offended party is needed. You might say that the prosecution represents the offended party in a criminal case, that is, the people. But the President, who has constitutional control over the judgment of prosecutors, has already expressed his displeasure. That should be enough to disallow the bargain before it even reaches the Sandiganbayan. Moreover, as I see it, the most closely offended by the crime is the military establishment, and the military is in no mood to give its consent.

Second, approval by the Sandiganbayan is needed. It is not clear what the standards for approval or disapproval are. We will be watching how the Sandiganbayan will exercise its discretion on the subject.

Incidentally, I do not know how often plea bargain is used in Philippine prosecutions. I can see that, at least for small cases, it can be an instrument for declogging our courts. But the Garcia case is no small matter. Although the Rules of Court allow plea bargaining, the Garcia case is certainly the most controversial one to attract public attention. The Sandiganbayan will be on the dock on this subject.

Plea bargain as practiced now seems to have originated from the United States where it is widely used and is widely written about. It is said that roughly 90% of criminal cases in the US end in a bargained conviction for a lower offense. Those who defend the practice say that the “efficiency gained by plea bargains outweighs their evils.”

A leading case on plea bargaining is Bordenkircher v Hayes. Snatches from the decision written by Justice Stewart give us an idea why the US Supreme Court has consistently upheld the constitutionality of plea bargain. "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." “Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.”

Justice Stewart’s opinion, however, was basically a rejection of the defendant’s claim that plea bargaining was characterized by vindictiveness. The claim was that the threat of prosecution for a more serious offense was vindictive and therefore violative of due process. In Garcia’s situation, however, it is hard to see vindictiveness as motivation for the invitation to plead to a lesser offense.

27 December 2010

Amnesty Case & Webb Case

Judge Oscar Pimentel must have agonized about what to do with the coup d’etat case before him in the face of the amnesty proclamation. He must have anticipated pros and cons regarding whatever decision he might make. In the end he chose to defer promulgation of his decision.

My guess is that, if he had decided to promulgate his judgment, it would have been a judgment of guilty. But the judge, it seems, did not want to have a guilty judgment staining the career of the soldiers. Thus he gave them the opportunity to avoid legal stain through the benefit of amnesty.

If, however, his judgment were one of acquittal, it would have been in complete harmony with the amnesty proclamation. No stain would have touched the soldiers.

However, in my view, it would not have been that bad if a judgment of guilty had been promulgated. For one, the offense the soldiers are charged with is not such a disgraceful one. They probably consider it a feather in their cap. And they enjoyed some degree of public support for what they did. For another, the obvious sentiment of President Aquino is to set them free. The fact that he issued an amnesty proclamation is indication that he is ready to grant them pardon. Thus, if conviction had happened, an absolute pardon would have erased their guilt instantaneously and would have given them the right to immediate release just like Webb and company.

The amnesty proclamation, moreover, compared with pardon, has its disadvantages. Under amnesty, the benefit they expect will not come immediately. They will have to apply for amnesty before the amnesty commission and show that they are entitled to the benefits of amnesty. Moreover, -- and this is the more tricky part – current jurisprudence requires that one applying for amnesty should plead guilty to the offense charged. Some prospective amnesty beneficiaries might not want this.

In the interest of clarifying the jurisprudence on amnesty, however, I welcome the current amnesty proclamation. To my mind, the requirement of a plea of guilty is not altogether clear. The requirement was first brought up in a dissenting opinion in the Barrioquinto case arising under the 1946 amnesty proclamation of President Roxas. It became obiter dictum in subsequent amnesty cases. Is it really doctrine now?

The Vizconde Case

Understandbly the supporters of the Vizconde family are unhappy. There are calls for the reinvestigation of the case. What reinvestigation is possible? Specifically, is a reconsideration of the acquittal possible? The Public Attorney’s Office, surprisingly, thinks so. One reason given is the fact that four justices had dissented and that therefore this has created doubt about the correctness of the decision.

What I know about cases like this, however, is the basic constitutional law that an acquittal, right or wrong, may not be reviewed. As one observed, that doctrine is Consti 101. A reconsideration would place the accused in prohibited second jeopardy. "No error, however, flagrant, committed by the court against the state, can be reserved by it for decision by the Supreme Court when the defendant has once been placed in jeopardy and discharged even though the discharge was the result of the error committed." A judgment in a criminal case once final cannot be reopened. A judgment of acquittal is immediately final. “A single prosecution for any offense is all the law allows. It protects an accused from harassment, enables him to treat what had transpired as a closed chapter in his life, either to exult in his freedom or to be resigned to whatever penalty is imposed, and is a bar to unnecessary litigation, in itself time consuming and expense-producing for the state as well."

If at all, an acquittal can only be the subject of a petition for certiorari. But the only ground for such petition would be grave abuse of discretion by a judge amounting to lack or excess of jurisdiction. In such a situation, since the acquittal would be deemed to have been made without jurisdiction, it really would not be an acquittal at all and would not terminate the case. Certiorari would not be a new case but merely a continuation of the unfinished original prosecution.

In the Vizconde case, the PAO officer who is recommending reconsideration would have a hard time showing grave abuse of discretion by seven justices. The concept of grave abuse of discretion means “such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.”

Another call for review, coming from the Department of Justice, as I understand it, is not about reviewing the acquittal of Webb and company. It is about reviewing the murder case for the purpose of finding who should really be prosecuted for the crime if it is not yet barred by prescription. Webb and company can no longer be the object of this investigation even if the Supreme Court decision did not say that they were innocent. The Court had simply said that there was reasonable doubt about their guilt. But innocent or not, they already are protected by the rule on double jeopardy. The DOJ would have to look for other persons to investigate.

20 December 2010

The SC and the Truth Commission

Upon reading the various opinions condemning the Truth Commission, I was reminded of a line from Hamlet: "The lady doth protest too much, methinks."

Collectively, the justices threw everything, including the kitchen sink, against the Executive. One concurring opinion already sees in the title “Truth Commission” a violation of due process because, he says, its version of the truth will mislead the public (as if the public were a gullible lot), will sap the credibility of the Ombudsman (as if it needed more sapping), violate the right of those of who are touched by the telling of truth (as if current investigators do not publish their version of truth), and thus deny them a fair trial. Wow! Amazing how a treasure trove of unconstitutionality can be mined in a mere title!

The ponencia of Justice Mendoza, however, is fairly straightforward and is summarized by Justice Nachura thus:

“1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only because of the transcendental importance of the issues involved, while petitioner Members of the House of Representatives have standing to question the validity of any official action which allegedly infringes on their prerogatives as legislators;

“2. The creation of the Truth Commission by E. O. No. 1 is not a valid exercise of the President’s power to reorganize under the Administrative Code of 1987;

“3. However, the President’s power to create the herein assailed Truth Commission is justified under Section 17,[1] Article VII of the Constitution, albeit what may be created is merely an ad hoc Commission;

“4. The Truth Commission does not supplant the Ombudsman or the Department of Justice (DOJ) nor erode their respective powers; and

“5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection clause enshrined in Section 1, Article III of the Constitution.”

Of course, to taste the full flavor of the opinions, one must read them in full. Nevertheless, within the limited space of a column, let me just discuss two points raised in the Mendoza ponencia.

First, reliance on the “faithful execution of law law clause” found in Article VII, Section 17 is also affirmed by Nachura, Carpio, and implicitly by Carpio-Morales, Sereno, Abad and, I assume, by the three justices who concurred with the ponencia but did not write separate opinions (Velasco, del Castillo and Villarama). Thus I would count nine as possibly defending the position that the President could create the Truth Commission at least by authority of the “faithful execution clause.”

I myself would agree with that position, but on the understanding that the Commission is merely an investigatory and recommendatory body without power to punish for contempt (as also affirmed by Carpio).

Second, violation of the equal protection clause is affirmed by a majority of the justices. I find this difficult to understand in the light of the four jurisprudential requirements needed to make classification reasonable. These are well known to law students.

First, the EO’s classification is based on substantial distinction. The past administrations (from Aguinaldo to Estrada) are distinct either because they have already been investigated by their successors or because including all past administrations would mean including offenses whose prescriptive periods have already lapsed.

Second, the classification is germane to the purpose of the law. The purpose of the EO is to achieve success in identifying corruption and this would be severely impeded if the scope of the investigation must cover 111 years of presidential history.

Third, the classification applies not only to present condition but also to future conditions. Section 17 of the EO can include the future. The “under-inclusiveness of remedial measures is not unconstitutional, especially when the purpose can be attained through inclusive future legislation or regulation.”

Fourth, the classification includes everyone belonging to the class. The classification of the previous administration as a class by itself is a recognition of the “the reality that unlike with administrations long gone, the current administration will most likely bear the immediate consequence of the policies of the previous administration” and of the “reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more easily established in the regime that immediately precede the current administration.”

For the validity of classification all that is required is reasonableness.

Finally, the concluding words of Justice Carpio are worth noting: “Neither the Constitution nor any existing law prevents the incumbent President from redeeming his campaign pledge to the Filipino people. In fact, the incumbent President’s campaign pledge is merely a reiteration of the basic State policy, enshrined in Section 27, Article II of the Constitution, that: ‘The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.’”

13 December 2010

Church and State

I am glad that one of my readers has expressed his unhappiness about my views on church and state. He has given me a chance to make him happy, or perhaps more unhappy.

In a piece which he entitled “Noted constitutionalist Bernas misses again” he particularly laments that I seem to have failed or chosen not to see the fundamental principle that the “separation of church and state shall be inviolable.” He seems to forget that, although this is a principle that came to us with the American regime, the sentence found in Article II, Section 6 of the 1987 Constitution, only appeared for the first time in the 1973 Constitution. And I have always told my students that this sentence in Article II is a superfluity. It adds nothing to what has been elaborated in other parts of the Constitution even before 1973 and in a long line of Philippine and American jurisprudence.

The phrase, incidentally, appears under the Declaration of Principles. They are just that, principles which guide government in the conduct of affairs. The principle of separation of church and state commands government about what it may not do about churches. It is not a guide for the conduct of private individuals nor of the Church. The rule of conduct for the Church is in Canon Law.

Moreover, I usually avoid the use of the phrase “separation of church and state” and its cousin “wall of separation” because they can lead to exaggerated notions suggesting that there can be no contact between church and state. How can there be no contact when they live in the same world? Hence, I prefer to use the original language of the Constitution which speaks of “non-establishment of religion.”

But even “non-establishment” has been read in varying ways by jurisprudence. At one end, relevant to American federalism but not to the Philippine unitary system, is the view that the clause merely insulates state policy on religion from federal interference. At the other end are formulations of how the government may legislate on matters that touch on religion. One reading says that the non-establishment clause prohibits the state from passing "laws which aid one religion, aid all religions, or prefer one religion over another." Other jurisprudential readings nuance this more carefully to say that (1) the non-establishment clause prohibits only direct support of institutional religion but not benefits incidentally accruing to churches and church agencies through support given to members; (2) both direct and indirect aid to religion are prohibited especially if the support involves preference of one religion over another or preference of religion over irreligion (3) state aid to the secular goals of religious institutions may be given provided it will not involve “excessive entanglement with religion.” In other words, there is no simplistic reading of the non-establishment clause or separation of church and state.

My reader also laments that I support the “amazing unconstitutional act, that a prelate, say, a cardinal, could run for public office.” What is amazing, however, is the contrary view. The Constitution itself says: “No religious test shall be required for the exercise of civil or political rights.” Prohibiting a priest or cardinal from running for office means imposing on them a religious test for the exercise of their political rights. That is a constitutional no-no.

My reader also teaches that there is violation of separation of church and state when “public officials would not decline a Red Mass, or the bishops are unable to restrain themselves from offering it to the politicians.” He would require our public officials to be irreligious and he would curtail the right of bishops to promote religious values.

This brings me to a basic principle that must not be forgotten when reading the Constitution. It is this, that, for the state, the Constitution sets up the structures and powers of government and enumerates some non-inherent powers; but for the individual person it is a guarantee of fundamental rights. The Bill of Rights, where the non-establishment provision is found, is a limitation on the powers of the state but a guarantee of the rights of individuals. In the matter of religion, this is obvious. The Constitution commands the state not to establish any religion (no law shall be passed respecting an establishment of religion) but it guarantees the right of the individual to the free exercise of religious profession and worship. One of the purposes, in fact, of the invention of “non-establishment” is the protection of individuals from oppressive state religions. Non-establishment, in other words, is in service of free exercise. Hence, when there is conflict between the two, jurisprudence favors free exercise. For instance, our Supreme Court has spoken of “benevolent neutrality” in approaching religious conflicts.

My reader also cites the example of revered elders in Constitutional Law – Recto, Tañada, Carreon, Cruz. There are others too. I am certain that they are for non-establishment and against religious abuses; but I am equally certain that they will defend the free exercise of religion.

6 December 2010