Thursday, May 12, 2011

Vacuumed justice: Anti-graft court "as accomplice of the corrupt" (?)-

Vacuumed justice -, Philippine News for Filipinos

Vacuumed justice
Philippine Daily Inquirer
First Posted 21:13:00 05/11/2011

THE SANDIGANBAYAN’S May 9 resolution upholding the controversial plea bargain agreement that ex-military comptroller Carlos F. Garcia entered into with then Ombudsman Merceditas Gutierrez is a model of judicial obtuseness. As we can see for ourselves in both the language and the reasoning they used, the judges in the majority were so determined to willfully ignore the greater context and the higher purposes of the law that they ended up burrowing their head in the sand—and looking stupid.

While the resolution is attributed to the anti-graft court’s Second Division, it was in fact a “Special Division of Five” that reached the unfortunate conclusion. Since the three-person Second Division was divided on the issues of the case, the Special Division was created to resolve the matter; it did, by a close 3-2 vote—and by the narrowest of judicial reasons.

Essentially, the resolution in the Garcia case centered on Garcia’s compliance with the terms of the plea bargain agreement. About half of the resolution’s 22 pages was used to list the various properties and bank accounts held by Garcia and members of his family. On Page 17 we read: “It therefore appears from the foregoing that the transfer in the name of the Republic of the Philippines of the assets and properties of accused Maj. Gen. Garcia subject of the Plea Bargaining Agreement, in the total amount of P135,433,387.84, had already been accomplished.” Two pages later, we read: “Inasmuch as the provisions of the Plea Bargaining Agreement and the concerns of this Court about the protection of the Government have been already fully addressed, there is no reason why this Court should withhold approval of the Plea Bargaining Agreement in these cases.”

In fact, there are several reasons why the plea bargain should not have been approved, and why the Sandiganbayan should reconsider its ruling. Compliance with the terms of the agreement cannot be the primary consideration, when the agreement is itself the issue at stake. The protection of the government cannot be understood in the narrowest terms of securing property and other assets; the highest purpose of the anti-graft court is to punish grafters and prevent corruption. How can a plea bargain that allows a military official with hundreds of millions in unexplained wealth to keep half of it serve as both punishment and preventive measure?

Above all, in ignoring the greater context, the anti-graft court succeeded in making itself an accomplice of the corrupt. From the unusual circumstances of the plea bargain (struck only after an uncooperative special prosecutor retired), to the smoking-gun confession of Garcia’s wife Clarita (the subject of apparently intense internal debate in the court), to the revelations disclosed in hearings at the Senate and the House of Representatives (including evidence from the Anti-Money Laundering Council showing that Garcia’s wealth may have reached over P700 million), to the obvious discrepancy between Garcia’s official income and his unexplained riches (the only instance when the law puts the burden of proof on the accused, not the accuser), there was an entire range of old and new evidence that the anti-graft court could have taken notice of, but chose not to see. President Aquino was only right to ask whether the judges lived in a vacuum.

One gauge of the resolution’s strained reasoning is when it reiterated the court’s earlier ruling that there was no need for the AFP to give its consent to the plea bargain, in part because “the blatant allegations in the information fail to indicate that the amount mentioned therein was purportedly taken from the AFP, as in fact none from the said agency was listed therein as a witness.” This is plainly ridiculous; the facts of the case show that much of the money involved came from suppliers’ bribes. But while the funds did not necessarily come from the AFP, the bribes were made precisely because, at the time, Garcia was the AFP’s comptroller. In other words, the abuse happened as a direct result of the office Garcia held; if we want the AFP to reform itself, surely it must have a say on how an officer who abused his office must be meted justice.

A once-secret plea bargain that allows Garcia to pocket over a hundred million pesos is many things, but it isn’t justice.