20 December 2010 His Excellency BENIGNO C. AQUINO IIL Malacaiian Palace Manila Dear Mr. President: “.. Grievances about graft and corruption in the military, such as the RSBS, the Modernization Fund, and the procurement system provide a fertile ground for the recruitment of officers and men for military intervention and even the overthrow of Government. The expression of grievances resonates to the wider polity who share these sentiments, even as they do not approve of the means used and the solution proffered by the Magdalo _ group.” (Feliciano Commission Report on the Oakwood ‘Mutiny of July 2003: emphasis supplied) ‘The quoted findings on the main causes of military unrest, grievances, and adventurism were written seven (7) years ago, in the nation’s effort to make sense of its then turbulent present, and divine what should now be its hopeful future. Among the recommendations made in this regard was for the government to effectively address said legitimate grievances. Said the Feliciano Commission's Report, “the Government and the AFP need to address the legitimate grievances of the military against corrupt officers, officials, bureaucrats, and practices.” ‘The prosecution and arrest of former Maj. Gen. Carlos F, Garcia in 2004 was then a hopeful step in the right direction. After building a solid case supported by solid evidence, Forfeiture and Plunder cases were later filed by the Office of the Ombudsman and the Office of the Special Prosecutor. In the Forfeiture case, Garcia was declared in default by the Sandiganbayan, which declaration was affirmed with finality by the Supreme: Court. The net effect was to deprive Garcia of any right to present evidence against the forfeiture of said ill-gotten wealth, making its recovery a given result. To our recollection, the prosecution has already completed the presentation of itsevidence, and the Forfeiture case is already submitted for resolution. Thus, since the Sandiganbayan would only consider the evidence presented by the prosecution, it is absolutely certain that the Government would win this case. ‘As for the case of Plunder, the same involved the amassing of wealth worth more than P300 Million. Early on, based on our recollection, after his arrest, Garcia moved to be granted bail. However, the Sandiganbayan denied his motion and ruled that the prosecution has shown that there is strong evidence of his guilt. Thus, trial proceeded with Garcia not being set at temporary liberty. In the end, the prosecution successfully supported its charge and presented evidence. After the proszcution completed the presentation of its evidence and rested its case, Gareia filed a Demurrer to Evidence in an attempt to have the case dismissed, arguing that the prosecution’s evidence was insufficient to support a guilty verdict. The Sandiganbayan, however, denied his Demurrer to Evidence, ruling that the prosecution has presented evidence establishing Garcia’s guilt beyond reasonable doubt, and that on the basis of such evidence Garcia may be convicted, and the identified and levied assets forfeited in favor of the government, unless Garcia would be able to rebut the prosecution’s evidence during his turn to present evidence in his defense. The fact is, howaver, based on the submissions of Garcia, and the defenses he pleaded at pre-trial, there was no chance that he would be able to disprove the facts established by the prosecution, especially because his wife admitted on record that the funds they held came from bribes, and funds in connection with military contracts. Said admissions by his wife, who is his co- conspirator, are binding on Garcia. What is more, Garcia failed to identify or explain any possible source of legitimate income to justify the massive wealth he has accumulated. Indeed, there is none. Accordingly, Garcia’s conviction for Plunder is a foregone conclusion. Thus, the events of the receat days on Garcia being allowed to pload guilty to a lesser offense and being sot free come as a sordid shocker that is nothing short of a betrayal of the public trust, and a reversal of whatever gains the nation may have had in its fight against graft and corruption. Unfortunately, we seem to have frgotten even the lessons of very recent history. The plea bargain entered into by the Office of the Ombudsman through the Office of the Special Prosecutor with Garcia is illegal and in contravention of law and the Rules of Court. Section 2, Rule 116 of the Rules of Court provides:“Sec. 2. Plea of guilty to a lesser offense — At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty toa lesser offense which is nevessarily 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.” (emphasis supplied) Clearly, ordinarily, plea bargaining must be done at pre-trial. ‘Thereafter, it can only be allowed at the discretion of the court before trial. ‘Thus, the plea bargain entered into with Garcia in this case violates the clear provisions of the Rules of Court. Waat is more, it is submitted that the same was done without the consent of the offended party — the Armed Forces of the Philippines (of which Your Excellency is now the Commander-in-Chief), whose funds was reportedly plundered by Garcia. Thus, Your Excellency’s consent should have been secured by the Office of the Ombudsman before entering into the subject plea bargaining agreement. On a larger context, the offended party is the People, especially in the light of Your Excellency’s cornerstone election promise against corruption and the “daang matuwid”. Reportedly, the plea bargain is being justified on the basis of the Supreme Conrt’s decision in Peaple vs. Mamarion, GR. No. 137554 (01 October 2003). However, it must be stressed that the reliance on said case of Mamarion is misplaced and wholly erroneous. In the first place, at the time the plea bargain was entered into in 1997 in the Mamarion case, Section 2, Rule 116 of the Rules of Court contained a different provision: “Sec. 2. Plea of guilty to a lesser offense. — 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 whother or not it is necessarily included in the crime charges, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment of the complaint or information is necessary.” It must be noted, however, that said section did not provide for the limitations and timing conditions of the plea bargain unlike in the present wordings of Section 2, Rule 116 of the Rules of Court which became effective in December 2001. It must be stressed that while the Supreme Court decided the Mamarion case in 2003, said case was decided considering the above- cited old provision of Section 2, Rule 116 of the Rules of Court. Thus, Mamarion may not be cited as basis to justify or legitimize the illegal and corrupt plea bargain with Garcia urder the present rules.What is more, under Mamarion, citing the case of People vs. Villarama, Jr., 210 SCRA 246 (1992) and People vs. Kayanan, 96 SCRA 373 (1978), if plea bargaining would at all be allowed oven after the prosecution has presented evidence, the law allowed only one instance: “In People vs. Villarama, Jr., a 1992 case, the trial court allowed the accused therein to change his plea even after the prosecution had rested its case, applying the herein above- quoted Section 2, Rule 116 of the Rules of Court. The Court elucidated, thus: .. Ordinarily, plea-bazgaining is made during the pre-trial stage of the criminal procoodings. However, the law still permits the accused sufficient opportunity to change his plea thereafter. Thus, Rule 116 of the Rules of Court, Section 2 thereof, provides: xxx In the case at bar, the private respondent (accused) moved to plead guilty to a lesser offense after the prosecution had already rested its case. In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor with a yardstick within which their discretion may be properly exercised. Thus, in People vs. Kayanan, we held that the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged.” Gale's testimony was crucial to the prosecution as there was no other direct evidence linking appellants to the commission of the crime. Hence, the trial court did not err in allowing Gale to plead guilty to a lesser offense.” (emphasis and underscoring supplied) People vs. Villarama, Jr., supra, farther explains the rationale for said exception citing Justice Antonio Barredo in People vs. Parohinog, 96 SCRA 373 (1980):“... In his concurring cpinion in People v. Parohinog (G.R. No. L-47462, February 28, 1980, 96 SCRA 373, 377), then Justice Antonio Barredo explained clearly and tersely the rationale of the law: . . . (After the prosecution had already rested, the only basis on which the fiscal and the court could rightfully act in allowing the appellant to charge his former plea of not guilty to murder to guilty to the lesser crime of homicide could be nothing more nothing less than the evidence already in the record. The reason for this being that Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser offense is allowed was not and could not have been intended as a procedure for compromise, much less bargaining. (emphasis supplied) Clearly, under the foregoing cases cited in Mamarion, a plea to a lesser offense done after the prosecution has rested its case (assuming for the sake of argument that it is possible under the current wordings of the rules) is allowable “only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged”, as indeed, the Supreme Court even noted in Mamarion that “Gale's testimony was crucial to the prosecution as there was no other direct evidence linking appellants to the commission. of the crime”. (Gale was the one who entered into a plea bargaining agreement in exchange for testifying against the principal accused.) Applying the “yardstick” cited in the above Supreme Court cases, the plea to a lesser offense by Garcia cannot be justified since the evidence before ‘the Sandiganbayan and the prosecution was sufficient to convict Garcia for Plunder: (a) the Sandiganbayan already held at the outset that the prosecution has presented a strong evidence of guilt in denying Garcia’s motion to be granted bail; and (b) in denying Garcia’s Demurrer to Evidence, the Sandiganbayan also held that the evidence presented by the prosecution is sufficient to conviet him beyond reasonable doubt. There is, thus, no cogent reason for the prosecution to agree to a lesser provable crime, much less sacrifice the sure recovery of ill-gotten wealth in the Forfeiture and Plunder cases.Further, unlike in the Mamarion case wherein Gale (the accused who entered into a plea bargaining agreement) was not the principal accused, Garcia is the principal offender in tais case. Your Excellency must understand, however, that more than a case of compliance with legal requirements, this cabal to favor Garcia and prejudice the People illustrates yet again deliberate efforts of some quartors to thwart and sabotage the government’s efforts to stem the tide of corruption. With due respect, this spits on the face of everything that Your Excellency holds dear. Bakit po ba ngayon lang natin nalalaman ang Iahat ng ito? Ang isang kasong ganito kalaki at kahalaga ay karaniwan nang napapabalita, May dang mamamahayag na nagtangkang usisain at silipin ang umuugong na sabwatan may ilang buwan na rin ang nakakaraan, ngunit ang kasunduan umano ay ipinagkait at itinago ng Sandiganbayan at ng Office of the Ombudsman. Hindi po ba ang nililitis na kaso at lahat ng inihahahin dito ay ‘public record” na maaring usisain ng mamamayan? Tiyak po tayo na ang ganitong kasunduan na patagong niluto sa madidilim na sulok ng ating pamahalaan, palihim na inilapat at ipinatupad, at nadadaan lamang sa mga bulong-bulongan, ay hindi naaayon sa daang matuwid. We believe, Your Rxcellency, that the carrmpt and illegal plea hargain with Garcia may still be unwound and nullified; further, those responsible should be dutifully prosecuted. The plea bargain is riddled with fatal flaws as discussed above. Moreover, the plea agreement is grossly disadvantageous to the government and entered with manifest partiality which would cause undue injury to the Government. In this regard, we believe that the Solicitor General, in his capacity as ‘Tribune of the People, may be put to task to lead the charge against this unholy cabal. We believe that given this administration's policy of transparency and commitment to good governance, the Office of the Ombudsman has abdicated its authority in this case to represent the People of the Philippines. In fact, what the Special Prosecutor did (apparently with the approval of the Ombudsman), who incidentally is a literal midnight appointee of your predecessor, was to betray and exactly go against the announced platform and policies of this administration. The Office of the Solicitor General (OSG) is headed by the Solicitor General, “who is the principal law officer and legal defender of the Government”. (Sec. 34, EO No. 292) Section 35 of EO No. 292 provides:“Soc. 85. Powers and Functions. — The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. When authorized by the President or head of the office concerned, it shall also represent government owned or contrclled corporations. The Office of the Solicitor General shall constitute the law offico of the Government, and, as such, shall discharge duties requiring the services of a lawyer...” Unknown to many, the OSG is counsel not only for the Executive Department, but also for the independent constitutional commissions and bodies like the Commission on Audit, the Civil Service Commission and the COMELEC. More importantly, in the discharge of its duties, it is of no moment that the OSG would take a position adverse to another agency of government since it is within its mandate to protect more than an agency, or instrumentality of government, but the People. In fact, during the undersigned’s stint as Solicitor General, undersigned took a position contrary to the COMELEG, and was sustained by the Supreme Court. In this case, the COMELEG, voting 4-3, approved tae bid and contract in favor of Photokina Marketing Corporation. The Solicitor General, despite this approval, was of the opinion that the Minority Commissioners ware correct and that the subject contract was null and void. The dispute over their contract reached the Supreme Court wherein Photokina Marketing Corporation, argued, inter alia, that the Solicitor General “has no standing to file the petition (questioning the validity of the contract) since its legal position is contrary to COMELEC’s position, i.e, its approval of the subject contract was legal. According to the Supreme Court: “x xx The OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest of the government is upheld. 25 This is regardless of the fact that what it perceived as the ‘best interest of the government’ runs counter to its client agency's position. 26 Endowed with a broad perspective that spans the legal interest of virtually the entire government officialdom, the OSG may transcend the parochial concerns of a particular client agency and instead, promote and protect the public weal. Our ruling in Orbos vs. Civil Service Commission, is relevant, thus:‘x x x Il is incumbent upon him (Solicitor General) to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a client's position. x xx ‘In the present case, it appears that after the Solicitor General studied the issues he found merit in the cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to represent the petitioner as he did by filing this petition. He cannot be disqualified from appearing for the petitioner even if in. so doing his representation runs against the interests of the CSC. “This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients like the CSC, the National Labor Relations Commission, among others, and even the People of the Philippines x x x’ Emphasis supplied) Hence, while petitioners’ stand is contrary to that of the majority of the Commissioners, still, the OSG may represent the COMELEC as long as in its assessment, such would be for the best interest of the government. For, indeed, in the final analysis, the client of the OSG is not the agency but no less than the Republic of the Philippines in whom the plenum of sovereignty resides.’ [Commission on Elections vs. Quijano- Padilla, 389 SCRA 353, 361-362] ‘Thus, the OSG’s client, in the end, is the People of the Republic of the Philippines (the same as Your Excollency’s constituents), who, in this case, has been wronged and betrayed in the plea bargain with Garcia by the Office of the Ombudsman and those others involved: “The Court further pointed out that it is not entirely impossible that the Office of the Solicitor General may take a position adverse to his clients like the Civil Service Commission and the National Labor Relations Commission, among others, and even the People of the Philippines. In_such instances, we i Solicitor Gener: sim) decline to handle the case or arbitrarily withdraw therefrom. ‘the Court enjoins him to nevertheless manifest his opinion andrecommendations to the Court which is an invaluable aid in the disposition of the case. XxX Petitioner's claim that the Solicitor General could not withdraw his appearance as lawyer of PCGG inasmuch as he had neither the consent of his client nor the authority from the court, applying the pertinent provision of the Rules of Court, is not well-taken. Here is no ordinary lawyer-client relationship. Let it be remembered that the client is no less than the Republic of the Philippines in whom the plenum of sovereignty resides. Whether regarded as an abstract entity or an ideal person, it is to state the obvious that it can only act through the instrumentality of the government which, according to the Administrative Code of 1987, refers to the ‘corporate governmental entity through which the functions of government are exercised throughout the Philippines . . ” And the OSG is, by law, constituted the law office of the Government whose specific powers and functions include that of representing the Republic and/or the people before any court in any action which affects the welfare of the people as the ends of justice may require. Indeed, in the final analysis, it is the Filipino people as a collectivity that constitutes the Republic of the Philippines. Thus, the distinguished client of the OSG is the people themselves of which the individual lawyers in said office are a part." [Gonzales vs, Chavez, G.R. No. 97351 (04 February 1992): emphasis and underscoring supplied] Indeed, the function of the OSG has been further described in Gonzales vs. Chavez, supra, as one imbued with the performance of sovereign functions, in that the Solicitor General may be called upon to prevent any act which may tend to obstruct, pervert or impede and degrade the administration of justice - as in what the Office of the Ombudsman did with Garcia: “Being a public officer, the Solicitor General is ‘invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public’ Another role of the Solicitor General is an officer of the Court, in which case he is called upon ‘to share in the task and responsibility of dispensing justice and resolving disputes; therefore, he maybe enjoined in the same manner that a special prosecutor was sought enjoined by this Court from committing any act which may tend to ‘obstruct, pervert or impede and degrade the administration of justice.” (emphasis supplied) We believe, therefore, that the situation is not totally lost. However, a swift and determined concrete action is expected from a leadership that has declared itself to be the sworn enemy of midnight deals and crooked means, of grafters and corrupt officers, and of abuses and injustice. Incidentally, we would like to express our gratitude to Your Excellency for you have publicly taken cognizance of this matter and vowed to look into it. Further, in this connection, we offer to assist the Office of the President and the OSG with respect to the filing with the Sandiganbayan of a motion for intervention with motion to annul plea bargaining agreement, such as doing research and writing its initial draft and subsequent pleadings. ‘Thank you and may you find the foregoing in order. With our hopes, weentO pa SIMEON V. MARCELO Former Tanodbayan (09175611397) i | DENNIS ul LA-IGNACIO Former Speial Prosecutor (09228691813) 10