Garcia can rejoin family in America

Former Armed Forces comptroller General Carlos Garcia can soon rejoin his family in America. This, after the Sandiganbayan upheld Monday his plea bargain from P303-million plunder to lesser offenses. Sentencing would be mere formality. Garcia need not serve any minute longer behind bars. He has been out since December on P30,000 bail for each of two misdemeanors, for the court even then already had accepted the plea deal.

Had he been found guilty of plunder, Garcia would have gone to prison for life. But the Ombudsman let him plead guilty to mere direct bribery and facilitating money laundering. He also has returned P135 million of the loot, but kept some P128 million withdrawn within four days in October 2004 before the court could freeze his bank accounts. Having complied with this slight condition, the court approved with finality the questioned plea deal.

The Sandiganbayan will set a sentencing hearing. Direct bribery merits imprisonment of eight to 12 years; facilitating money laundering, four to seven years. But the court by option can keep Garcia free under the Indeterminate Sentence Law. It can deem as time served the six years he was detained — November 2004 to December 2010 — for court martial and non-bailable plunder. It can also forgo the minimum eight-year term for bribery. In two recent bribery cases the Sandiganbayan sentenced a state prosecutor and a labor arbiter to four and three years, respectively.

The Ombudsman, which cooked up the plea deal in February 2010, also has withdrawn the plunder raps against Garcia’s family. Wife Clarita, and three sons Ian Carl, Juan Paolo and Timothy Mark are US citizens. They were dropped from the charge sheet upon allowing Garcia to surrender their P135-million co-holdings as part of the bargain. In 2008 US Immigration and Customs Enforcement detained Ian Carl and Juan Paolo for bulk cash smuggling of $100,000 in December 2003. Reportedly they each posted bail of $1 million until given suspended sentences. For a few weeks Clarita and Timothy were put on house arrest, with location tracking anklets. The last time he was in the news, Timothy was living it up in the plush Trump Plaza condo in New York City, registered in his and Clarita’s names. Clarita and the two other sons reside in Michigan. They reportedly have another apartment in New York and a house in Ohio.

The Solicitor General is to move for reversal of the plea deal’s approval, either in the Sandiganbayan or the Supreme Court. But events can overtake this. Then-Ombudsman Merceditas Gutierrez had filed the bargain in court on February 25, 2010. This was the day after retirement of her nemesis, Special Prosecutor Dennis Villa-Ignacio, with whom she had a two-year feud. The court formally let Garcia plead guilty to the lesser offenses in the morning of December 16, 2010; by noon it granted him bail and ordered his release. It upheld the deal Monday, the first working day after Gutierrez resigned to avoid impeachment trial. Justice works swiftly in the Philippines — but in the wrong direction.

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A debate is whether the plunder rap can be restored against Garcia et al, without putting them in double jeopardy. Supposedly a re-filing of charges is allowed under certain circumstances, like the unearthing of new evidence. This happened to former Armed Forces chief General Fabian Ver, who was initially acquitted but re-indicted for the murder of Ninoy Aquino. In Garcia’s case, his former budget officer Col. George Rabusa has filed a rap for plunder of more than P300 million, with a different set of evidence. Also impleaded are Gen. Jacinto Ligot and nearly two-dozen other generals and past chiefs of staff.

The only thing delaying the formal proceedings at the Department of Justice is Rabusa’s compliance with a technical rule. He is still raising some P200,000 for the photocopying and binding of the mandatory 32 copies of the complaint sheet and annexed evidence.

As for the Sandiganbayan approval of Garcia’s return of only P135 million, all is not lost. The government can still go after Garcia’s un-surrendered loot. This is allowed by the Constitution, says De La Salle University law professor Dennis Funa.

Article XI, Accountability of Public Officers, Section 15 states: “The right of the State to recover properties unlawfully acquired by public officials or employees, from them, or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel.”

The government, Funa says, “can never be estopped by anything, not even by a court-approved plea bargain. All courts are committed to follow the Constitution. The wording of the Constitution is sufficient to allow the pursuit of the other ill-gotten wealth.”

The intent of the framers of the Constitution is clear in the wording, Funa adds. “It was their aim that recovery of unlawfully acquired properties be unstoppable. A reading of the plea bargain agreement itself would show that the government has not waived its right to go after Garcia to recover all ill-gotten wealth. The only effect of the approval of the plea bargain, therefore, is to reduce any criminal imprisonment that may be imposed upon Garcia.”

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