Who is to blame for flimsy plunder case vs. Garcia?

“The prosecutors pointed out that even the assets under the name of the general’s wife Clarita and sons Ian Carl, Juan Pablo and Timothy Mark—“which the Sandiganbayan has not yet acquired jurisdiction of”—were returned and transferred under the name of the Republic of the Philippines... Following revelations of Garcia’s “ill-gotten” wealth—first bared when the general’s wife was intercepted entering the United States with a suspiciously huge amount of money—the public was outraged, as well it should be. However, by the time Marcelo left the government service more than a year later, the case against the general had barely gotten off the ground.” (photo: Philippine Star)

Who is to blame for flimsy plunder case vs. Garcia?

Imagine you are a fireman. Your chief orders you to put out a blaze atop a 15-storey building, but all that your boss has given you is a ladder that reaches only the seventh floor of the burning structure.

Worse, your chief who supplied you with the ladder quit his job in the middle of the fire and has added his voice to the kibitzers that are denouncing you for bungling your job. That, by way of analogy, is the quandary government lawyers who were told to go after Maj. Gen. Carlos Garcia, one-time comptroller of the Armed Forces of the Philippines (AFP), now find themselves in.

In September 2004 the Office of the Ombudsman then under Simeon Marcelo gained jurisdiction over the plunder case against Garcia. It was Marcelo who reportedly approved the resolutions and information that accused the general of pocketing some P303 million in state funds.

The task of making the charges against Garcia stick fell to the Office of the Special Prosecutor (OSP), which is the prosecutorial arm of the Office of the Ombudsman.

According to OSP lawyers, it was the Ombudsman at that time who was directing the prosecution panel in filing the resolutions and the case information as well as the case buildup.

Feeling that he could no longer work in government while Gloria M. Arroyo was still president, Marcelo resigned on December 5, 2005. He was replaced by Merceditas Gutierrez.The OSP lawyers who inherited the Garcia case from Marcelo recently told newsmen that they were left holding “what was virtually an empty bag.”

Despite the fact that Marcelo had over a year to build up the plunder case against Garcia, the Office of the Ombudsman at the time had gotten nowhere in its bid to recover the P303 million, which the AFP comptroller allegedly appropriated for himself and his family, the lawyers said.

Following revelations of Garcia’s “ill-gotten” wealth—first bared when the general’s wife was intercepted entering the United States with a suspiciously huge amount of money—the public was outraged, as well it should be. However, by the time Marcelo left the government service more than a year later, the case against the general had barely gotten off the ground.

The general was detained at the Camp Crame stockades, but the OSP lawyers to whom Marcelo left the task of prosecuting Garcia found that they could not pin him down for plunder, which legal experts say is one of the hardest crimes to prove in court.

The requirements for conviction under the Plunder Law—Republic Act (RA) 7080 and later amended by RA 7659—are not limited to the value of the assets stolen from the government—first P75 million, then P50 million.

According to the OSP lawyers, the two resolutions issued by then-Ombudsman Marcelo that paved the way for the filing of the plunder information against Garcia “did not provide for any discussion on the specific acts of the accused that would qualify as unjustly enriching himself at the expense and to the damage of the Filipino people.”The prosecutors said that the information Marcelo supplied was “worded in generalities that inevitably led the prosecution to [grasp at] straws in proving . . . plunder.”

The information even failed to identify Garcia’s co-conspirators beyond the aliases of “John Does, James Does and Jane Does.”“Taking into consideration the fact that the main contention of the prosecution is that . . . Garcia, in conspiracy with John Does and Jane Does, received gift, share, percentage, kickback or pecuniary benefit, the paramount need to prove who these John Does and Jane Does are, and the criminal act these persons performed that provided the means for the said public officer to amass, accumulate and acquire ill-gotten wealth, becomes inescapable,” the prosecutors said.

The information Marcelo issued, the prosecutors said, did not indicate how Garcia’s relatives conspired with the general in committing the crime of plunder.In addition, they said, “evidence was sorely missing on how [Garcia] could have taken advantage of his official position, authority, relationship, connection or influence to be able to amass, accumulate and acquire his ill-gotten wealth.”

The prosecutors said “the information in the plunder case was filed without a solid and complete case buildup for it was obviously couched in general terms.”Based on their evaluation of the plunder case, the prosecutors feared that Garcia would have been adjudged not guilty and allowed to keep his ill-gotten wealth.

Despite the shortcomings of the resolutions and information that the Office of the Ombudsman under Marcelo issued, the prosecutors who inherited the case said they exerted “best efforts and presented a total of 34 witnesses” against Garcia.“When feelers for a plea bargain agreement came from the defense, the prosecution diligently considered whether this could be the best option under the obtaining circumstances,” they said.

Garcia, they added, offered the settlement when government lawyers began turning the proverbial screws on his wife.

Although evidence of “ill-gotten wealth” exists, the government lawyers said it was not enough to prove “the overt or criminal acts alleged in the information” filed by the Ombudsman under Marcelo.“

Rather than risk getting a declaration from the Sandiganbayan acquitting . . . Garcia and with the State not getting, in this plunder case, a single centavo from his ‘ill-gotten’ wealth, the prosecution deem it best to enter into a plea bargain agreement,” the prosecutors said.

The assets Garcia agreed to surrendered to the government were short of the P303 million targeted by the Ombudsman under Marcelo. They include 11 pieces of real estate property in Iloilo, Guimaras, Baguio and Batangas; four motor vehicles; manager’s checks in pesos from Landbank, UCP and AFPSLAI; manager’s check in US dollars from Landbank and BPI; and share of corporate stock—all worth about P130 million.

The prosecutors pointed out that even the assets under the name of the general’s wife Clarita and sons Ian Carl, Juan Pablo and Timothy Mark—“which the Sandiganbayan has not yet acquired jurisdiction of”—were returned and transferred under the name of the Republic of the Philippines.

Under the agreement, Garcia agrees to plead guilty to the lesser charges of direct bribery and facilitating money-laundering. These offenses are not as grave as plunder. Nonetheless, the general’s admission should result in his conviction, which would have been impossible given the skimpy evidence in the plunder resolutions and information filed by the Office of the Ombudsman under Marcelo some six years ago.

This brings up another analogy: a bird in hand or two in the bush, which is better?Several lawmakers have called for an inquiry into the plea-bargain agreement. OSP lawyers have responded with a collective, “Why not?”

They said they would welcome a congressional probe—“if only to clear the air and determine who was really responsible for building such a flimsy plunder case against Garcia.”

Why not, indeed? By: DAN MARIANO