VP Binay lobbied for General Garcia
MANILA, Philippines – Vice President Jejomar Binay kept his silence at the height of public outrage over the plea bargain deal between the Ombudsman and former military comptroller and retired Maj General Carlos Garcia over his P303-M plunder case.
In a Rappler exclusive, here's what happened behind the scenes: Binay lobbied with President Benigno Aquino III to approve the deal that finally allowed Garcia to post bail and deal with lesser offenses.
In a letter dated Jan. 3, 2011, or a few weeks after the "secret" plea bargain deal was finally exposed, Binay told Aquino to consider the option, arguing that the government had a weak plunder case against Garcia anyway.
In that letter marked "Private and Confidential," Binay informed Aquino that based on the information that he had, the government failed to build a strong case against the disgraced former general and therefore a plea bargain “option should be considered by the prosecution.”
We were informed about the existence of this letter as early as March 2011, in the course of a research on a Newsbreak book, "The Enemy Within: An Inside Story on Military Corruption," but we could not get hold of a copy then. It was only this month, April, that the letter was given to us.
Binay did not deny its existence. Sought for comment last Tuesday, April 24, Binay chose to remain silent, invoking the sub judice rule as the contents of the letter supposedly involved a pending case.
It was not clear what prompted Binay to give the President his unsolicited advice since he has not publicly stated his position on the plea bargain issue, nor was he involved with it in any way.
He was also dismissive when Rappler asked about his reasons for advising Aquino to consider the plea bargain deal.
"There's something we call the best evidence [rule].Since you have the document, you already know the reason behind it," he said.
(Read the letter below)
The plea bargain deal triggered ouster calls against then Ombudsman Merceditas Gutierrez, an appointee of former President Gloria Macapagal-Arroyo. She was impeached by the House of Representatives for hammering out an agreement that various sectors said betrayed public interest.
She quit in May 2011, a few days before the Senate was to start her impeachment trial.
A Malacañang imprimatur on the plea bargain deal would have taken some heat off Gutierrez.
Knowledgeable sources say Binay, in the first place, was not supportive of ousting Gutierrez, who was tagged by Malacañang as a major stumbling block in its effort to go after Arroyo.
At the time he wrote the letter to Aquino, Binay’s wife, former Makati mayor Elenita Binay, had a pending case with the Ombudsman for graft and malversation charges over the alleged overpriced purchase of some P43-M worth of hospital equipment in 2001.
In July 2011, then acting Ombudsman Orlando Casimiro cleared Mrs Binay of the charges. Other city officials charged with Mrs Binay, however, were indicted before the Sandiganbayan.
Given that context, Binay’s letter raises some questions: Was the presumptive presidential candidate in 2016 acting to curry favor with Gutierrez, who was then handling his wife’s graft case? Or was he simply acting in the best interest of the public?
Not privy to the case
In his letter, Binay admitted that he was not privy to the official records of the case.
What he had, he stressed, were pieces of information from people familiar with the case (whom he did not name), and that there was no sufficient evidence to pin down Garcia in the plunder case.
Still, Binay’s self-declared lack of first-hand knowledge of the Garcia case did not prevent him from giving his president some legal advice.
In the letter, Binay, a lawyer, referred to one supposed weak evidence—Clarita Garcia’s affidavit—in which she practically spilled the beans on her husband’s source of illegal wealth.
Binay argued that Clarita’s statement was hearsay evidence since at the time she executed it, no court had yet acquired jurisdiction over her. Therefore, Binay said, she could not testify on the veracity of her affidavit.
He also said her affidavit was inadmissible as evidence in court since it contained privileged information between spouses. He cited Sec. 22, Rule 130 of the Rules of Court, or the Marital Disqualification Rule, which bars spouses from testifying against each other, without the consent of the affected spouse.
Binay also lectured Aquino that for the government to have a tight case of plunder against the military officer, a "pattern" of criminal acts must be established.
He told Aquino that approving the plea bargain deal would prove to be more advantageous to the government for the following reasons:
a. Garcia will still serve jail time for not less than 6 years (the penalty for direct bribery) because a plea bargain deal 'cannot be used as a mitigating circumstance'
b. his admission of guilt could be used against him in tax evasion cases and forfeiture cases
c. he shall be fined for not less than three times the amount of the bribe
d. Binay said he received information that only P100-M of Garcia's wealth could be accounted for. If more money will be uncovered, this can still be forfeited as he has pending forfeiture cases.
e. the plea bargain deal does not allow Mrs Garcia and her sons to go scot free, as other cases such as direct bribery may be filed against them.
In pressing Aquino to approve the plea bargain, Binay warned that the government might end up empty-handed if it loses the case.
"Indeed, it is better to have a sure conviction for a lesser offense and the return of ill-gotten wealth rather than have none at all," he told Aquino.
Getting it wrong
However, it appears that Binay got it wrong, or could have simply been fed wrong information.
First, Garcia surrendered to the government a total of P135-M worth of real estate properties, shares of stocks and bank deposits.
Second, by the time the plea bargain was approved, Garcia had already served his jail time for pleading guilty to the lesser charge of bribery and facilitating money-laundering.
Third, the forfeiture cases against Garcia were rendered moot since the properties that he surrendered were essentially covered by the pending forfeiture cases.
Fourth, so far, no cases have been filed against Mrs Garcia and her sons in any local court.
Garcia's sons were arrested at the San Francisco international airport in 2003 for failing to declare that they were carrying $100,000 in cash. Clarita said in a sworn statement submitted to US customs official Matthew Van Dyke that her husband received money from Philippine companies that won contracts for military projects.
The arrests led to the dismissal and detention of Garcia and the filing of a plunder suit against him by then Ombudsman Simeon Marcelo.
Binay got it right though on one major count. The Sandiganbayan eventually agreed with him. In approving the plea bargain on May 9, 2011, the graft court ruled that the prosecution failed to establish an air-tight case against Garcia.
The retired general thus got away - almost.
President Aquino called for the nullification of the plea bargain deal.
His appointee at the Office of the Ombudsman, retired Supreme Court Justice Conchita Carpio-Morales, filed a position paper asking the Sandiganbayan to reconsider its approval of the deal. Carpio-Morales did not argue her stand before the Sandiganbayan, however; in a hearing in October 2011, her prosecutors said that what Carpio-Morales filed was not a motion, but merely an expression of her views on the case.
It took Garcia's own organization, the Armed Forces of the Philippines, to put him back in jail in September 2011, because he violated a longstanding military rule - he was a US green card holder when he was still in active service, and he failed to declare all his assets.
Garcia is now serving time in the New Bilibid Prisons in Muntinlupa; it's a two-year jail term. - Rappler.com
(Editor's note: Vice President Binay's camp sent a rejoinder to this story. Read it here.)