19 Reasons why no-plea bargaining in drugs cases (RA 9165) VIOLATES separation of powers

This is based on the arguments made by the petitioner against public respondent in ESTIPONA,JR. v. JUDGE LOBRIGO (G.R. No. 226679; August 15, 2017). This case finally declared Section 23 of RA 9165 UNCONSTITUTIONAL for being a violation of the doctrine of equal protection and the doctrine of separation of powers.

[1] "The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

Section 5. The Supreme Court shall have the following powers:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was a/so granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading. practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive.

The separation of powers among the three co-equal branches of our government has erected an impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this Court. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by this Court."

[2] By denying persons accused under the present anti-drugs law the opportunity to plea bargain, Congress encroached upon the exclusive power and sole prerogative of the Supreme Court to promulgate rules of procedure. We submit that plea bargaining falls within the ambit of procedural law, as opposed to substantive law. The procedural nature of plea bargaining is evident from the following:

Steps in a Trial Plea Bargaining

Many criminal cases are resolved out of court by having both sides come to an agreement. This process is known as negotiating a plea or plea bargaining . In most jurisdictions it resolves most of the criminal cases filed . Plea bargaining is prevalent for practical reasons.

• Defendants can avoid the time and cost of defending themselves at trial , the risk of harsher punishment, and the publicity a trial could involve. • The prosecution saves the time and expense of a lengthy trial. • Both sides are spared the uncertainty of going to trial. • The court system is saved the burden of conducting a trial on every crime charged.

Either side may begin negotiations over a proposed plea bargain, though obviously both sides have to agree before one comes to pass. Plea bargaining usually involves the defendant's pleading guilty to a lesser charge, or to only one of several charges. It also may involve a guilty plea as charged , with the prosecution recommending leniency in sentencing. The judge, however, is not bound to follow the prosecution's recommendation. Many plea bargains are subject to the approval of the court, but some may not be (e.g., prosecutors may be able to drop charges without court approval in exchange for a "guilty" plea to a lesser offense)."

[3] "Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J. , 980.) Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J. , 27; 52 C. J. S., 1026.)

As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps bv which one who commits a crime is to be punished. (22 C. J. S., 49.)"

[4] Robert Brady versus United States 30 , a U.S . case upholding the constitutionality of the process of plea bargaining, elucidates the benefits of plea bargaining insofar as criminal procedure is concerned, viz:

"The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden , because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages-the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury."

This all the more establishes the procedural nature of the plea bargaining process; it is a procedural device to eliminate the burdens of a trial.

[5] A similar conclusion may be deduced from the Supreme Court ruling in People of the Philippines versus Hon. Martin S. Villarama, Jr. and Jaime Manuel , which described the plea bargaining process as follows, viz:

"Plea bargaining in criminal cases, is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval (see Black Law Dictionary, 5th Ed ., 1979, p. 1037). It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge (ibid).

xxx xxx xxx However, the acceptance of an offer to plead guilty to a lesser offense under the aforequoted rule is not demandable by the accused as a matter of right but is a matter that is addressed entirely to the sound discretion of the trial court (Manuel v. Velasco, et al. , G.R. No. 94732, February 26, 1991 , En Banc Resolution). "

[6] The 1985 Rules on Criminal Procedure even expressly stated the purpose of pre-trial and pre-trial conference, with plea bargaining as among the agenda thereof:

"Section 1. Pre-trial; when proper. To expedite the trial, where the accused and counsel agree, the court shall conduct a pre-trial conference on the matters enumerated in Section 2 hereof, without impairing the rights of the accused."

[7] Section 23 of R.A. No. 9165 deprives not only the accused and the prosecution, but more importantly, the courts, of the benefits of a validly entered plea bargaining agreement. It is antithetical to the early resolution of cases and de- clogging of court dockets, especially in instances such as this case, where the prosecution does not object and both the prosecution and defense are open to the possibility of plea bargaining.

[8] The process being procedural, Congress trespassed upon the Supreme Court's power to promulgate rules on pleading, practice and procedure when it prohibited plea bargaining in drug offenses via Section 23 of R.A. No. 9165. The subject provision effectively repealed the following procedural rules in the Rules of Court:

Rule 116 of the Rules of Court: "Section 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily 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. (sec. 4, circ. 3898)"

Rule 118 of the Rules of Court: "Section 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following : (b) plea bargaining xxx xxx xxx"

[9] That Section 23 of R.A. No. 9165 is unconstitutional was equally concluded by public respondent Judge Lobrigo in his Order dated 12 July 2016 34 : "xxx xxx xxx Indeed , plea bargaining forms part of the Rules on Criminal Procedure particularly under Rule 118, the rule on pre-trial conference. It is only the Rules of Court promulgated by the Supreme Court pursuant to its constitutional rule-making power that breathes life to plea bargaining. It cannot be found in any statute. Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional because it in effect suspends the operation of Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of the mandatory pre-trial conference in criminal cases. xxx xxx xxx Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the declaration of Sec. 23 of R.A. No. 9165, which bars plea bargaining, as unconstitutional because indeed the inclusion of the provision in the law encroaches on the exclusive constitutional power of the Supreme Court."

[10] Yet, he declined to pronounce the unconstitutionality of the challenged provision, reason ing as follows:

"While basic is the precept that lower courts are not precluded from resolving, whenever warranted, constitutional questions, the Court is not unaware of the admonition of the Supreme Court that lower courts must obseNe a becoming modesty in examining constitutional questions. Upon which admonition, it is thus not for this lower court to declare Sec. 23 of R.A. No. 9165 unconstitutional given the potential ramifications that such declaration might have on the prosecution of illegal drugs cases pending before this judicial station."

[11] 48. By so ruling, we humbly submit - with all due respect - that public respondent Judge Lobrido committed grave abuse of discretion. The unconstitutionality of Section 23 of R.A. No. 9165 is too gross and patent for him to refuse to pronounce.

[12] 49. Besides, Regional Trial Courts also have the power to declare any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation as unconstitutional or invalid, subject to appeal to the Supreme Court. Under pain of being repetitive, it bears stressing that Section 5, Article VIII of the 1987 Constitution is explicit in stating that the Supreme Court has the power to review, revise, reverse, modify, or affirm final judgments and orders of lower courts in, among others, all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

[13] so . Thus, it has been held that "while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. We have jurisdiction under the Constitution to 'review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide, ' final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. This simply means that the resolution of such cases may be made in the first instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then 'will be the time to make the hammer fall, and heavily,' to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, and so heal the wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court. " 35

[14] si. Planters Products, Inc. versus Fertiphil Corporation, G.R. No. 166006, 14 March 2008, explains: "It is settled that the RTC has jurisdiction to resolve the constitutionality of a statute, presidential decree or an executive order. xxx xxx xxx xxx xxx xxx In Mirasol v. Court of Appeals, this Court recognized the power of the RTC to resolve constitutional issues, thus:

On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the constitutionality of a statute, presidential decree, or executive order. The Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all Regional Trial Courts.

[15] In the recent case of Equi-Asia Placement, Inc. v. Department of Foreign Affairs, this Court reiterated:

There is no denying that regular courts have jurisdiction over cases involving the validity or constitutionality of a rule or regulation issued by administrative agencies. Such jurisdiction, however, is not limited to the Court of Appeals or to this Court alone for even the regional trial courts can take cognizance of actions assailing a specific rule or set of rules promulgated by administrative bodies. Indeed, the Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts, including the regional trial courts.

[16] Judicial review of official acts on the ground of unconstitutionality may be sought or availed of through any of the actions cognizable by courts of justice, not necessarily in a suit for declaratory relief. Such review may be had in criminal actions, as in People v. Ferrer involving the constitutionality of the now defunct Anti-Subversion law, or in ordinary actions, as in Krivenko v. Register of Deeds involving the constitutionality of laws prohibiting aliens from acquiring public lands. The constitutional issue, however, (a) must be properly raised and presented in the case, and (b) its resolution is necessary to a determination of the case, i.e., the issue of constitutionality must be the very /is mota presented."

[17] Judge Lobrigo's refusal to perform his judicial mandate amounts to grave abuse of discretion.

[18] In Serrano versus Gallant Maritime Services, Inc., G.R. No. 167614, 24 March 2009, the Honorable Supreme Court declared Section 10 of Republic Act No . 8042 as unconstitutional, but not without noting that the Court of Appeals was remiss in failing to take up the issue brought before it in its decision.

[19] In closing, it bears to stress that cases concerning violations of R.A. No. 9165 being handled by the Public Attorney's Office continue to significantly escalate in number. From about thirty-six thousand (36,000) cases in 2011, the PAO now handles around eighty-two thousand (82,000) Therefore, it is undeniable that a positive action from this Honorable Court on the matter of plea bargaining will redound to the benefit of all stakeholders - the courts being declogged of their dockets; the jail facilities nationwide, being decongested; the government, saving financial resources amounting to about Php 1.49 Billion Pesos (a budget of PhpS0.00 for food is allotted every inmate; thus: 82,000 x 50.00 x 365 = Phpl,496,500.00); and the accused, being given the opportunity to reform after incarceration for a lesser number of years and seek rehabilitation, if need be. cases of drug offenses.