G.R. Nos. 244413 & 244415-16 - Separate Concurring Opinion

G.R. No. 244413, February 18, 2020,
♦ Decision, Carandang, [J]
♦ Concurring Opinion, Leonen, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Concurring Opinion, Zalameda, [J]
♦ Concurring Opinion, Lopez, [J]

NURULLAJE SAYRE Y MALAMPAD @ "INOL", PETITIONER, VS. HON. DAX GONZAGA XENOS, IN HIS CAPACITY AS THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF PANABO CITY, DAVAO DEL NORTE, BRANCH 34; HON. MENARDO I. GUEVARRA, SECRETARY OF THE DEPARTMENT OF JUSTICE; AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

The Court must exercise its power of judicial review sparingly. This judicial approach is called for when the subject of review is an administrative circular which partakes the nature of a statute and has in its favor the presumption of legality. The validity of an administrative issuance must be upheld absent sufficient evidence showing that it exceeded the bounds of the law.

This case stemmed from the Regional Trial Court's Order dated December 6, 2018 which denied the accused's motion for plea bargaining in Criminal Case No. CRC 416-2017 involving the illegal sale of shabu with a total weight of 0.1029 grams. The accused invoked OCA Circular No. 90-2018 and proposed to plea for the lesser offense of illegal possession of drug paraphernalia. However, the prosecution objected explaining that the acceptable plea bargain for the offense charged under DOJ Circular No. 27 is illegal possession of shabu.

For failure to reach a consensus, the RTC denied the accused's motion for plea bargaining and set the case for pre-trial. Unsuccessful at a reconsideration, the accused filed a petition for certiorari and prohibition before this Court ascribing grave abuse of discretion on the part of the RTC. Also, the accused assailed the constitutionality of DOJ Circular No. 27 for altering the more favorable plea bargaining provision of OCA Circular No. 90-2018.

I concur with the ponencia that the RTC did not commit grave abuse of discretion and that the DOJ Circular No. 27 is not unconstitutional.

Prefatorily, I do not find any grave abuse of discretion on the part of the RTC when it denied the accused's motion for plea bargaining. In Estipona, Jr. v. Lobrigo,1 this Court allowed plea bargaining in drugs cases and declared Section 23 of RA 9165 unconstitutional for being contrary to its rule-making authority. Nevertheless, the decision did not change thenature of plea bargaining in our jurisdiction which is defined as a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval.2 It even emphasized the necessity of the prosecutor's consent as one of the conditions precedent to a valid plea bargaining, thus:

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather than accepting a plea of guilty; the prosecutor need not do so if he prefers to go to trial. Under the present Rules, the acceptance of an offer to plead guilty is not a demandable right but depends on the consent of the offended party and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is necessarily included in the offense charged. The reason for this is that the prosecutor has full control of the prosecution of criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on what the evidence on hand can sustain.

[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and importance of a case, prosecutors also must consider other tangible and intangible factors, such as government enforcement priorities. Finally, they also must decide how best to allocate the scarce resources of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge. Because these decisions "are not readily susceptible to the kind of analysis the courts are competent to undertake," we have been "properly hesitant to examine the decision whether to prosecute."

The plea is further addressed to the sound discretion of the trial court, which may allow the accused to plead guilty to a lesser offense which is necessarily included in the offense charged. The word may denotes an exercise of discretion upon the trial court on whether to allow the accused to make such plea.61 Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to be allowed as a matter of bargaining or compromise for the convenience of the accused. (Emphases Supplied).

Moreover, it is settled that the RTC has the authority to proceed or disallow the plea bargaining despite objection from the prosecutor. As discussed in OCA Circular No 80-2019 and A.M. No. 18-03-16-SC, April 2, 2019,3 plea bargaining is addressed to the sound discretion of the judge, thus:

Significantly, plea bargaining is always addressed to the sound discretion of the judge, guided by the Court issuances, like A.M. No. 18-03-16-SC dated April 10, 2018. If the objection to the plea bargaining is solely to the effect that it will weaken the drug campaign of the government, then the .iudges may overrule such objection because they are constitutionally bound to settle actual controversies involving rights which are legally demandable and enforceable. Judges must decide cases based on evidence, law and jurisprudence, they cannot just defer to the policy of another Branch of government. However, if objections to the plea bargaining are valid and supported by evidence to the effect that the offender is a recidivist, a habitual offender, or lrnown in the community as a drug addict and troublemaker, or one who has umlergone rehabilitation but had a relapse, or has been charged many times, or when the evidence of guilt of the charge is strong, courts should not allow plea bargaining, because that will not help keep law and order in the community and the society. And just because the prosecution and the defense agree to entr into a plea bargain, it does not mean that the courts will approve the same. The judge must still exercise sound discretion In granting or denying plea bargaining, taking into account relevant circumstances, such as the character of the accused. (Emphases Supplied)

Indeed, given the objection of the prosecutor, the RTC may deny the accused's motion for plea bargaining and continue with the proceedings. This is what transpired here. The RTC's deference to prosecutorial decisions as to who to prosecute does not constitute grave abuse of discretion which is a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perfonn a duty enjoined by law, as where the power IS exercised in an arbitrary and despotic manner because of passion or hostility.

Similarly, I find no reason to strike down DOJ Circular No. 27. Foremost, the Secretar;of Justice issued the circular in the exercise of his power of direct control and supervision over the prosecutors.4 The circular provids that "[i]n the event that the court insists on approving a plea bargain that is not allowed or goes beyond what is allowed under these guidelines, the trial prosecutor shall inte1pose his/her vigorous objection in open court and manifest that the State does not give its consent to the plea bargain." As an administrative issuance, the circular enjoys the presumption of legality.5

Further, DOJ Circular No. 27 is an expression of the prosecution's consent which cannot be undermined lest there will be no valid plea bargaining. As discussed in Estipona, there is give-and-take negotiation and mutuality of advantage common in plea bargaining. As such, the accused cannot insist his otier to plead guilty to a lesser offense absent the prosecutor's consent.

More importantly, DOJ Circular No. 27 can be harmonized with OCA Circular No. 90-2018.1a₩phi1 It is a principle in statutory construction that in case of seemingly conflicting laws, rules or regulations, careful scrutiny must be had before any court may strike down either of them as void and unconstitutional.6 In this case, both circulars provided for the "acceptable plea bargain" in drugs cases which are not mutually exclusive of each other. Here, OCA Circular No. 90-2018 did not limit the acceptable plea bargain of illegal sale of shabu to illegal possession of drug paraphernalia. Rather, I share the OSG's position that it merely provides the lowest possible lesser crime the court may allow the accused to plead guilty. Thus, the court may allow a plea of guilty to a more serious offense but which is still lesser than the offense charged. Hence, the prosecution's counter-proposal of plea to the lesser offense of illegal possession of shabu is still within the framework of OCA Circular No. 90-2018. With this interpretation, there can be no irreconcilable inconsistency between the two circulars.7

Lastly, it must be stressed that declaring DOJ Circular No. 27 unconstitutional without efforts to harmonize the perceived conflicting provisions with OCA Circular No. 90-2018 will remove the negotiated and mutual nature of plea bargaining and will defeat the Secretary of Justice's power of control and supervision over the publtc prosecutors. At any rate, a plea bargaining cannot be allowed for the sole convenience of the accused which is further outweighed by the duty to prosecute drug offenders.