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September 02, 2021

ABA ROLI Philippines Hosts Multi-Stakeholder Dialogue on Plea Bargaining in Drug Cases

The American Bar Association Rule of Law Initiative (ABA ROLI), through its Access to Justice and Support to the Rule of Law, (ACCESS) Program and with the support of the United States Agency for International Development (USAID), organized a dialogue on plea bargaining in drug cases in the Philippines. ABA ROLI held the dialogue on September 3 and hosted over 200 participants. This dialogue was the first of its kind in the country following the 2017 ruling of the Supreme Court in Estipona v. Lobrigo that struck down as unconstitutional the provision of Republic Act No. 9165, or the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165), which stipulates that those individuals charged under any provision of said law, regardless of imposable penalty, shall not be allowed to avail of the provision on plea bargaining.

The Dialogue brought together expert representatives from both the government and the civil society sector, who presented perspectives and experiences within the Philippine and United States context. The high-level dialogue was likewise attended by the Prosecutor General of the Philippines, Hon. Benedicto Malcontento of the Department of Justice and the National President of the Integrated Bar of the PhilippinesAtty. Burt Estrada.

Atty. Ana Lisa Soriano, Deputy Chief Public Defender for Luzon, represented the Public Attorneys Office (PAO). PAO was the agency which represented the accused in the landmark decision of the Supreme Court, which currently provides opportunity for any individual accused of violating Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 to apply for plea bargaining. During the dialogue, Atty. Soriano shared PAO’s experience in the case of Estipona v. Lobrigo, in which the prosecution opposed the motion to plead guilty to a lesser offense, albeit having considered the possibility of plea bargaining except for the then clear and express prohibition under the law. Atty. Soriano additionally discussed that plea bargaining has been in practice in the country since the 1940s and is institutionalized as part of the Rules of Court. Atty. Soriano also discussed developments in other drug cases pending final determination, which might have possible ramifications on plea bargaining in drug cases in the future.

Hon. Frank E. Lobrigo, Retired Regional Trial Court Judge of Legazpi City, spoke on the salient features of R.A. No. 9165, and DOJ Circular No. 27, or the “Amended Guidelines on Plea Bargaining” and the Supreme Court’s Plea-Bargaining Framework in Drug Cases. In his presentation, Judge Lobrigo pointed to the practical benefits of the law and the current government’s efforts to address illicit drug trafficking. However, Judge Lobrigo also explained that besides the punitive aspect of the law, it also equally seeks to accomplish restorative justice for drug dependents and those convicted. He also highlighted the general advantages of plea bargaining, including prompt disposition of criminal cases and resource conservation for the court and the prosecution. Judge Lobrigo noted that except for drug cases, there is no existing legal framework for plea bargaining in the Philippines. Additionally, Judge Lobrigo cited further possible equitable reforms to R.A. No. 9165, specifically amendments to the current accessory penalties that impact a broad range of civil and political rights, with the goal of aligning with principles of restorative justice while at the same time obtaining accountability from those found in violation of the law.

Atty. Aubree Sadural, Program Officer with Humanitarian Legal Assistance Foundation (HLAF), presented statistics on persons deprived of liberty (PDLs) as it relates to situations of Philippine detention facilities, particularly those within the jurisdiction of the Bureau of Jail Management and Penology (BJMP) under the Department of the Interior and Local Government. Significant data shared by Atty. Sadural included the increase of PDLs detained in BJMP jails from the 2015 figure of 96,000 detained individuals to 127,339 detained individuals in 2016. By 2019 the figure reached 130,667, wherein 74% or 127,803 of whom were charged with R.A. No. 9165. In 2020, following the Supreme Court decision in the Lobrigo case, there was a significant decline in the jail population to 115,336 individuals. Atty. Sadural explained that this development is attributed to the improved disposition of cases and plea bargaining in drug cases made available by Lobrigo. Atty. Sadural also shared the various challenges of PDLs, in particular those accused of having violated R.A. No. 9165, including limited trained physicians to conduct drug dependency examinations (DDE) necessary for rehabilitation of the accused and also the reservation of PDLs to avail of plea bargaining as it pertains to foreseeable consequences in employment after serving a sentence.

Hon. Richard Grawey, Retired Judge on the 10th Circuit Court of Illinois, United States provided the practical illustration of how individuals undertake plea bargaining in the United States. Judge Grawey explained that in the US, unlike in the Philippines, a judge would only be apprised by the existence of plea-bargaining application when it reaches the court docket and that discussions to plead guilty to a lesser offense are exclusive to the defendant and the prosecutor, both of whom can also raise such a possibility in contrast to the practice and procedure in other jurisdictions. As it pertains to how plea bargaining qualifies as acceptable, Judge Grawey enumerated factors taken into consideration by the judge, including the importance of ensuring that the defendant is not forced or coerced in the process, is represented by a competent counsel, and fully understands the guilty plea and its consequence particularly regarding waived trial rights. He further noted that while the process takes place in open court and the judge exercises discretion to approve the application for plea or not, it is not a requirement that the victim of the crime be present, nor do they have the right to oppose the plea bargaining. Judge Grawey also gave recommendations on factors necessary to achieve just results in plea bargaining agreements, including ethical standards for all lawyers involved, and to pursue justice and not merely to convict.

The dialogue on plea bargaining was very informative. It is timely for the lawyers in both government and private practice, whose work involves drug cases, and for the accused as well. Having poll questions were very insightful as it helped one discern an issue while listening to the speaker. Thank you very much for such a wonderful dialogue.

Atty. Evangeline Capuno, Clerk of Court

Atty. Don Calvert, Department of Justice Overseas Prosecutorial Development Assistance and Training, drew the attention of the participants to the benefits of plea bargaining to all parties in the case including the government and the United States plea system protections. Speaking on system protections, Atty. Calvert discussed the importance of transparency in plea bargaining, including the requirement that a full written agreement be filed in public court records, and emphasized that the plea must be voluntary, with a full understanding of the rights of the accused, and it must be proven that the case facts support the case and the plea. He also reiterated that the accused must have effective counsel in every stage of the plea-bargaining process. On benefits for the court, to the public, and the criminal justice system, Atty. Calvert identified the following outcomes, namely: reduces delay and case backlog; promotes accountability with the public; publicly develops full facts in search for the truth; encourages defendants to take responsibility for criminal acts; and supports law enforcement in identifying witnesses to prosecute corruption and organized criminal organizations. For the accused, the benefits include shorter sentences; avoidance of lengthy trial; acceptance of responsibility for crimes, victims and the public; and a finality that resolves the charges. Speaking on the benefits for law enforcement, Atty. Calvert also mentioned that avoiding trial reduces the likelihood of increased trauma for victims and witnesses. Amongst the successes of plea bargaining in the US experience is the high percentage of cases resolved at 95%-97% cases, reduction in pre-trial delay and case backlog, and reduced financial cost of trial.

Prosecutor General Hon. Malcontento shared that Secretary of Justice Hon. Menardo Guevarra has convened a task force within the Office of the Prosecutor General to undertake revisions to DOJ Circular No. 27. The Prosecutor General also emphasized that plea bargaining in drug cases in 2019 alone has facilitated the disposition of 120,368 cases, which demonstrates the willingness of criminal justice actors to explore alternative means to achieve justice within the bounds of the law.

Survey Results

The participants in the forum, consisting of judges, lawyers, paralegals and advocates from government and civil society organizations, were requested to respond to 8 questions to determine their awareness of the plea-bargaining process in the Philippines and the United States. The pre-test results showed that more than half of the respondents (68%) got the correct answers (Chart 1), indicating the group’s level of knowledge of the topics to be discussed. As a result of the Dialogue on Plea Bargaining in drug cases, participants’ knowledge increased by 26% as revealed by the results of the post-test results where 86% of the respondents got correct answers.

Learn more about ABA ROLI’s work across Asia and the Pacific.