Are the Sins of Gen. Garcia being visited upon his children?

The Inquirer reports that Gen. Garcia and his sons have been charged with the crime of plunder which carries a life sentence. While the case against Gen. Garcia has been widely reported, I’m curious about his children’s liability.  According to the story,

He was accused of having “accumulated, amassed, and acquired ill-gotten wealth by himself and in connivance with the members of his family.”

It alleged that the general used his sons as “couriers” to transport some of the funds to the United States, where 100,000 dollars was seized from them by the US Customs Service in December 1993.

According to the Plunder Law, the crime of plunder is committed when a public officer “amasses, accumulates or acquires ill-gotten wealth.”  Family members are liable if they connive or participate in the commission of those acts.

Based on this, I don’t think Gen. Garcia’s sons are guilty of plunder when the acted as couriers for their father.  In my view, transporting ill-gotten wealth is not included in the act of “amassing, accumulating or acquiring” the same.  At the time Gen. Garcia’s sons were hauling the money to the U.S., the wealth was already ammassed, accumulated or acquired by their father (or so the charge sheet indicates).  Therefore,  the crime of plunder had already been consummated by their father. 

This is not to say that they are altogether innocent.  Perhaps a violation of the Anti-Money Laundering Law was committed or the restriction against the export of foreign currency.  But in my view, plunder was not committed simply because they carried the money with them to the U.S.

Charging the sons of a public official accused of plunder raises serious policy questions, especially if it is done in this manner.  First, it smacks of harrassment.  The Ombudsman knows that a charge of plunder ensures the accused of jail time since he is not entitled to bail as a matter of right.  In other words, the judge can deny bail to the accused if  the evidence of guilt is strong.  This means Gen. Garcia’s sons go to jail while the court system sorts out their true liability.  Given the lethargic pace of our judicial system, this can take at least a year to do.  in the meantime, this puts pressure on the accused to enter into a compromise with the government in order to spare his children — not because they are guilty but because the judicial system will cause them undue hardship. 

The cost of proving innocence is higher for the accused.  Who can stand to see his child suffer even for a crime one did not commit?  This means a person accused of plunder may agree to plead guilty to a lesser offense if only to save his kin from the horrors of our penal system.

Second, if the Ombudsman takes such a liberal view of plunder, then perhaps the lawyers of former Pres. Estrada have a point — the plunder law is unconstitutional because it is vague.  It will be recalled that a practicing lawyer was charged with the former president simply because he incorporated a non-profit foundation.  If children can be charged because they carried ill-gotten cash, I wonder if they’re also guilty because they enjoyed the fruits of the same.  If the child lives in a condo or studies in a foreign school paid for with ill-gotten wealth, must he be charged as well?  Obviously not. 

Third, should the Ombudsman be permitted to use the law in this manner, that is, to put pressure upon a person suspected of graft?  If not, what measures can be taken against him if he repeats this pattern?  Note that if the accused agrees to a settlement, then he can’t bring the suit.  If not him, then who can?  The Constitution after all creates a presumption of innocence and the misuse of a statute to achieve a quick conviction renders this presumption useless. 

While in some cases the sins of the father should be visited upon the child, this normative rule should not apply in cases where the children are innocent of the father’s crime.  They should not be made pawns for the sake of promoting the public good.  Public prosecutors should be more circumspect in holding them accountable unless their guilt can be sufficiently established.