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Before the Court are the consolidated Petitions for Review on Certiorari^[1] under Rule 45 of the Rules of Court: (1) in G.R. No. 254564, the People of the Philippines, through the Office of the Solicitor General (OSG), assails the Decision^[2] dated February 27, 2020 and the Resolution^[3] dated October 27, 2020 of the Court of Appeals (CA) in CA-G.R. SP No. 158301; and (2) in G.R. No. 254974, petitioner Cypher Baldadera y Pelagio (Baldadera) assails the Decision^[4] dated July 1, 2020 and the Resolution^[5] dated November 26, 2020 of the CA in CA-G.R. SP No. 158032. Likewise before the Courts are the following: (i) Letter^[6] dated July 5, 2021 sent by the Philippine Judges Association (PJA), and (ii) Memorandum^[7] dated October 8, 2021 from then Court Administrator (now Associate Justice) Jose Midas P. Marquez seeking the Court's assistance and clarification on the repercussions of the Court's rulings in People v. Reafor^[8] (Reafor) and People v. Borras^[9] (Borras).

The Antecedents
Baldadera was charged with violation of Section 5 Article II of Republic Act (RA) No. 9165,^[10] before Branch 24, Regional Trial Court of Naga City (RTC), docketed as Criminal Case No. 2017-0210. The accusatory portion of the Information reads:

That on or about March 9, 2017, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there, willfully, unlawfully and criminally sell and handed one (1) pc. [s]mall size heat-sealed transparent plastic sachet containing white crystalline substance marked as MAS 3-9-17 with signature, weighing more or less 0.048 gram, in exchange for one (1) pc Five Hundred Peso Bill (Php500.00) with Serial Number B2850766, to poseur-buyer PO1 MICHAEL A. SOLA, which when subjected to laboratory examination yielded positive for the presence of Methamphetamine Hydrochloride, popularly known as 'Shabu,' a dangerous drug, in violation of the above-cited law.

ACTS CONTRARY TO LAW.^[11]

Meanwhile, the Information filed against respondent Erick Montierro y Ventocilla (Montierro) with the RTC, charging him with violation of Section 5, Article II of RA No. 9165, docketed as Criminal Case No. 2017-0082, states:

That on or about January 25, 2017, in the City of Naga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there, willfully, unlawfully and criminally sell, dispense and deliver three (3) pcs. [M]edium heat-sealed transparent plastic sachet containing white crystalline substance marked as EMV 1-25-17 weighing 0.306 gram; EMV-1 1-25-17 weighing 0.123 grain and EMV-2 1-25-17 weighing 0.292 gram, respectively with a total weight of 0.721 gram in exchange of boodle money with Five Hundred Peso bill (Php500.00) with Serial No. S545275 to poseur-buyer SPO2 CLIFFORD A. DE JESUS, which when tested were found positive for the presence of Methamphetamine Hydrochloride popularly known as "Shabu", a dangerous drug, in violation of the above-cited law.

ACTS CONTRARY TO LAW.^[12]

During arraignment, Baldadera and Montierro separately pleaded not guilty. After the termination of the pre-trial, the prosecution in each of the cases presented and formally offered its respective evidence.^[13]

During the pendency of the above criminal cases, the Court En Banc, on August 15, 2017, promulgated its Decision in Estipona, Jr. v. Lobrigo^[14] (Estipona) where it declared Section 23 of RA No. 9165 as unconstitutional for being contrary to the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution.^[15] This declaration meant that plea-bargaining was permitted in drugs cases.

On November 21, 2017, the Department of Justice (DOJ) issued Department Circular No. 061-17^[16] (DOJ Circular No. 61), prohibiting plea bargaining for violations of Section 5 of RA No. 9165 or in cases of illegal sale of dangerous drugs regardless of its quantity.

On April 10, 2018, pursuant to its rule-making power under the 1987 Constitution, the Court promulgated A.M. No. 18-03-16-SC^[17] or the Plea Bargaining Framework in Drugs Cases. According to the Plea Bargaining Framework in Drugs Cases, an accused charged with violation of Section 5 of RA No. 9165 is allowed to plea bargain only when the quantity involved is 0.01 gram to 0.99 gram of methamphetamine hydrochloride or shabu, and for which, the acceptable plea bargain is Section 12 of RA No. 9165 or illegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs punishable by six (6) months and one (1) day to four (4) years and a fine ranging from P10,000.00 to P50,000.00.

On June 26, 2018, the DOJ issued Department Circular No. 027-18^[18] (DOJ Circular No. 27) amending DOJ Circular No. 61. According to DOJ Circular No. 27, for the charge under Section 5 of RA No. 9165, the acceptable plea bargain is the offense under Section 11, paragraph 3 or illegal possession of dangerous drugs with an indeterminate penalty of twelve (12) years and one (1) clay to twenty (20) years and a fine from P300.000.00 to P400,000.00.

G.R. No. 254564
RTC proceedings

Montierro filed with the RTC a proposal for plea bargaining^[19] offering to enter a guilty plea to the lesser offense under Section 12 of RA No. 9165 pursuant to the terms of the Plea Bargaining Framework in Drugs Cases since the total weight of the shabu seized from him was only 0.721 gram.^[20]

The prosecution objected to the offer, citing Regional Order No. 027-E-18 dated May 17, 2018 mandating prosecutors to ensure conformity of plea bargaining agreements with the guidelines set under DOJ Circular No. 61 which, in turn, categorically bars plea bargaining for Section 5 offenses.^[21]

In an Order^[22] dated June 27, 2018, the RTC granted Montierro's plea bargaining proposal, finding that the prosecution's opposition thereto has no valid factual and legal basis. The RTC also declared DOJ Circular No. 61 and Regional Order 027-E-18 as contrary to the Rules of Court and an encroachment on the rule-making power of the Supreme Court.^[23]

Consequently, Montierro was re-arraigned, after which he pleaded guilty to violating Section 12 of RA No. 9165.^[24]

On July 11, 2018, the RTC, despite the oral objection of the prosecutor, issued an Order^[25] setting the promulgation of judgment on August 1, 2018.^[26]

This time invoking DOJ Circular No. 27, which only allows Section 5 violators to plead guilty to Section 11, paragraph 3 and not Section 12 of RA No. 9165, the prosecution sought to reconsider^[27] the Order dated July 11, 2018. The prosecution insisted that pursuant to Section 2,^[28] Rule 116 of the Rules of Court, the consent of the prosecutor and the offended party are required in plea bargaining agreements.^[29]

In its Order dated August 13, 2018, the RTC denied the prosecution's Motion for Reconsideration. The RTC declared that DOJ Circular No. 27 is contrary to the Rules of Court and is an encroachment on the rule-making power of the Supreme Court to the extent that it contradicts the Plea Bargaining Framework in Drugs Cases. According to the RTC, DOJ Circular No. 27 effectively vitiates the prosecutor's consent to the plea bargain, as non­compliance therewith translates to disobedience to the superior officer who issued the circular.^[30]

Thereafter, the RTC, on August 29, 2018, rendered a Judgment^[31] convicting Montierro for the lesser offense of illegal possession of drug paraphernalia under Section 12^[32] of RA No. 9165.^[33]

CA proceedings

On certiorari before the CA, the CA dismissed the prosecution's petition.^[34] First, the CA deemed as waived, for not having been raised before the RTC, the argument of the OSG that one of the reasons why the prosecution opposed Montierro's plea bargain was that there was sufficient evidence to convict him of the crime charged.^[35]

Second, the CA held that no grave abuse of discretion may be attributed to the RTC when it found that the prosecution's objection to Montierro's plea bargain had no leg to stand on.^[36] According to the CA, the RTC's finding that DOJ Circular No. 27 encroaches upon the Supreme Court's rule-making power finds basis both in the fundamental law and existing jurisprudence.^[37] Further, the CA agreed with the RTC that under DOJ Circular No. 27, the prosecutor would not have been free to consent to Montierro's plea bargain because the prosecutor is bound by his oath of office and is mandated to follow DOJ Circular No. 27 under pain of being administratively charged for disobedience.^[38]

In a Resolution^[39] dated October 27, 2020, the CA denied the OSG's Motion for Reconsideration.

Hence, the petition docketed as G.R. No. 254564.^[40]

G.R. No. 254974
RTC Proceedings

On June 20, 2018, Baldadera submitted before the RTC a plea bargaining proposal to enter a plea of guilty to the lesser offense under Section 12 Article II of RA No. 9165, considering that the quantity of shabu involved in Criminal Case No. 2017-0210 was only 0.048 gram.^[41]

On June 21, 2018, the prosecutor objected to Baldadera's plea bargaining proposal in view of the guidelines under DOJ Circular No. 61, which prohibits prosecutors of the DOJ handling drugs cases from entering into a plea bargaining for violation of Section 5 of RA No. 9165.^[42]

In an Order^[43] dated June 27, 2018, the RTC granted Baldadera's plea bargaining proposal to plead guilty to a lesser offense. The RTC held that DOJ Circular No. 61 is contrary to the Plea Bargaining Framework in Drugs Cases, thus encroaching upon the rule-making power of the Supreme Court.^[44]

On July 18, 2018, the RTC vacated Baldadera's former plea and, notwithstanding the objection of the prosecution grounded on DOJ Circular No. 61, allowed Baldadera to plead guilty to the offense of violation of Section 12 of RA No. 9165.^[45]

The prosecution moved for reconsideration on the ground of lack of consent to the plea bargaining proposal, which is an indispensable requirement under Section 2, Rule 116 of the Rules of Court.^[46]

In an Order^[47] dated August 13, 2018, the RTC denied the prosecution's motion for reconsideration. The RTC ruled that DOJ Circular No. 27, which revised DOJ Circular No. 61, is in conflict with the Plea Bargaining Framework in Drugs Cases and an encroachment on the rule-making power of the Supreme Court enshrined in the Constitution. While the Plea Bargaining Framework in Drugs Cases allows the accused to plead guilty to a lesser offense of violation of Section 12, Article II of RA No. 9165 if the quantity of shabu is less than one gram despite being charged with violation of Section 5, Article II of RA No. 9165, DOJ Circular No. 27 only allows the accused to plead guilty to a lesser offense of violation of Section 11, paragraph 3, Article II of RA No. 9165. The RTC explained that the non-consent to the plea bargaining by the prosecution is vitiated by DOJ Circular No. 27.^[48]

On August 23, 2018, due to Baldadera's plea of guilty to the offense of violation of Section 12 of RA No. 9165, the RTC rendered judgment convicting Baldadera for violation of Section 12, Article II of RA No. 9165.^[49] Baldadera was imposed the penalty of imprisonment of six (6) months and one (1) day as minimum to four (4) years as maximum. He was further ordered to pay a fine of Fifty Thousand Pesos (P50,000.00) and directed to submit himself to a drug dependency test and undergo treatment and rehabilitation if he admits drug use, or denies it but is found positive after the drug dependency test.^[50]

CA Proceedings

The People, through the OSG, filed with the CA a Petition for Certiorari assailing the afore-stated Orders and Judgment of the RTC, docketed as CA-G.R. SP No. 158032.

On July 1, 2020, the CA rendered its Decision,^[51] the dispositive portion of which reads:

ACCORDINGLY, the petition is GRANTED and a writ of certiorari is hereby issued NULLIFYING and SETTING ASIDE the assailed Orders dated June 27, 2018 and August 13, 2018 as well as the Judgment dated August 23, 2018, rendered by respondent Judge in Criminal Case No. 2017-0210. The Regional Trial Court, Branch 24 of Naga City is DIRECTED to proceed with dispatch with the reception of defense evidence and to render judgment based on the evidence presented by the parties.

SO ORDERED.^[52]

In setting aside the Orders and Judgment of the RTC, the CA highlighted the ruling in Estipona that a plea of guilty to a lesser offense is only allowed with the express consent of the prosecution in accordance with Section 2, Rule 116 of the Rules of Court.^[53] While recognizing as valid the RTC’s holding that the Plea Bargaining Framework in Drugs Cases prevails over DOJ Circular No. 27, the CA nevertheless held that the consent of the prosecutor is a condition sine qua non for the validity of plea bargaining agreement in drugs cases.^[54]

The CA further found that the RTC judge acted with grave abuse of discretion when he granted the plea to a lesser offense without requiring Baldadera to submit to a drug dependency test pursuant to A.M. No. 18-03-16-SC and without evaluating the evidence of the prosecution.^[55]

In a Resolution^[56] dated November 26, 2020, the CA denied Baldadera's Motion for Reconsideration.

Hence, the petition docketed as G.R. No. 254974.^[57]

The Petitions
In G.R. No. 254564, the OSG argues that DOJ Circular No. 27 is valid and does not encroach upon the rule-making power of the Court.^[58] It submits that DOJ Circular No. 27 merely sets the uniform guidelines to be used by prosecutors in entering into plea bargaining agreements and that it is not a rule of procedure. DOJ Circular No. 27 is a policy direction set by the Secretary of Justice in view of the government's intensified campaign to curb problems in illegal drugs.^[59] The OSG posits that the Plea Bargaining Framework in Drugs Cases merely refers to the lowest possible crime that the accused may plead guilty to. Thus, the courts may allow a plea of guilty to a more serious offense but which is still lesser than the offense originally charged.^[60]

Further, the OSG stresses that the consent of the prosecution and the offended party are still necessary for a valid plea bargain. It is this "mutually satisfactory disposition of the case"^[61] that is submitted for the court for its approval. Since, in these cases, the prosecution vigorously objected to the plea bargaining, there is nothing for the court to approve.^[62]

In G.R. No. 254974, Baldadera insists that the prosecution abused its discretion when it refused to give consent to plea bargaining on the ground that DOJ Circular Nos. 61 and 27 prohibit prosecutors from entering into a plea bargain for violation of Section 5 of RA No. 9165.^[63] He maintains that the shabu allegedly taken from him falls within the 0.01 gram to 0.99 gram threshold provided for under the Plea Bargaining Framework in Drugs Cases as the contraband involved is only 0.048 gram.^[64] He argues that it is incorrect to say that the consent of the prosecutor and the offended party is indispensable for the validity of the plea bargaining to a lesser offense as this view is tantamount to a surrender of the court's role and supreme authority to command the course of the case.^[65] He also claims that the Plea Bargaining Framework in Drugs Cases neither required a drug dependency test for plea bargaining, nor made it a condition sine qua non before the prosecution gives consent to a plea bargain.^[66]

Meanwhile, in A.M. No. 21-07-16-SC, the PJA expresses concern that the Court's ruling in the cases of Reafor and Borras will render the Plea Bargaining Framework in Drugs Cases a dead-letter rule as it practically obliterates plea bargaining in illegal drugs cases which was otherwise allowed under Estipona.^[67] The PJA highlights that plea bargaining in drugs cases helps achieve the twin-purpose of the law — to result in a conviction and to provide an opportunity for rehabilitation and restorative justice.^[68] On the other hand, the PJA explains that the recent Court issuances, which allow a prosecutor to withhold consent on the basis of DOJ Circular No. 27, may lead to possible injustice. The PJA points out that compared to a man charged with Murder, who may plead to the lesser offense of Death caused by Tumultuous Affray under Article 251 of the Revised Penal Code, which may make him eligible for parole, a man accused of violating Sections 5 and 11 of RA No. 9165 involving two sachets of 0.1 gram of shabu will be condemned for the rest of his life and will be deprived of his political and civil rights because he cannot avail of plea bargaining under the Court's Plea Bargaining Framework in Drugs Cases due to its conflict with DOJ Circular No. 27.^[69]

In its Resolution^[70] dated November 9, 2021, the Court ordered the consolidation of the petitions in G.R. No. 254974 and G.R. No. 254564 and A.M No. 21-07-16-SC.

On February 15, 2022, finding the relation of issues in A.M. No. 18-03-16-SC, the Court consolidated said case to the present cases.^[71] In A.M. No. 18-03-16-SC, a memorandum dated October 8, 2021 from then Court Administrator (now Associate Justice) Jose Midas P. Marquez seeks clarification from the Court on whether the ruling in Reafor can be basis for the judges to overturn, on motion for reconsideration, plea bargaining proposals which were approved without the consent of the prosecution.^[72]

Issues
Parsed from the submissions of the parties, the critical issues raised before the Court are:

1. Whether the trial courts erred in declaring DOJ Circular Nos. 61 and 27 invalid for encroaching upon the Court's rule-­making power;
   
   
2. Whether the RTC erred in approving Montierro and Baldadera's plea bargaining applications despite the continuing objection of the prosecution on the ground that DOJ Circular No. 27 prohibits plea bargaining for illegal sale of dangerous drugs under Section 5 to the lesser offense of illegal possession of drug paraphernalia under Section 12 of RA No. 9165;
   
   
3. Whether the requirement of mutual agreement of the parties for a valid plea bargaining is inconsistent with the objective of RA No. 9165 of rehabilitating a drug offender accused of violating the law involving small quantity of drugs; and
   
   
4. Whether a drug dependency test is a pre-requisite for the approval of a plea bargaining proposal.

The Court 's Ruling
At the very outset, the Court takes judicial notice of DOJ Department Circular No. 18^[73] dated May 10, 2022 (DOJ Circular No. 18), which took effect on the same date. It appears that DOJ Circular No. 18 amended DOJ Circular No. 27 to conform to the Court-issued Plea Bargaining Framework in Drugs Cases.

Under DOJ Circular No. 27, an accused charged with violation of Section 5 of RA No. 9165 (for less than 5 grams of shabu or less than 300 grams of marijuana) may plead guilty to a lesser offense under Section 11, paragraph 3 or Possession of Dangerous Drugs; whereas, under the Court's Plea Bargaining Framework in Drugs Cases, the acceptable plea for violation of Section 5 of RA No. 9165 (for 0.01 gram to 0.99 gram of shabu or 0.01 gram to 9.99 grams of marijuana) is the lesser offense of Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs under Section 12 of RA No. 9165. This inconsistency was reconciled in DOJ Circular No. 18, where the acceptable plea for violation of Section 5 of RA No. 9165 is now Section 12 of RA No. 9165, which is in accordance with the Court's Plea Bargaining Framework in Drugs Cases.

With the amendments introduced in DOJ Circular No. 18, the prosecution's objection to Montierro and Baldadera's plea bargaining proposals, which was based solely on DOJ Circular No. 27, can now be considered as effectively withdrawn. As such, the issues of whether the RTC erred in declaring DOJ Circulars No. 61 and 27 invalid and overruling the prosecution's continuing objection to Montierro and Baldadera's plea bargaining proposals are now rendered moot and academic.

Nevertheless, when a case or an issue becomes moot, jurisprudence provides that the Court will still rule on the case when any of the following circumstances is present:

first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest are involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.^[74]

In the present case, all four of the above circumstances obtain.

First, to give primacy to the DOJ policy as provided in DOJ Circulars over the exclusive rule-making power of the Court is to gravely contravene the Constitution and evade that same constitutional power. To be sure, the evolving Philippine Constitutions demonstrably showed the increasing empowerment and independence of the Supreme Court, as the Court traced in the case of Echegaray v. Secretary of Justice:^[75]

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar.

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:

x x x x

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

x x x x

(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 also 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. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial.^[76] (Emphasis supplied; citations omitted)

As the Court in Echegaray emphatically noted, the Constitution did not patently strengthen the exclusive rule-making power of the Court only for the Court itself to neglect it or, worse, diminish it by its own concession.

Second, the exceptional character and overarching public interest that is cast over the issue at hand are demonstrated by the fact that, as the Court appreciated in the case of Almora v. Dela Rosa,^[77] executive policies with respect to apprehension and prosecution rising from the drug war go into the very matters of fundamental constitutional rights, to wit:

The resolution of the present petitions by this Court, if made with the benefit of a facial perusal of the pre- and post-operations police reports relating to the 20,322 officially confirmed deaths in the anti-drug war from July 1, 2016 to November 27, 2017, will allow this Court to perform its constitutional duty to "promulgate rules concerning the protection and enforcement of constitutional rights." The unusually high number of deaths in the anti-drug war requires a deeper understanding of the "application or operation" of PNP CMC 16-2016 and DILG Memorandum Circular (MC) 2017-112 in order to devise a more effective protection, and a more enhanced enforcement of fundamental constitutional rights.^[78]

Third, the case is capable of repetition yet evading review because the DOJ may again issue regulations posed as "internal guidelines" for its prosecutors, which regulation may once again conflict with the Court's exclusive power to issue rules and regulations on plea bargaining.

And fourth, there is a need to rule on this issue to guide the bench, the bar, and the public, and in light of the concerns raised by the PJA in relation to the Court's ruling in the cases of Reafor and Borras.

To be sure, the Court can dismiss the instant petitions, but the present consolidated cases are the opportune time for the Court to reiterate and assert its exclusive rule-making power in the plea bargaining process, as recognized in the cases of Estipona and Sayre v. Xenos^[79] (Sayre). Furthermore, given the several cases pending before trial courts involving the same issue, the Court is called upon to clarify its rulings in Estipona and Sayre vis-à-vis other cases such as Reafor and Borras, which appear to have caused confusion among trial judges.

During the deliberations for this case, it was suggested that the Court should simply rule that the present petitions are moot and academic, and to order the remand of the case to the trial courts to secure the prosecution's consent. Doing these, however, would amount to the Court's castration of itself in favor of the Executive. Effectively, albeit indirectly, the Court would be abdicating its exclusive rule-making power in favor of the prosecution. Estipona and Sayre would unquestionably become useless and rendered nugatory.

Finally, for the Court to simply dismiss despite the discernment of a clear controversy that is capable of repetition, and therefore requires a definitive ruling, is not merely an abdication of its power but more so a repudiation of its responsibility to play its crucial role in checking and balancing the exercise of the powerful machinery of the State. Thus, the Court discerns a need to set forth certain guidelines in plea bargaining in drugs cases.

Plea Bargaining is a rule of procedure
within the Court's exclusive domain

It is already well-settled, as stated in the case of Estipona, that plea bargaining in criminal cases, by nature and tradition, is squarely a rule of procedure which falls within the Court's exclusive rule-making power as provided under Section 5(5), Article VIII of the 1987 Constitution.

Tracing its roots in our jurisdiction, the Court, in Estipona, recognized that plea bargaining has always been part of Philippine rules of procedure since 1940 and was subsequently carried over to the 1964 Rules of Court, the 1985 and the current 2000 Rules of Criminal Procedures, viz.:

Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940, when the 1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated:

SEC. 4. Plea of guilty of lesser offense. — The defendant, with the consent of the court and of the fiscal, may plead guilty of any lesser offense than that charged which is necessarily included in the offense charged in the complaint or information.

When the 1964 Rules became effective on January 1, 1964, the same provision was retained under Rule 118 (Pleas). Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the provision on plea of guilty to a lesser offense was amended. Section 2, Rule 116 provided:

SEC. 2. Plea of guilty to a lesser offense. — The accused with the consent of the offended party and the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment of the complaint or information is necessary. (4a, R-118)

As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial. Section 2, Rule 118 mandated:

SEC. 2. Pre-trial conference; subjects. — The pre-trial conference shall consider the following:

(a)	Plea bargaining;
(b)	Stipulation of facts;
(c)	Marking for identification of evidence of the parties;
(d)	Waiver of objections to admissibility of evidence; and
(e)	Such other matters as will promote a fair and expeditious trial.

The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2, Rule 116 was modified in 1987. A second paragraph was added, stating that "[a] conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of double jeopardy."

x x x x

Currently, the pertinent rules on plea bargaining under the 2000 Rules are quoted below:

RULE 116 (Arraignment and Plea):

SEC. 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, Cir. 38-98)

RULE 118 (Pre-trial):

SEC. 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 Court, 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:

(a)	plea bargaining;
(b)	stipulation of facts;
(c)	marking for identification of evidence of the parties;
(d)	waiver of objections to admissibility of evidence;
(e)	modification of the order of trial if the accused admits the charge but interposes a lawful defense; and
(f)	such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 2 & 3, Cir. 38-98)[80] (Emphasis and underscoring supplied)

The Court further explained in Estipona that the basic premise for the adoption of plea bargaining in our jurisdiction is the furtherance of the constitutionally guaranteed right to speedy disposition of cases, which benefits not only the accused but the State and the offended party as well, viz.:

By the same token, it is towards the provision of a simplified and inexpensive procedure for the speedy disposition of cases in all courts that the rules on plea bargaining was introduced. As a way of disposing criminal charges by agreement of the parties, plea bargaining is considered to be an "important," "essential," "highly desirable," and "legitimate" component of the administration of justice. Some of its salutary effects include:

x x x 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. (Brady v. United Slates, 397 U.S. 742, 752 [1970])

Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. (Santobello v. New York, 404 U.S. 257, 261 [1971])

The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings. (Blackledge v. Allison, 431 U.S. 63, 71 [1977])

In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval." There is give-and-take negotiation common in plea bargaining. The essence of the agreement is that both the prosecution and the defense make concessions to avoid potential losses. Properly administered, plea bargaining is to be encouraged because the chief virtues of the system – speed, economy, and finality – can benefit the accused, the offended party, the prosecution, and the court.^[81] (Emphasis supplied; citations omitted)

Undeniably, plea bargaining in criminal cases is an essential component of the administration of justice. An accused enters into a plea bargaining agreement by admitting his/her guilt with the hope of securing a more lenient punishment, and possibly probation, should the offer be accepted and approved by the court. As such, the tedious process and protracted trial is shortened and the accused is promptly given a chance at rehabilitation, redemption and reintegration to society. In the same way, plea bargaining benefits the State as the prosecution secures a final conviction with very minimal to nil use of its time and resources. Plea bargaining in criminal cases is clearly a procedural mechanism geared towards promoting an efficient, inexpensive and speedy disposition of cases.

A.M. No. 18-03-16-SC or the Plea
Bargaining Framework in Drugs

Cases issued by the Court takes
precedence over DOJ Circular No. 27
or any other similar issuance

With these salutary benefits of plea bargaining, the Court, in the exercise of its exclusive rule-making power, promulgated the Plea Bargaining Framework in Drugs Cases, which specifically prescribes the offenses under RA No. 9165 subject to plea bargaining and their corresponding acceptable, plea bargains.

This framework was drawn from the Court's wisdom, as the impartial tribunal in the equation of justice, and its objective assessment and evaluation of the middle ground between the right of the State to prosecute offenders of its laws, on the one hand, and, on the other, the rights of the accused to be presumed innocent until proven guilty.

To be sure, a pragmatic rationale for the plea bargaining mechanism is the Court's ongoing efforts to decongest the court dockets. As described by former Chief Justice Diosdado M. Peralta, the underlying objective of both the Court's pronouncement in Estipona and OCA Circular No. 90-2018 was precisely to ease the load of the dockets and the penal system. In elucidating on the reason behind the availability of Section 12 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) as an acceptable bargain for Section 5 (Sale, Trading, etc. of Dangerous Drugs: Metamphetamine hydrochloride or shabu), then Chief Justice Peralta explained:

It bears emphasis that the main reason of the Court in stating in OCA Circular No. 90-2018 dated April 10, 2018 that "plea bargaining is also not allowed under Section 5 (Sale, trading etc. of Dangerous Drugs) involving all other kinds of dangerous drugs, except shabu and marijuana" lies in the diminutive quantity of the dangerous drugs involved. Taking judicial notice of the volume and prevalence of cases involving the said two (2) dangerous drugs, as well as the recommendations of the officers of PJA, the Court is of the view that illegal sale of 0.01 gram to 0.99 of methamphetamine hydrochloride (shabu) is very light enough to be considered as necessarily included in the offense of violation of Section 12 (Possession of Equipment, Instrument, Apparatus and other Paraphernalia for Dangerous Drugs), while 1.00 gram and above is substantial enough to disallow plea bargaining. The Court holds the same view with respect to illegal sale of 0.01 gram to 9.99 grams of marijuana, which likewise suffices to be deemed necessarily included in the same offense of violation of the same Section 12 of R.A. No. 9165, while 10.00 grams and above is ample enough to disallow plea bargaining.^[82]

This judicial notice arose from the Court's observation of a plethora of acquittals that have been promulgated by the Court, especially in the recent years. In these exemplifying cases, persons charged with Section 5, Article II of RA No. 9165 were often apprehended and incarcerated for a measly amount of drugs between 0.01 gram to 0.99 gram in weight. More, these persons languished in jails for years, only to be acquitted upon appeal to the Supreme Court because the prosecution failed to strictly comply with the mandatory requirements of Section 21 of RA No. 9165.

What is, therefore, paramount to understand is the Court's wisdom arising from what it has seen in the drive against illegal drugs. That same wisdom dovetailed with the practical benefit of decongesting the court dockets. To restate, the Court, in its wisdom, promulgated OCA Circular No. 90-2018 which provides a one-to-one correspondence between the original offense charged, on the one hand, to the plea bargain offense, on the other. Illustratively, for a charge of Section 5, if the seized drug involved is between 0.01 gram to 0.99 gram, the Court finds the acceptable bargain to be a plea of guilty to a violation of Section 12 (illegal possession of drug paraphernalia) and not a plea to a violation of Section 11 (illegal possession of drugs).

Still and all, the Court, citing the Separate Opinion of Justice Marvic M. V. F. Leonen in Estipona, laid down in the case of Sayre the following:

It is lamentable that while our dockets are clogged with prosecutions under Republic Act No. 9165 involving small-time drug users and retailers, we are seriously short of prosecutions involving the proverbial "big fish." We are swamped with cases involving small fry who have been arrested for miniscule amounts. While they are certainly a bane to our society, small retailers are but low-lying fruits in an exceedingly vast network of drug cartels. Both law enforcers and prosecutors should realize that the more effective and efficient strategy is to focus resources more on the source and true leadership of these nefarious organizations. Otherwise, all these executive and judicial resources expended to attempt to convict an accused for 0.05 gram of shabu under doubtful custodial arrangements will hardly make a dent in the overall picture. It might in fact be distracting our law enforcers from their more challenging task: to uproot the causes of this drug menace. We stand ready to assess cases involving greater amounts of drugs and the leadership of these cartels.^[83]

To recall, the Court also made clear in Sayre that the framework pertaining to the plea bargaining process falls squarely and exclusively within the jurisdiction of the courts, and while the DOJ may affect the propositions within the same in its internal guidelines, the rule-making power of the Court in the plea bargaining process nevertheless takes precedence over any other issuance that pertains to it, viz.:

In this petition, A.M. No. 18-03-16-SC is a rule of procedure established pursuant to the rule-making power of the Supreme Court that serves as a framework and guide to the trial courts in plea bargaining violations of R.A. 9165.

Nonetheless, a plea bargain still requires mutual agreement of the parties and remains subject to the approval of the court. The acceptance of an offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the trial court.

Section 2, Rule 116 of the Rules of Court expressly states:

Sec 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. x x x

The use of the word "may" signifies that the trial court has discretion whether to allow the accused to make a plea of guilty to a lesser offense. Moreover, plea bargaining requires the consent of the accused, offended party, and the prosecutor. It is also essential that the lesser offense is necessarily included in the offense charged.

Taking into consideration the requirements in pleading guilty to a lesser offense, We find it proper to treat the refusal of the prosecution to adopt the acceptable plea bargain for the charge of Illegal Sale of Dangerous Drugs provided in A.M. No. 18-03-16-SC as a continuing objection that should be resolved by the RTC. This harmonizes the constitutional provision on the rule making power of the Court under the Constitution and the nature of plea bargaining in Dangerous Drugs cases. DOJ Circular No. 27 did not repeal, alter, or modify the Plea Bargaining Framework in A.M. No. 18-03-16-SC.^[84] (Emphasis supplied; citations omitted)

Furthermore, and lest it be mistaken, the exclusivity of the power to promulgate rules on plea bargaining only recognizes the role of the judiciary under our Constitutional framework as the impartial tribunals that try to balance the right of the State to prosecute offenders of its laws, on the one hand, and the right of individuals to be presumed innocent until proven guilty, on the other. This in no way undermines the prosecutorial power of the DOJ, which has the mandate to prosecute suspected criminals to the full extent of the law. In discharging this role, the prosecutor, representing one of the parties to the negotiation, cannot thus be expected to fully see the "middle ground." It is here where the courts are therefore in the best position to determine what is fair and reasonable under the circumstances. Ultimately, it is the Court which has the power to promulgate the rules on plea bargaining.

This much is affirmed by the issuance of the aforementioned DOJ Circular No. 18 dated May 10, 2022, which accordingly revised DOJ Circular No. 27 in order to conform the same to the Court's Plea Bargaining Framework in Drugs Cases.

Accordingly, while the Court in Sayre did not declare DOJ Circular No. 27 as unconstitutional, being a mere internal guideline that does not encroach upon the Court's rule-making power, the Court clarifies that any plea bargaining framework it promulgates is accorded primacy.

With these principles in mind, the Court shall now set forth the following guidelines in plea bargaining in drugs eases.

Plea bargaining requires the consent
of the parties but the approval thereof
is subject to the sound discretion of the
court

In defining plea bargaining in criminal cases, jurisprudence has always referred to it as a process of arriving at "a mutually satisfactory disposition of the case subject to court approval."^[85] Thus, mutual consent of the prosecution and the offended party, on the one hand, and the defendant, on the other has always been emphasized as a condition precedent or an indispensable requirement to a valid plea of guilty to a lesser offense.^[86]

This requirement of mutual consent was further highlighted in Sayre, where the Court found that the trial court judge did not act with grave abuse of discretion in not approving the plea bargain of the accused due to the continuing objection of the prosecution, which was based on the conflicting provisions between DOJ Circular No. 27 and the Plea Bargaining Framework in Drugs Cases. The Court held that "[b]ecause of this continuing objection the parties failed to arrive at a 'mutually satisfactory disposition of the case' that may be submitted for the [trial] court's approval. The RTC correctly ordered the continuation of the proceedings because there was no mutual agreement to plea bargain."^[87]

As well, in the recent cases of Reafor and Borras, the Court, reiterating Sayre, remanded the cases for further proceedings because the parties failed to strike a mutual agreement on the matter. In both cases, similar to the present consolidated cases, the prosecution objected to the accused's respective plea bargaining proposals on the basis of the provisions of DOJ Circular Nos. 61 and 27. The trial courts, without resolving the prosecution's continuing objection, immediately convicted the accused under their respective pleas following the Court's Plea Bargaining Framework in Drugs Cases. The Court found that the trial courts acted with grave abuse of discretion and remanded the cases for further proceedings.

To recall, in A.M. No. 21-07-16-SC, the PJA expressed concern that the ruling in Reafor and Borras will render the Court's Plea Bargaining Framework in Drugs Cases a dead-letter rule because it practically obliterates plea bargaining in illegal drugs cases which was allowed and recognized in Estipona.

Again, as discussed, considering the amendments introduced under DOJ Circular No. 18, the issue on the conflicting provisions between DOJ Circular No. 27 and the Court's Plea Bargaining Framework in Drugs Cases insofar as Section 5 of RA No. 9165 is concerned has already been rendered moot and academic.

Nonetheless, to reconcile the perceived competing views and interpretations of these pronouncements in Sayre and in the more recent cases of Reafor and Borras, there is a need to clarify the prevailing rule and exception in plea bargaining in drugs cases.

Plea bargaining in criminal cases is governed by Section 2 Rule 116 of the Rules of Court, which provides:

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. (Emphasis supplied)

Indeed, Section 2 requires the mutuality of agreement of the parties because consent of the prosecution and the offended party must be obtained in order for the accused to successfully plead guilty to a lesser offense. However, it should not be overlooked that Section 2 also uses the word "may," which signifies discretion on the part of the trial court on whether to allow the accused to make such plea.^[88] As such, while plea bargaining requires the consent of the parties, the approval of a plea bargaining proposal is ultimately subject to the sound discretion of the court.

To be sure, jurisprudence had since emphasized the extent of the trial court's discretion in approving a plea bargain.

In the case of People v. Villarama, Jr.^[89] (Villarama), while it was expressed that the consent of the Fiscal and the offended party is a condition precedent for a valid plea of guilty to a lesser offense because "[t]he Fiscal has full control of the prosecution of criminal actions,"^[90] the Court also underscored that acceptance of an offer to plead guilty to a lesser offense is a matter addressed entirely to the sound discretion of the trial court. Underscoring the trial court's duty to review the circumstances of a case before it may act on an application to plea bargain, the Court held:

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).

In the case at bar, the private respondent (accused) moved to plead guilty to a lesser offense after the prosecution had already rested its case. In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor with a yardstick within which their discretion may be properly exercised. Thus, in People v. Kayanan (L-39355, May 31, 1978, 83 SCRA 437, 450), We held that the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. In his concurring opinion in People v. Parohinog, (G.R. No. L-47462, February 28, 1980, 96 SCRA 373, 377), then Justice Antonio Barredo explained clearly and tersely the rationale o[f] the law:

x x x (A)fter the prosecution had already rested, the only basis on which the fiscal and the court could rightfully act in allowing the appellant to change his former plea of not guilty to murder to guilty to the lesser crime of homicide could be nothing more nothing less than the evidence already in the record. The reason for this being that Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser offense is allowed was not and could not have been intended as a procedure for compromise, much less bargaining.

As evident from the foregoing, the trial court need not wait for a guideline from the Office of the Prosecutor before it could act on the accused's motion to change plea. As soon as the fiscal has submitted his comment whether for or against the said motion, it behooves the trial court to assiduously study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea to the end that the interests of justice and of the public will be served. A reading of the disputed rulings in this case failed to disclose the strength or weakness of the prosecution's evidence. Apparently, the judgment under review dwelt solely on only one of the three objections (i.e. waste of valuable time already spent by the court and prosecution) interposed by the Fiscal which was the least persuasive. It must be recalled that the other two grounds of objection were that the prosecution had already rested its case and that the possibility of conviction of the private respondent of the crime originally charged was high because of the strong evidence of the prosecution. Absent any finding on the weight of the evidence in hand, the respondent judge's acceptance of the private respondent's change of plea is improper and irregular.^[91] (Emphasis and italics supplied)

Villarama involved a plea bargaining proposal after the prosecution had rested its case. As regards plea bargaining during the pre-trial stage, the same remains subject to the discretion of the trial court. And the Court in the case of Daan v. Sandiganbayan,^[92] explained that the exercise of the trial court's discretion must not be arbitrary nor should it amount to a capricious and whimsical exercise of discretion. The trial court's action on the plea bargaining proposal must be supported by valid reasons.^[93]

Harmonizing the foregoing rulings, the Court, in Estipona, stressed anew the rule that plea bargaining requires mutual consent of the parties and remains subject to the sound of discretion of the court, viz.:

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. 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.

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the prosecution already rested its case. As regards plea bargaining during the pre-trial stage, the trial court's exercise of discretion should not amount to a grave abuse thereof. "Grave abuse of discretion" 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 perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility; it arises when a court or tribunal violates the Constitution, the law or existing jurisprudence.

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution rested its case, the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. The only basis on which the prosecutor and the court could rightfully act in allowing change in the former plea of not guilty could be nothing more and nothing less than the evidence on record. As soon as the prosecutor has submitted a comment whether for or against said motion, it behooves the trial court to assiduously study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea to the end that the interests of justice and of the public will be served. The ruling on the motion must disclose the strength or weakness of the prosecution's evidence. Absent any finding on the weight of the evidence on hand, the judge's acceptance of the defendant's change of plea is improper and irregular.^[94] (Emphasis and underscoring supplied; citations omitted)

As can be gleaned from the foregoing, the trial court's discretion to act on plea bargaining proposal is independent from the requirement of mutual agreement of the parties. Whether the prosecution is for or against the accused's proposal to plead guilty to a lesser offense, the trial court remains duty-bound to assiduously evaluate the qualifications of the accused and the circumstances of the case.

The breadth of judicial discretion in approving a plea bargain, particularly in relation to offenses under RA No. 9165, was further elaborated upon in the Court En Banc's Resolution dated April 2, 2019 entitled Re: Letter of Associate Justice [(now retired Chief Justice)] Diosdado M. Peralta on the Suggested Plea Bargaining Framework Submitted by the Philippine Judges Association. The Resolution addressed, among others, the apparent conflict between the trial court's discretion to allow plea bargaining under the guidelines of the Plea Bargaining Framework in Drugs Cases and the prosecution's objection thereto following DOJ Circular No. 27, to wit:

The Court takes exception to the claim that allowance of plea bargaining over the objection of the prosecution, "is alarming and a direct affront to the government's intensified campaign against the 'menace of illegal drugs' under President Rodrigo Roa Duterte because the courts concerned have, in effect, degraded the penalties provided by R.A. 9165 — particularly for violation of Section 5, Article II thereof — since the accused are allowed to plead guilty to violation of Section 12 only where the penalty is minimal and probationable. Section 5, Article II, of R.A. 9165 is being defanged/rendered toothless and the accused are merely given a 'slap-on-the-wrist' by the courts concerned. And, the efforts of the police and the Prosecution will be gone to waste."

The Court explained in Estipona that it is towards the provision of a simplified and inexpensive procedure for the speedy disposition of cases in all courts that the rules on plea bargaining was introduced. x x x

x x x x

Significantly, plea bargaining is always addressed to the sound discretion of the judge, guided by 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 judges 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, and they cannot just defer to the policy of another Branch of the 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 known in the community as a drug addict and a troublemaker, or one who has undergone 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 enter 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.^[95] (Emphasis and underscoring supplied)

Synthesizing the foregoing jurisprudential pronouncements, and cognizant of the ends of the plea bargaining process in drugs cases, the Court herein clarifies that the consent of the parties is necessary but the approval of the accused's plea of guilty to a lesser offense is ultimately subject to the sound discretion of the court. In the exercise of this discretion, the trial court's duty is to evaluate the qualifications of the accused and the circumstances or evidence of the case. It is mandated to decide each case based on evidence, law, and jurisprudence, and to ensure that the applicant in a plea bargain is not: (1) a recidivist, (2) habitual offender, (3) known in the community as a drug addict and troublemaker, (4) one who has undergone rehabilitation but had a relapse, and (5) one who has been charged many times. Thus, plea bargaining cannot be approved when the accused is not qualified or the evidence of his/her guilt is strong.

Clearly, trial courts are in the best position to objectively and disinterestedly assess whether the facts, the evidence, and the circumstances of the accused necessitate a plea bargaining agreement. As impartial tribunals, courts are in the best position to ultimately determine the propriety of plea bargaining in each case.

In this regard, courts are not bound by any resolution or administrative issuance that the Secretary of Justice may promulgate. It is within the sole ambit of the Court's discretion to impose rules governing the proceedings — including the Plea Bargaining Framework in Drugs Cases. Thus, courts may overrule the objection of the prosecution when the objection has no valid basis, or is not supported by evidence, or if the objection solely tends to undermine the Court's plea bargaining framework, or that the objection is solely to the effect that it will weaken the drugs campaign of the government. To narrowly construe the trial court's discretion under Section 2, Rule 116 of the Rules of Court is to undermine the value of plea bargaining itself and render it an ineffective tool of rehabilitation and restorative justice.

Moreover, plea bargaining is a mechanism that becomes available to the accused only after the Information is filed. Well-settled is the rule in our jurisdiction that once the Information is filed in court, any disposition of the case rests upon the sound discretion of the court. Indeed, the Court has held:

Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court[,] he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence.^[96]

During the deliberations for this case, it was raised that the trial court cannot overrule the objection of the prosecution to the plea bargaining proposal since mutual consent is a condition sine qua non before the trial court may exercise its authority over a plea bargain. It was suggested that for the courts to overrule the prosecution's objection, especially if the objection is grounded on an Executive issuance or policy, would be an impermissible overreach into a matter supposedly within the sole prerogative of the Executive and thus, violative of the principle of separation of powers.^[97]

However, it must be noted with import that the exclusive prerogative of the Executive begins and ends with matters involving purely prosecutorial discretion. Prosecutorial discretion pertains to who to prosecute, what case to prosecute, and how the case would be pursued based on the evidence available to the prosecution. The prosecution has the freedom and authority to determine whether to charge a person, what Information to file against them and how to prosecute the case filed before the courts. There is, however, an obvious limit to prosecutorial prerogatives as the prosecutor obviously has no control over how the court would decide the case. While a prosecutor may look at the evidence and determine the charge and that a person is probably guilty of the same, a judge may look at the same set of evidence and arrive at a different conclusion.

This dividing line between prosecutorial prerogatives and judicial discretion is why courts may overrule objections on plea bargaining on certain grounds. The prosecution's objection may be based on anything under the sun. If an objection is anchored on what is exclusively a prosecutorial prerogative, it would indeed be a violation of the separation of powers for a court to override the prosecutor's objection. If, however, the objection is based on a supposed "internal guideline" of the Executive that directly runs counter to a Court issuance promulgated within the exclusive domain of the Judiciary — such as the Plea Bargaining Framework — then it is not a violation, but rather a mere assertion, of the principle of separation of powers. In other words, as any motion submitted for the court's resolution, if the prosecution's basis for objection has no merit or runs afoul of the Constitutional prerogative exclusive to the court, then it is not unconstitutional for a court to assert by ruling that such objection is invalid.

It must be clarified that courts are not given the unbridled discretion to overrule any objection of the prosecution to a plea bargaining proposal. To be sure, the authority of the court over plea bargaining in drugs cases is circumscribed foremost by the Court-issued framework on the acceptable plea bargains and by the evidence and circumstances of each case. Thus, a court has no jurisdiction to overrule an objection of the prosecution if the same is grounded on evidence showing that the accused is not qualified therefor, or when the plea does not conform to the Court-issued rule or framework.

However, when a court overrules a prosecution's objection, which is solely grounded on an Executive issuance or policy that contradicts a Court-issued rule on plea bargaining, it is not an intrusion into the Executive's authority and discretion to prosecute crimes, but is simply a recognition of the Court's exclusive rule-making power as enshrined in the Constitution.

It bears to emphasize that when the Court upholds its exclusive power to promulgate rules on plea bargaining, it only recognizes the role of the Judiciary as impartial tribunals, with the mandate of determining what is fair and reasonable under the circumstances, cognizant of the rights and interests of both the State and the accused. In contrast, the prosecutor's mandate is to champion the cause of the State and prosecute criminals to the full extent of the law, which may prevent it from fully seeing the middle ground in the plea bargaining process. This is the reason why it is ultimately the Court which has the power to promulgate the rules on plea bargaining. This is the reason behind Estipona.

For if the courts were to simply concede to the prosecution's policy or issuance, even if the same subverts and negates Court-issued rules — then this effectively amounts to the Court giving undue deference to the prosecutorial arm, instead of upholding the rationale of the plea bargaining process as a middle ground between the prosecution and the accused. It also necessarily means that the Court is relinquishing its exclusive Constitutional authority and effectively becomes complicit to a violation of the constitutional principle of separation of powers.

Plea Bargaining in criminal
cases and the principle of
mutual consent

At this juncture, it is also crucial to clarify that the phrase "mutually satisfactory disposition of the case"^[98] repeatedly used in jurisprudence in defining plea bargaining in criminal cases is not synonymous with the principle of mutuality or consensuality of contracts. The primordial considerations in plea bargaining are the State's mandate to prosecute crimes and the protection of the rights of the accused. Mutuality, in the perspective of plea bargaining, is merely descriptive of the convergence of the interest of the parties and should not be understood to prevent or restrict the exercise of the trial court's discretion in relation to the Court's rule-making power. It should not bar the trial court from overruling a blanket objection or an outright rejection of a proposal to plea bargain, on the ground only that it does not conform with internal rules or guidelines of the DOJ, without any consideration of the factors enumerated in the plea bargaining framework issued by the Court, if any. To permit such blanket objection or outright rejection undermines the authority of the Court to exercise its rule-making power.

Neither is plea bargaining, as a conceptually exceptional remedy akin to a compromise agreement in civil cases, which indispensably requires the consent of the parties. In stark contrast to a compromise agreement in civil cases, where the parties' discretion as to the terms of their agreement is close to limitless, considerations in a plea bargaining agreement are finite. This is because, fundamentally, criminal liability is not subject to compromise. As such, the prosecution and the accused cannot agree on pleading guilty to a lesser offense if it is not necessarily included in the offense charged, or that plea bargaining is not allowed when evidence of guilt against the accused is strong or that the accused is a recidivist, habitual delinquent, etc.

Again, to emphasize, plea bargaining is a mechanism in criminal procedure geared towards achieving an efficient, speedy and inexpensive disposition of a case. It enables the prosecution and the defense to mitigate the offense charged in exchange of a plea of guilty that is enforceable only if approved by the court. Under this mechanism, the accused is permitted to plead guilty to a lesser offense that is equivalent to a judicial admission while the prosecution obtains a final judgment of conviction without proof. To ensure that the ends of plea bargaining are achieved, the trial court independently assesses the merits of the plea bargaining proposal of the accused. Therefore, the approval or denial of the plea bargaining, regardless of the mutual consent of the parties, is strictly within the sole power and discretion of the court.

Applying the foregoing principles to the case of Baldadera, the RTC should not have hastily approved his plea bargaining proposal. Instead, the RTC should have determined (1) whether the evidence of guilt is strong; and (2) whether Baldadera is a recidivist, habitual offender, is known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times. The presence of any of these circumstances would bar him from availing of the benefits of entering into a plea bargain with the State.

Similarly, in the case of Montierro, the RTC should have resolved the plea bargaining proposal by making an independent determination, based on the circumstances of the accused, whether he is qualified to avail of its benefits. The RTC should not have hastily rendered a guilty verdict based on the proposal to plea bargain without resolving the objection of the prosecution.

Given the foregoing, the Court deems it proper to remand the cases to the court of origin to afford the latter an opportunity to ascertain, based on the guidelines set forth herein, whether Baldadera and Montierro are qualified to avail of the benefits of plea bargaining.

Additionally, in A.M. No. 18-03-16-SC, it is provided that:

In all instances, whether or not the maximum period of the penalty imposed is already served, drug dependency test shall be required. If accused admits drug use, or denies it but is found positive after drug dependency test, he/she shall undergo treatment and rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her penalty and the period of his/her after-care and follow-up program if penalty is still unserved. If accused is found negative for drug use/dependency, he/she will be released on time served, otherwise, he will serve his sentence in jail minus the counselling period at rehabilitation center. However, if accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof, then the law on probation shall apply.^[99]

Thus, the RTC is directed to order Baldadera and Montierro to undergo a drug dependency test as one of the requirements to avail themselves of the plea bargaining mechanism.

To summarize the foregoing discussion, the following guidelines shall be observed in plea bargaining in drugs cases:

1. Offers for plea bargaining must be initiated in writing by way of a formal written motion filed by the accused in court.
   
   
2. The lesser offense which the accused proposes to plead guilty to must necessarily be included in the offense charged.
   
   
3. Upon receipt of the proposal for plea bargaining that is compliant with the provisions of the Plea Bargaining Framework in Drugs Cases, the judge shall order that a drug dependency assessment be administered. If the accused admits drug use, or denies it but is found positive after a drug dependency test, then he/she shall undergo treatment and rehabilitation for a period of not less than six (6) months. Said period shall be credited to his/her penalty and the period of his/her after-care and follow-up program if the penalty is still unserved. If the accused is found negative for drug use/dependency, then he/she will be released on time served, otherwise, he/she will serve his/her sentence in jail minus the counselling period at rehabilitation center.
   
   
4. As a rule, plea bargaining requires the mutual agreement of the parties and remains subject to the approval of the court. Regardless of the mutual agreement of the parties, the acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the court.
   

   1. Though the prosecution and the defense may agree to enter into a plea bargain, it does not follow that the courts will automatically approve the proposal. Judges must still exercise sound discretion in granting or denying plea bargaining, taking into account the relevant circumstances, including the character of the accused.
      

5. The court shall not allow plea bargaining if the objection to the plea bargaining is valid and supported by evidence to the effect that:
   

   1. the offender is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times; or
      
      
   2. when the evidence of guilt is strong.
      

6. Plea bargaining in drugs cases shall not be allowed when the proposed plea bargain does not conform to the Court-issued Plea Bargaining Framework in Drugs Cases.
   
   
7. Judges may overrule the objection of the prosecution if it is based solely on the ground that the accused's plea bargaining proposal is inconsistent with the acceptable plea bargain under any internal rules or guidelines of the DOJ, though in accordance with the plea bargaining framework issued by the Court, if any.
   
   
8. If the prosecution objects to the accused's plea bargaining proposal due to the circumstances enumerated in item no. 5, the trial court is mandated to hear the prosecution's objection and rule on the merits thereof. If the trial court finds the objection meritorious, it shall order the continuation of the criminal proceedings.
   
   
9. If an accused applies for probation in offenses punishable under RA No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Section 24 thereof, then the law on probation shall apply.

WHEREFORE, the Decision dated July 1, 2020 and the Resolution dated November 26, 2020 of the Court of Appeals in CA-G.R. SP No. 158032 and the Decision dated February 27, 2020 and Resolution dated October 27, 2020 of the Court of Appeals in CA-G.R. SP No. 158301 are SET ASIDE.

The respective cases of Cypher Baldadera y Pelagio and Erick Montierro y Ventocilla are REMANDED to the court of origin to determine: (1) whether the evidence of guilt is strong; and (2) whether Baldadera and Montierro are recidivists, habitual offenders, known in the community as drug addicts and troublemakers, have undergone rehabilitation but had a relapse, or have been charged many times.

Furthermore, Baldadera and Montierro are ORDERED to submit to a drug dependency test pursuant to A.M. No. 18-03-16-SC.

The letter dated July 5, 2021 of the Philippine Judges Association and the memorandum dated October 8, 2021 from the Court Administrator are hereby NOTED.

Let copies of this Decision be furnished the Office of the Solicitor General, the Office of the Secretary of Justice, the Office of the Prosecutor General, the Public Attorney's Office, the Integrated Bar of the Philippines and the Office of the Court Administrator for their guidance and information.

SO ORDERED.

Gesmundo, C.J., Hernando, Inting, Zalameda, M. Lopez, Gaerlan, Rosario, J. Lopez, Dimaampao, and Marquez,  JJ., concur.
Leonen, SAJ., I concur in the result. See separate opinion.
Lazaro-Javier, J., See concurrence and dissent.
Kho, Jr., J., See separate concurring and dissenting opinion.

Singh, J., See concurring and dissenting opinion.

---

^[1] Rollo (G.R. No. 254564), pp. 9-36 and rollo (G.R. No. 254974), pp. 11-34.

^[2] Rollo (G.R. No. 254564), pp. 37-45. Penned by Associate Justice Germano Francisco D. Legaspi, with Associate Justices Franchito N. Diamante and Walter S. Ong concurring.

^[3] Id. at 47-48.

^[4] Rollo (G.R. No. 254974), pp. 36-50. Penned by Associate Justice Ramon M. Bato, Jr., with Associate Justices Zenaida T. Galapate-Laguilles and Florencio M. Mamauag, Jr. concurring.

^[5] Id. at 52-53.

^[6] Rollo (A.M. No. 21-07-16-SC), pp. 1-5.

^[7] Rollo (A.M. No. 18-03-16-SC), pp. 152-154.

^[8] G.R. No. 247575, November 16, 2020, accessed at <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/67092>.

^[9] G.R. No. 250295, March 15, 2021, accessed at <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66974>.

^[10] AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES, otherwise known as the "COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002," approved on June 7, 2002.

^[11] Rollo (G.R. No. 254974), p. 37.

^[12] Rollo (G.R. No. 254564), p. 104.

^[13] Id. at 50-53; rollo (G.R. No. 254974), pp. 92-96

^[14] 816 Phil. 789 (2017).

^[15] Id.; Constitution, Art. VIII, Sec. 5(5) 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.

^[16] GUIDELINES ON PLEA BARGAINING AGREEMENT FOR R.A. NO. 9165 OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF [2002]."

^[17] ADOPTION OF THE PLEA BARGAINING FRAMEWORK IN DRUGS CASES, dated April 10, 2018

^[18] AMENDED GUIDELINES ON PLEA BARGAINING FOR REPUBLIC ACT NO. 9165 OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002," dated June 26, 2018.

^[19] Rollo (G.R. No. 254564), p. 54

^[20] Id.

^[21] Id. at 55-56.

^[22] Id. at 69-72. Penned by Judge Leo L. Intia.

^[23] Id. at 70-71.

^[24] See Order dated July 11, 2018 id. at 73-74.

^[25] Id.

^[26] Id. at 74.

^[27] Motion for Reconsideration dated July 30, 2018, id. at 77-79.

^[28] Sec. 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.

^[29] Id.

^[30] Id. at 39.

^[31] Id. at 82-83. Penned by Acting Presiding Judge Leo L. Intia

^[32] RA 9165, Sec. 12 provides:

xxxx
The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act.

^[33] Id.

^[34] Id. at 37-45.

^[35] Id. at 42.

^[36] Id. at 42-44.

^[37] Id. at 44.

^[38] Id. at 43.

^[39] Id. at 47-48.

^[40] Id. at 9-36.

^[41] Rollo (G.R. No. 254974), pp. 78-79.

^[42] Id. at 74.

^[43] Id. at 74-77.

^[44] Id. at 76-77.

^[45] Id. at 82.

^[46] Motion for Reconsideration dated August 2, 2018, id. at 87-89.

^[47] Id. at 80-86.

^[48] Id.

^[49] Judgment dated August 23, 2018, id. at 90-91. Penned by Acting Presiding Judge Leo L. Intia.

^[50] Id

^[51] Id. at 36-50.

^[52] Id. at 49.

^[53] Id. at 45-46.

^[54] Id. at 47.

^[55] Id. at 47-49.

^[56] Id. at 52-53.

^[57] Id. at 11-34.

^[58] Rollo (G.R. No. 254564), pp. 17-19

^[59] Id. at 18.

^[60] Id. at 30.

^[61] Id. at 19.

^[62] Id. at 19-24.

^[63] Rollo (G.R. No. 254974), p. 19.

^[64] Id.

^[65] Id. at 22.

^[66] Id. at 25-26.

^[67] Rollo (A.M. No. 21-07-16-SC), p. 1.

^[68] Id. at 2-3.

^[69] Id. at 3.

^[70] Rollo (G.R. No. 254564), pp. 141-142.

^[71] Rollo (A.M. No. 18-03-16-SC), pp. 155-156.

^[72] Id. at 152-154.

^[73] REVISED AMENDED GUIDELINES ON PLEA BARGAINING FOR REPUBLIC ACT NO. 9165 OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002."

^[74] International Service for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), 791 Phil. 243, 259 (2016).

^[75] 361 Phil. 73 (1999).

^[76] Id. at 88-89.

^[77] G.R. Nos. 234359 & 234484, April 3, 2018. (Unsigned Resolution)

^[78] Id.

^[79] G.R. Nos. 244413, 244415-16, February 18, 2020, accessed at <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66133>.

^[80] Estipona, Jr. v. Lobrigo, supra note 14, at 806-808.

^[81] Id. at 812-813.

^[82] Re: Letter of Associate Justice [(now retired Chief Justice)] Diosdado M. Peralta on the Suggested Plea Bargaining Framework Submitted by the Philippine Judges Association, A.M. No. 18-03-16-SC, April 2, 2019.

^[83] Separate Opinion of Associate Justice Marvic M.V.F. Leonen in Estipona, Jr. v. Lobrigo, supra note 14, at 819.

^[84] Sayre v. Xenos, supra note 79.

^[85] See People v. Villarama, Jr., 285 Phil. 723, 730 (1992); People v. Reafor, supra note 8; Gonzales III v. Office of the President of the Phils., 694 Phil. 52, 106 (2012).

^[86] Id. at 732.

^[87] Sayre v. Xenos, supra note 79.

^[88] See Daan v. Sandiganbayan, 573 Phil. 368, 376-377 (2008).

^[89] Supra note 85.

^[90] Id. at 732.

^[91] Id. at 730-731.

^[92] Supra note 88.

^[93] Id. at 378.

^[94] Estipona, Jr. v. Lobrigo, supra note 14, at 814-817.

^[95] Re: Letter of Associate Justice [(now retired Chief Justice)] Diosdado M. Peralta on the Suggested Plea Bargaining Framework Submitted by the Philippine Judges Association, supra note 82.

^[96] Crespo v. Mogul, 235 Phil. 465, 476 (1987).

^[97] See Separate Concurring Opinion of Senior Associate Justice Marvic M.V.F. Leonen, pp. 4-5- and Concurring and Dissenting Opinion of Associate Justice Maria Filomena D. Singh, pp. 3-8.

^[98] See People v. Villarama, Jr., supra note 85; People v. Reafor, supra note 8; Gonzales III v. Office of the President of the Phils., supra note 85.

^[99] Re: Adoption of Plea Bargaining Framework in Drug Cases, A.M. No. 18-03-16-SC, June 4, 2019.

---

SEPARATE CONCURRING OPINION

LEONEN, J.:

While I concur with the ponencia in setting aside the judgments of conviction and remanding the cases to the courts of origin, I humbly disagree with the reasons set forth. I offer the following views and observations.

I
Article VII, Section 17 of the Constitution tasks the President with the right and duty to ensure the faithful execution of laws.^[1] An integral part of this mandate is the prosecution of criminal violators through the prosecutor, who represents the Executive department in the prosecution of criminal cases.

On the other hand, judicial power involves the duty to settle actual controversies and determine whether any branch or instrumentality of the State has acted with grave abuse of discretion.^[2] Concomitant to the judicial power is the power to promulgate rules, as provided in Article VIII, Section 5(5) of the Constitution, which reads:

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.

Plea bargaining is a rule of procedure which falls within this Court's exclusive rule-making power. It is the process where both the accused and the prosecution agree to "a mutually satisfactory disposition of the case subject to court approval."^[3] The plea bargaining process is provided for in Rule 116, Section 2 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.

Rule 118, Section 1(a) of the Rules of Court also mandates the courts to consider plea bargaining during pre-trial:

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 Court, 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 pre­trial conference to consider the following:

(a)	plea bargaining;
(b)	stipulation of facts;
(c)	marking for identification of evidence of the parties;
(d)	waiver of objections to admissibility of evidence;
(e)	modification of the order of trial if the accused admits the charge but interposes a lawful defense; and
(f)	such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Emphasis supplied)

While it is part of criminal procedure, the plea bargaining process requires the participation of two different branches of government, particularly the Judiciary and the Executive. The prosecutor represents the State in prosecuting the criminal case, while the trial court conducts the criminal proceedings. Considering the different functions involved, it is imperative to delineate the powers that each branch may exercise in the plea bargaining process to prevent a violation of the doctrine of separation of powers.

The power to prosecute exclusively lies with the prosecutor who possesses a wide discretion as regards "whether, what[,] and whom to charge"^[4] in recognition of the myriad of factors to consider when pursuing a criminal case.^[5] Jurisdiction over a criminal case is transferred to the court once the prosecutor files the information with the trial court. However, court action generally only pertains to the remedial measures that may crop up during the course of the trial.^[6] The prosecutor, as the State's representative, still directly steers the criminal case since "[a]ll criminal actions commenced by a complaint or by information shall be prosecuted under the direction and control of a public prosecutor."^[7]

In turn, the trial court ensures that the plea bargain agreed upon by the parties conforms with the rules and guidelines issued by the Court. Hence, the substantive aspect of the plea bargaining process (i.e., whether the accused will offer a plea bargain and whether the prosecutor will accept) is outside of the trial court's mandate as this no longer pertains to the procedural aspect.

It should be noted that the Rules of Court does not direct the prosecutor to consent to a plea deal. Instead, it tasks the courts to exercise its discretion after the prosecution assents to the offered plea.^[8] Nothing in the provision implies that the court can override the mutual agreement of the parties or the lack thereof, in case the prosecutor does not agree with the proposed plea bargain. The court can only facilitate and ensure that all legal requirements have been met, as was pointed out in a separate opinion in Sayre v. Xenos:^[9]

A plain reading of [Rule 116, Section 2 of the Rules of Court] shows only one (1) part of the plea bargaining process: the plea of the lesser offense before the court. This presupposes that the courts only participate in the plea bargaining process once the accused has presented [their] offer and the prosecution and the private offended party has consented to the offer.

....

The mandate to consider plea bargaining after arraignment does not necessarily mean that the accused must always plead guilty to the lesser offense in all criminal cases. It simply means that if the accused and the prosecution come to court with a plea bargain deal during pre-trial, the court must consider the plea bargain deal.

There is, thus, a part of the plea bargaining process that is solely within the realm of prosecutorial discretion.^[10] (Emphasis supplied)

This is a tacit recognition of the separation of powers between the Executive and the Judiciary.

Estipona v. Lobrigo,^[11] which categorically stated that plea bargaining "as a rule and a practice"^[12] has always been a part of our rules of procedure, likewise emphasized judicial deference of prosecutorial discretion in the plea bargaining process:

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."^[13] (Citations omitted)

Clearly then, a plea bargain requires the mutual agreement of the accused, offended party, and prosecutor, as well as the court's approval of the agreement. Hence, the court cannot approve a plea bargain despite the prosecutor's continuing objection because this would encroach upon the separation of powers between the Judiciary and the Executive.

Courts likewise cannot disregard the prosecutor's objection to a plea bargain based on the ground that it does not meet the Executive's framework in drugs cases. The establishment of an Executive framework in drugs cases, as a response to the government's war against drugs, is well-within the Executive's right to prosecute criminal violators and cannot be seen as a whimsical and capricious act which can be struck down.

To reiterate, the court's authority over the plea bargaining process is limited to the procedural aspect. The court's consent comes into play only after the parties have come to a mutual agreement on the proffered plea bargain. Its consent is not needed to validate the plea bargain reached; instead, the court is merely tasked to ensure that all legal requirements were met, with the parties' mutual agreement. Enlarging the court's authority under the guise of its rule-making power to also include the power to overrule the prosecution's objection to the proposed plea bargain is tantamount to a violation of the doctrine of separation of powers.

II
I concur with the ponencia's observation^[14] that the issuance of Department of Justice (DOJ) Circular No. 18 on May 10, 2022 which amended DOJ Circular No. 27 issued in 2018, has rendered the prosecution's continuing objections to Erick Montierro and Cypher Baldadera's plea bargaining proposals moot. The plea bargaining proposals of both accused were based solely on the DOJ Circular No. 27 Nonetheless as the case is capable of repetition since the Department of Justice might revert to its DOJ Circular No. 27 or issue something similar in the future, this case falls under the recognized exceptions^[15] to the general rule that the Court cannot take cognizance of a case that has become moot. Resolving the will likewise address the issues raised by the Philippine Judges Association.

Further, the withdrawal of the prosecution's continuing objection based on DOJ Circular No. 27 does not necessarily mean that the prosecution automatically agrees to the accused's original proposed plea bargain deal, as there might still be other grounds for the prosecution to reject the proposal, or the prosecution might present a counter-proposal. Thus, there is a need to remand the cases to their respective courts of origin to determine if the parties are indeed inclined to enter into a plea bargaining agreement.

ACCORDINGLY, I vote that the July 1, 2020 Decision and November 26, 2020 Resolution of the Court of Appeals in CA-G.R. SP No. 158032, as well as the February 27, 2020 Decision and October 7, 2020 Resolution of the Court of Appeals in CA-G.R. SP No. 158301 be SET ASIDE.

Further, I also vote that the respective cases of Erick Montierro y Ventocilla and Cypher Baldadera y Pelagio be REMANDED to the courts of origin to determine if the parties intend to enter into a plea bargain.

---

^[1] Article VII, Section 17 of the Constitution states: The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

^[2] CONST., art. VIII, sec 1.

^[3] People v. Villarama, Jr., 285 Phil. 723, 730 (1992) [Per J. Medialdea, First Division] citing Black's Law Dictionary, 5^th Ed. (1979), p. 1037.

^[4] Webb v. De Leon, 317 Phil 758, 800 (1995) [Per. J. Puno, Second Division].

^[5] Id.

^[6] Rural Bank of Mabitac, Laguna, Inc. v. Canicon, 834 Phil. 346, 365 (2018) [Per J. Jardeleza, First Division].

^[7] RULES OF COURT, Rule 110, sec. 5, as amended by A.M. No. 02-02-07-SC.

^[8] J. Leonen, Concurring Opinion in Sayre v. Xenos, G.R. No. 244413, February 18, 2020, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66133> [Per J. Carandang, En Banc].

^[9] G.R. No. 244413, February 18, 2020, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66133> [Per J. Carandang, En Banc].

^[10] J. Leonen, Concurring Opinion in Sayre v. Xenos, G.R. No. 244413, February 18, 2020, < https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66133> [Per J. Carandang, En Banc].

^[11] 816 Phil 789 (2017) [Per J. Peralta, En Banc].

^[12] Id. at 806.

^[13] Id. at 814-815.

^[14] Ponencia, pp. 10-11.

^[15] Republic v. Moldex Realty, Inc., 780 Phil 553, 561 (2016) [Per J. Leonen, Second Division].

---

CONCURRENCE AND DISSENT

LAZARO-JAVIER, J:

The Majority laid down the following Bench-and-Bar practice direction on plea bargaining:

1. Offers for plea bargaining must be initiated in writing by way of a formal written motion filed by the accused in court.

2. The lesser offense which the accused proposes to plead guilty to must necessarily be included in the offense charged.

3. In particular application to cases involving dangerous drugs, upon receipt of the proposal for plea bargaining that is compliant with the provisions of the Plea Bargaining Framework in Drugs Cases, the judge shall order that a drug dependency assessment be administered. If the accused admits drug use, or denies it but is found positive after a drug dependency test, then he/she shall undergo treatment and rehabilitation for a period of not less than six (6) months. Said period shall be credited to his/her penalty and the period of his/her after-care and follow-up program if the penalty is still unserved. If the accused is found negative for drug use/dependency, then he/she will be released on time served, otherwise, he/she will serve his/her sentence in jail minus the counselling period at rehabilitation center.

4. As a rule, plea bargaining requires the mutual agreement of the parties and remains subject to the approval of the court. Regardless of the mutual agreement of the parties, the acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the court.

a. Though the prosecution and the defense may agree to enter into a plea bargain, it does not follow that the courts will automatically approve the proposal. Judges must still exercise sound discretion in granting or denying plea bargaining, taking into account the relevant circumstances, including the character of the accused.

5. The court shall not allow plea bargaining if the objection to the plea bargaining is valid and supported by evidence to the effect that:

a. the offender is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times; or

b. when the evidence of guilt is strong.

6. Plea bargaining in drugs cases shall not be allowed when the proposed plea bargain does not conform with the Court-issued Plea Bargaining Framework in Drugs Cases.

7. Judges may overrule the objection of the prosecution if it is based solely on the ground that the accused's plea bargaining proposal is inconsistent with the acceptable plea bargain under any internal rules or guidelines of the Department of Justice (DOJ), though in accordance with the plea bargaining framework issued by the Court, if any.

8. If the prosecution objects to the accused's plea bargaining proposal due to the circumstances enumerated in item no. 5, the trial court is mandated to hear the prosecution's objection and rule on the merits thereof. If the trial court finds the objection meritorious, it shall order the continuation of the criminal proceedings.

9. If an accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof, then the law on probation shall apply.

The Majority held that in these cases, the prosecution was deemed to have withdrawn its objection to the plea bargain when the DOJ itself aligned its plea bargaining policy with the Court's framework. The Majority nonetheless ordered the remand of the cases for the trial court to determine –

... (1) whether the evidence of guilt is strong; and (2) whether Baldadera and Montierro are recidivists, habitual offenders, known in the community as drug addicts and troublemakers, have undergone rehabilitation but had a relapse, or have been charged many times.

Let me start with the salient points of the revised practice direction on plea bargaining, as clarified by how the present cases were disposed of:

1. In all instances of plea bargaining (i.e., not just in criminal cases involving drugs), the trial court has the duty to determine the propriety of the plea bargain. The dispositive factors are –
   

   • the prosecution's evidence against the accused is strong, and (not or as I will explain below)
     
   • the accused's character or status as a recidivist, habitual offender, relapsee, or repeat criminal indictee, or the latter's notoriety as a drug addict and troublemaker, and
     
   • in drugs cases, the plea bargain must conform with the Court's Plea Bargaining Framework.
     

   
   If both the first and the second factors are present, even if the third factor is complied with, the trial court shall reject the plea bargain.
   
   If the third factor is not complied with, regardless of the presence or absence of either or both the first and the second factors, the trial court shall reject the plea bargain.
   

2. In deciding whether to accept or reject the plea bargain, the trial court may consider other factors, which are "the relevant circumstances, including the character of the accused."
   
   
3. The prosecution may either consent or object to the accused's plea bargain.
   

   1. Based on the dispositive portion of the ponencia, if the prosecution consents, or passively does not object, or withdraws its objection, or if its objection is improper, the trial court must still hear the prosecution on the presence or absence of the determinative factors. If these factors are present, the trial court shall reject the plea bargain and continue with the trial.
      
      
   2. Based on the ponencia's practice direction in No. 8 in relation to No. 5, if the prosecution objects, and the objection is based on the determinative factors, the trial court must then hear the prosecution on its objections. If these factors are present, the trial court shall reject the plea bargain and continue with the trial.

4. The range of objections the prosecution can offer is severely limited. It cannot object "under any internal rules or guidelines of the DOJ," if the accused is plea bargaining "in accordance with the plea bargaining framework issued by the Court."

I most respectfully disagree.

First. The practice direction on plea bargaining is purposively and openly to diminish or at least modify the prosecutorial discretion of the Executive Branch represented by the DOJ in the criminal justice system generally and the plea bargaining process more specifically. With utmost respect, this practice direction is unconstitutional.

This is because the Court's rule-making power is proscribed against promulgating rules that diminish, increase, or modify substantive rights. The practice direction on plea bargaining is an exercise of the Court's rule­-making power. But it diminishes or at least modifies a substantive right of the DOJ to exercise prosecutorial discretion. Hence, on this principled ground, I have to disagree with the Majority's practice direction. It is ultra vires.

Prosecutorial discretion refers to the freedom and power of choice and action exercised by the DOJ Secretary – and the Secretary's delegated agent – in matters relating to the prosecution of criminal offenses which fall within the DOJ's authority. This discretion encompasses a wide range of activities including but not limited to the choice of charge, the decision to proceed (which includes plea bargaining), and the withdrawal or dismissal of charges.

Prosecutorial discretion is inherent to the office of the DOJ and flows from the sovereign's constitutional right to prosecute crimes.^[1] This freedom and power have also been codified in Title III, Book IV of the Administrative Code of 1987, as amended.^[2]

When exercising this discretion in prosecutorial matters, the prosecutors occupy a distinct position because they must not only consider the situation of the individual in question, or individualized justice, but also the demands of the public interest.^[3] Hence, in this regard, prosecutors are admonished that –

[t] he primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.^[4]

At the same time, prosecutorial discretion is guided by such other factors as flexibility and scarce resource maximization, and the push and pull between prioritizing expediency including crime prevention through restorative justice and shock-and-awe approaches and docket management and the multi-faceted goals of fairness and justice. In fine, the prosecutor's function is so much more a matter of public duty than one in civil life, as there can be none charged with greater personal responsibility than this role.

As will be explained below, the Majority's practice direction on plea bargaining severely curtails the right of the prosecution to exercise its discretion in the prosecution of crimes. Thus, the practice direction violates the separation of powers between the Judiciary and the Executive.

As has been explained elsewhere,^[5] where discretion is granted to make determinations in multiple specific cases, then the exercise of that discretion must be determined in accordance with the specifics of each case. The fact that the Constitution and Congress have granted this power means that they wanted the discretion to be exercised on a case-by-case basis. The underlying purpose in granting a decision-maker discretion is to guarantee flexibility and responsiveness in decision-making. The decision-maker will err if, rather than considering the decision on a case-by-case basis, it simply applies or follows earlier developed procedures or policy without considering whether that policy is appropriate to the particular case.

More,^[6] the blind following of guidelines or frameworks is not the only way decision-makers can fetter their discretion. Discretion is fettered whenever decision-makers decide a matter (which is to be decided on the basis of discretion) on the basis that some pre-existing policy or view, rather than on the basis of the merits of the case. All decision-makers may take into account guidelines, general policies, and rules, or try to decide similar cases in a like manner. But a decision-maker cannot fetter its discretion in such a way that it mechanically or blindly makes the determination without analyzing the particulars of the case and the relevant criteria. For again, discretion must be exercised on. a case-by-case basis.

Thus,^[7] the decision-maker may not adopt inflexible policies, as the existence of discretion inherently means that there can be no rule dictating a specific result in each case, and the flexibility and judgment that are an integral part of the discretion may be lost. Discretion, by its nature, can lead to different results in different cases, and that everyone may expect an individual and independent assessment of the case.

Second. No. 1 of the Majority's practice direction requires the accused to start plea bargaining with a written motion to the trial court. The practice direction though does not clarify the effect of the motion, especially when the plea bargain is denied.

Does the motion amount to an offer of compromise that under Section 28 of Rule 130 of the 2019 Amendments is an implied admission of guilt? Or is the motion (though addressed to the prosecution and the trial court) part of the without prejudice discussions between the prosecution and the defense?

If the latter, I see no reason for requiring as an originating process only a motion filed with the trial court. We ought to allow as well the plea bargaining to take place between the prosecution and the defense even without a motion having been filed first, and later, when the plea bargain is finalized, only then should it be presented to the trial court for approval or rejection.

I have two reasons for this respectful opinion –

• As an impartial tribunal, the trial court must not be involved during the negotiations between the defense and the prosecution, and these negotiations should be understood to be without prejudice and confidential. This is to protect the trial court from the substantial risk of losing its impartiality by hearing information about the case and worse taking part in the plea bargaining between the prosecution and the defense.
  
  
• It is also to encourage a free flowing back-and-forth between the prosecution and the defense, that their communications should be kept confidential and privileged. This consideration is the same as those for requiring court-annexed mediations to be confidential and privileged.

Indeed, while the trial court and the Court may approve or reject a plea bargain, they cannot take part, directly or indirectly, in the plea negotiations. This is what is happening with the Majority's practice direction on plea bargaining. As has been explained elsewhere:^[8]

The California Supreme Court has written that "[t]he process of plea bargaining which has received statutory and judicial authorization ... contemplates an agreement negotiated by the People and the defendant and approved by the court." (People v. Orin (1975) 13 Cal.3d 937, 942 [120 Cal.Rptr. 65, 533 P.2d 193]; see also In re Lewallen (1979) 23 Cal.3d 274, 280-281 [152 Cal.Rptr. 528, 590 P.2d 383, 100 A.L.R.3d 823].) Another court explained: "[Because] experience suggests that [judicial participation in plea bargaining] risks more, in terms of unintentional coercion of defendants, than it gains in promoting understanding and voluntary pleas ... most authorities recommend that it be kept to a minimum ...." (People v. Williams (1969) 269 Cal.App.2d 879, 884 [75 Cal.Rptr. 348].)

The American Bar Association, in its Standards for Criminal Justice (ABA Standards), points out that "the Federal Rules of Criminal Procedure and numerous statutes and rules forbid the involvement of judges in plea discussions." (3 ABA Standards, std. 14-3.3(c)-(f) (2d ed. 1980) p. 14.84, fns. omitted.) The ABA Standards further explain that the trial court plays an essential role in the plea bargaining process of ensuring that the process is fair and that the plea is voluntary. A court's participation in the bargaining, or maintenance of a fixed policy regarding any aspect of plea agreements, could compromise this essential role. Also, coercion is more likely to occur when a defendant is negotiating with the judge who is presiding over his or her case rather than the prosecutor, and equality of bargaining power between the prosecution and defense may be upset when the judge enters into the bargaining process. (ABA Standards, op. cit. supra.)

As the appellate court in Morris concluded: "While trial courts are encouraged to fashion procedural innovations, consistent with due process requirements, designed to effectively and fairly expedite the processing of criminal cases, we cannot condone unconventional techniques which dearly infringe upon a defendant's basic rights or otherwise fetter prosecutorial discretion as are here manifested." (97 Cal.App.3d 358, 364.) The Supreme Court found this reasoning "manifestly correct" in Cruz. (44 Cal.3d 1247, 1253-1254.)

CA (1b) We conclude that the return provision was not a valid part of appellant's plea bargain. The trial court, while no doubt well-intentioned, infringed on appellant's due process rights by maintaining and implementing its return provision policy. In light of our conclusion, we do not address the other issue raised by appellant.

I therefore disagree with the Majority's practice direction for yet another reason. It violates the due process clause, specifically the right of the accused to an impartial judge.

Third. No. 1 and the rest of the Majority's practice direction may have overlooked to require the trial court to conduct a plea inquiry as part of the plea bargaining. This plea inquiry is necessary to protect an accused from entering into a plea bargain not because they are truly guilty but out of undue influence over them to accommodate the convenience of the trial court, the prosecutor, and the defense counsel. Also, since the plea bargain is a waiver of the process constitutionally guaranteed to an accused, this waiver must be based on truly free and informed consent. The plea inquiry fills in this need.

The accused must go through the plea inquiry before they plead guilty. The purpose of the plea inquiry is to make sure they understand:

• what it means to plead guilty;
  
  
• the accused's rights if they plead not guilty; and
  
  
• the accused cannot plead guilty if the judge is not satisfied that they have honestly answered the plea inquiry.

The defense lawyer will work through the plea inquiry with the accused in private and in open court before the judge. The accused will be asked by the defense counsel whether:

• anyone has pressured or forced the accused to plead guilty;
  
  
• the accused agree that they committed the crime they are pleading guilty to;
  
  
• the accused understand that by pleading guilty they are giving up their right to a trial and to have the prosecution prove the charges against them beyond a reasonable doubt;
  
  
• the accused understand that they will get a criminal record;
  
  
• the accused understand that they will be sentenced;
  
  
• the accused understand that the judge can reject the plea bargain; and,
  
  
• the accused understand that the sentence must conform with the Court's plea bargaining framework, if any, and that it could happen right away or at a later date.

Pleading guilty is a serious decision that has lifelong consequences. An accused should not plead guilty on plea bargaining unless they can answer the plea inquiry honestly and to the satisfaction of the defense lawyer and the trial court.

If the answers of the accused show that they do not understand the consequences of pleading guilty, or that someone has pressured them, even if for some noble reason as the trial court's docket management, the trial court should not accept a guilty plea from them. Instead, the trial court must enter a plea of not guilty on their behalf. If this happens, the accused will have a trial and will only be sentenced if they are found guilty beyond reasonable doubt.

Fourth. As regards No. 2, I agree that the Court has the final say on whether the lesser offense in the plea bargain is necessarily included in the offense charged. This is a question of law. Hence, the Court may lay down a plea bargaining framework that pre-identifies the offenses which are necessarily included in the offense charged.

Fifth. No. 3 requires the accused to undergo a drug dependency assessment the moment they propose (or move for) plea bargaining. In my humble view, this requirement may no longer be necessary because –

• Drug test (or better, drug dependency assessment) should actually be done to "[a]ll persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day...."
  
  
• The drug dependency assessment impacts on the service of sentence by the accused, regardless of whether the trial court rejects or accepts the plea bargain. Hence, it may not be necessary to require it early on in the process, and thus, delay the disposition of the criminal case.
  
  
• No data are available on the waiting period and the processual period for a drug dependency assessment. Hence, again, to require it early on in and as a condition precedent to the plea bargaining may just delay the disposition of the criminal case.

Sixth. Nos. 4, 5, and 6 only speak to the trial court's discretion to reject a plea bargain and the trial court's duty to reject a plea bargain. They are silent however as to whether the trial court has the power to impose a plea bargain. This silence leads to an ambiguity that is better off clarified at this time, if we truly want the Bench and the Bar to be correctly guided.

Seventh. In No. 5, the first prong of the determinative factors – i.e., the accused's status and notoriety, I respectfully opine that it should not be treated as if they were bright-line rules. Rather, they should be meant to be fine lines or starting points for the balancing with other factors and inquiries. To illustrate, an accused who is notorious to be a troublemaker could be so because of drug addiction. Then, perhaps, until rehabilitation has proven to be utterly ineffective, this accused should not be denied the opportunity to plea bargain. A repeating indictee's circumstances, for instance, could be indicative of police profiling. The point that I am making is that this first prong is not a reasonable per se measure of the accused's worth for plea bargaining purposes.

On this score, I respectfully submit that the Majority should have constituted the first prong as fine line, not bright-line tests for plea bargaining availability. To do this, the Majority's practice direction should open categorically the first prong to the trial court's consideration of all "the relevant circumstances, including the character of the accused" under No. 4 (a) of the practice direction.

Eighth. In No. 5, the second prong of the determinative factors – i.e., the prosecution's evidence is strong – should be clarified as to what is meant by "strong." Is the standard the same as the standard in bail applications? If the practice direction is meant to provide workable guidelines to the Bench and Bar, this clarification should have been included under No. 5.

Ninth. With due respect, it is my humble view that No. 5 unconstitutionally diminishes the substantive right of the prosecution to prosecutorial discretion. There are legitimate public policy and public interest reasons for the prosecution to plea bargain though both the determinative factors are present, that is, the prosecution's evidence is strong and the accused belongs to the excluded class.

For instance, the DOJ may want to obtain crucial information about some crime or crimes, and the way to do this is through the plea bargain. The Court should not limit the discretion of the prosecution on how to implement its law enforcement and crime prevention duties, especially in using plea bargaining as a tool to this end.

Tenth. No. 6 might also unconstitutionally diminish the substantive right of the prosecution to prosecutorial discretion. While I admit that the Court has the power to pre-identify the crimes necessarily included in the crimes charged and construct a plea bargaining framework for this purpose, the plea bargaining framework should not restrict the prosecution from determining for itself and submitting to the Court its view that the crime for plea bargaining is also necessarily included in the crime charged.

If indeed the plea bargaining crime is necessarily included (like possession in a charge of sale), it is not reason for the trial court to reject the plea bargain solely because it does not conform with the Court's plea bargaining framework. Stated differently, the latter should only be considered a starting point but not the end-all and be-all of the crimes necessarily included in a charge, if this is truly not the case.

Eleventh. No. 7 talks about the power of the trial court to overrule the prosecution's objections to a plea bargain offer. I beg to disagree because –

• it is silent on whether the trial court could impose a plea bargain as a result of its overruling the prosecution's objections.
  
  
• And to repeat, it unconstitutionally diminishes the substantive right of the prosecution to prosecutorial discretion. For –
  
  
  • It is not fair to allow the trial court the discretion to consider all "the relevant circumstances, including the character of the accused" under No. 4(a) of the practice direction, yet deny the prosecution this same amount of latitude in formulating their objections to a proposed plea bargain.
    
    
  • The trial court is empowered to overrule the prosecution's objections based on its internal rules guidelines or policies, when the accused's plea bargain is already in accordance with the Court's plea bargaining framework, if any.

This reference to internal rides, guidelines, or policies is so broad that they could very well inhibit legitimate prosecutorial discretion. Notably the Court's plea bargaining framework does not justify depriving the prosecution of its right to conduct the prosecution of criminal cases,  including plea bargaining, in the manner it sees fit.

What legitimate objections may the prosecution raise against a plea bargain other than those already mentioned in No. 5?

There are situations where the evidence of guilt is not strong because of technical reasons. For example, in People v. Musor,^[9] the Court required the presence of the Section 21 witnesses at the time of the actual apprehension of the drug pushers. This meant being present at the time of the buy-bust operation itself, no matter how impractical or absurd this requirement might be.

The DOJ should not be compelled to sit idly by and not object to the plea bargain when it firmly believes that this rule in People v. Musor should be questioned or should not be applied at all.

The Court's plea bargaining framework should only be that, a framework, a skeleton, a shell, a platform. But the details that go into the framework, from the perspective of the prosecution, is for the prosecution to decide. We invite the prosecutors inside our framework, skeleton, shell, or platform, but we do not tell them what to say after they have come in.

With due respect, what the Majority envisions is not a conversation, not a dialogue, not a court proceeding even where litigants are allowed to voice their reasons. There are no exchanges of ideas, when plea bargaining is about that.

By refusing to agree to the plea bargain which coincides with the Court's plea bargaining framework, the prosecution is not undermining the Court's rule-making power. In the first place, the prosecution has the inherent right to agree or not to agree to a plea bargain, consistent with its prosecutorial discretion.

This discretion is not of course unfettered. There is that overarching restriction of grave abuse of discretion or even abuse of process. More, even the Court has innumerably held that generally we will not restrain a criminal prosecution. So, I cannot reconcile this claim of undermining the Court's rule-making power with the fact that the prosecution simply begged to differ and refused the plea bargain.

The Majority should have clarified that No. 5 of the practice direction refers to situations where the DOJ itself has set down internal rules, guidelines or policies that amount to a plea bargaining framework that differs from the Court's framework. But what of it? Unless it has been shown that the DOJ's own set of plea bargaining rules is an abuse of process or was enacted with grave abuse of discretion, for reasons other than that it is not similar to or the same as the Court's framework, the Court has to respect its prosecutorial discretion – just as we would expect the DOJ and its prosecutors to respect our discretion.

And if the DOJ prosecutors were to object to the plea bargain simply by referring to these internal rules, guidelines or policies, the objection would actually be the short-hand or banner of the underlying policy considerations that the policy-makers at the DOJ head office have factored in in writing and imposing the internal plea, bargaining rules, guidelines or policies. In all these instances, from the formulation of internal rules, guidelines or policies to its invocation by the prosecutors, what is at work is the DOJ's inherent right of prosecutorial discretion.

To summarize, the trial court should only reject a plea bargain or the prosecutor's objections to the plea bargain, only if the plea bargain or the objections amount to grave abuse of discretion or an abuse of process.

An example of an improper exercise of prosecutorial discretion in plea bargaining is when the discretion amounts to prosecutorial vindictiveness. This occurs where the accused is being punished for the exercise of a protected right.^[10]

Twelfth. In sum, the following are my recommendations on plea bargaining –

• In No. 1, by recasting the exclusive requirement of a written motion to the trial court as an originating process for the plea bargaining, and in its place, to recognize direct negotiations between the prosecution and the defense as a proper way to start the plea bargaining.
  
  
• Still in No. 1 by ensuring that plea bargaining are confidential privileged and without prejudice.
  
  
• By requiring a plea inquiry.
  
  
• In No. 3, by not requiring a drug dependency assessment as a condition precedent to start the plea bargaining.
  
  
• By clarifying whether the trial court has the power to impose a plea bargain despite the opposition of the prosecution.
  
  
• In No. 5, by clarifying the standard for determining whether the evidence of the prosecution is strong.
  
  
• Further in No. 5, by recasting the first prong of the determinative factors to consider the over-all conduct of the accused and the context of the accused's conflicts with the law.
  
  
• By inserting in the practice direction this caveat: Prosecutors must still exercise sound discretion in agreeing to or rejecting the plea bargain, taking into account the relevant circumstances, including the character of the accused and the externalities of the alleged criminal incident.
  
  
• By inserting in the practice direction this caveat: If the prosecution objects to the accused's plea bargaining proposal due to the circumstances enumerated in item no. 5 and/or item no. 6, the trial court is mandated to hear the prosecution's objection and rule on the merits thereof. If the trial court finds the objection meritorious, it shall order the continuation of the criminal proceedings. Otherwise, only if the objection is clearly and convincingly unmeritorious, the trial court shall approve the plea bargain over the objection of the prosecution.
  
  
• By inserting in the practice direction this caveat. The trial court should only reject a plea bargain or the prosecutor's objections to the plea bargain, if the plea bargain or the objections amount to grave abuse of discretion or an abuse of process.

My overall thrust is simple – to respect the prosecutorial discretion of the DOJ and its prosecutors. The rule-making power of the Court did not silence this freedom and power of choice and action of the prosecution. Their respective powers have co-existed peacefully since time immemorial. The DOJ has its work, we have ours. One need not submit to the other. There is no contest between the courts and the DOJ in the plea bargaining process. There should just be, unity.

Postscripts from recent past

The Court's Plea Bargaining Framework was one of the reactions to the deluge of criminal cases involving drugs in our trial courts. Dockets of drug cases were soaring. We were constrained to include every court to address this deluge. In A.M. No. 16-07-06-SC (2016), the Court observed and did its best to resolve this concern:

WHEREAS, in compliance with Section 90, Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as amended, the Supreme Court designated 65 "special courts from among the existing Regional Trial Courts (RTCs) in each judicial region to exclusively try and hear cases involving violations of this act";

WHEREAS, there are also 529 RTCs in single and multiple-sala stations which likewise hear and decide drugs cases, in addition to 121 RTCs specially-designated as Family Courts having exclusive jurisdiction to hear and decide drugs cases against minors pursuant to Republic Act No. 8369;

WHEREAS, consequently, at present, there are already 715 RTCs authorized to hear and decide drugs cases;

WHEREAS, because the volume of drugs cases remains high and the influx of new drugs cases is steadily rising, there is an urgency to authorize more courts to hear and decide drugs cases considering the already heavy dockets of specially-designated drugs courts and other RTCs handling drugs cases;

WHEREAS, with 715 RTCs out of the 955 RTCs already handling drugs cases, the remaining 240 other RTCs may be mobilized and directed to also hear, try and dccide all newly-filed drugs eases to help decongcst the dockets of specially-designated drugs courts and expedite the resolution of drugs cases.

Clearly, our framework was dictated by multifarious concerns of expediency, judicial economy, fairness, and efficient case management. It was a unilateral response from us to resolve a near-crisis situation. With this context, I sincerely believe we have to go slow in making this framework the benchmark as the DOJ's prosecutorial discretion in plea bargaining may be diminished. It does not provide the apt context for regulating this freedom and power of the DOJ.

ACCORDINGLY, I vote to modify the Majority's practice direction on plea bargaining so as to respect the prosecutorial discretion of the DOJ and its prosecutors.

---

^[1] People v. Ocden, 665 Phil. 268 (2011), quoting People v. Romero, 296 Phil. 646 (1993): "It is relevant to note that "the right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the sovereign power instinctly charged by the common will of the members of society to look after, guard and defend the interests of the community, the individual and social rights and the liberties of every citizen and the guaranty of the exercise of his rights." This cardinal principle which states that to the State belongs the power to prosecute and punish crimes should not be overlooked since a criminal offense is an outrage to the sovereign State."

^[2] SECTION 1. Declaration of Policy. — It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system xxxx.
SECTION 2. Mandate. — The Department shall carry out the policy declared in the preceding section.
SECTION 3. Powers and Functions. — To accomplish its mandate, the Department shall have the following powers and functions: (1) Act as principal law agency of the government and as legal counsel and representative thereof, whenever so required; (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; xxxx. (7) Provide legal services to the national government and its functionaries, including government-owned or controlled corporations and their subsidiaries; and (8) Perform such other functions as may be provided by law.

^[3] Abela v. Golez, 216 Phil. 12 (1984).

^[4] Rule 6.01, Code of Professional Responsibility.

^[5] Vale Newfoundland & Labrador Limited v. United Steel, Paper and Forestry, Rubber, Manufacturing. Energy, Allied Industrial and Service Workers International Union (United Steelworker's Local 9508), 2011 NLLRB I (CanLII).

^[6] Id.

^[7] Id.

^[8] People v. Jensen, 4 Cal App 4th 978, 979, 6 Cal Rptr 2d 201, 201 (Cal App 1st Dist March 18, 1992).

^[9] G.R. No. 231843, November 7, 2018: "The presence of the three witnesses must be secured not only during the inventory but more importantly at the time of the warrantless arrest.... The practice of police operatives of not bringing to the intended place of arrest the three witnesses.... To restate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be secured and complied with at the time of the warrantless arrest.... It is important to point out that the buy-bust team, most especially, PO2 Bautista, as a former PDEA officer, knew that the presence of the three witnesses is required at the time of the warrantless arrest."

^[10] People v. Jensen, 4 Cal App 4th 978, 979, 6 Cal Rptr 2d 201, 201 (Cal App 1st Dist March 18, 1992).

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SEPARATE CONCURRING AND DISSENTING OPINION

KHO, JR., J.:

I fully concur with the ponencia insofar as the following aspects are concerned:

First, that the instant cases and administrative matter have become moot and academic due to the issuance by the Department of Justice (DOJ) of Department Circular No. 18 dated May 10, 2022 (DOJ Circular No. 18) entitled "Revised Amended Guidelines on Plea Bargaining for Republic Act No. 9165 otherwise known as the 'Comprehensive Dangerous Drugs Act of 2002,'" which amended DOJ Circular No. 27 entitled "Amended Guidelines on Plea Bargaining For Republic Act No. 9165 Otherwise Known as the 'Comprehensive Dangerous Drug Act of 2002.'"

Since the plea bargaining proposals of Erick Montierro y Ventocilla (Montierro) and Cypher Baldadera y Pelagio (Baldadera) are already consistent with the guidelines contained in DOJ Circular No. 18, I agree that the objections of the prosecution to their plea bargaining proposals are deemed effectively withdrawn; hence, the issue of whether the trial courts erred in overruling the prosecution's continuing objections to their plea bargaining proposals has been rendered moot and academic.^[1] Second, the trial courts hearing the drug cases of Montierro and Baldadera should not have hastily approved their plea bargaining proposals over the continuing objections of the prosecution. The trial courts should have first resolved the objections raised – by sustaining or overruling the same – before acting on the said plea bargaining proposals. Thus, the drug cases should be remanded to the courts of origin for further proceedings.^[2]

It should be noted that, as stated earlier, since the continuous objections of the prosecution are already deemed withdrawn, the prosecution should be allowed to re-evaluate the plea bargaining proposals of Montierro and Baldadera and determine whether their proposals are acceptable. In the event the accused and the prosecution agree to a plea bargain, the trial courts shall rule on the plea bargaining agreements submitted on the basis of whether the requisites of plea bargaining as stated in Section 2, Rule 116 of the Revised Rules on Criminal Procedure were dutifully complied with.

However, I respectfully offer a contrary view on the guidelines that the Majority states should be observed during the conduct of plea bargaining in drugs cases, as well as the rationale behind the said guidelines as provided by the Majority, as will be explained later.

At this stage, an exposition on the concept of plea bargaining is warranted.

I.

The Origin of Plea Bargaining in the United States
In the United States (US), plea bargaining refers to an "exchange of official concessions for a defendant's act of self-conviction;" such concessions may relate to the sentence to be imposed, the offense charged or any other circumstance.^[3]

The concept of plea bargaining, or at least evidence of its use can be traced back to the nineteenth century.^[4] Although its foundation exists in common law and not in statute, it was given express imprimatur by the Supreme Court of the United States (SCOTUS) in 1970 in the seminal case of Brady v. United States (Brady),^[5] due to its practicality and expediency in the administration of justice. In the said case, the SCOTUS held:

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.^[6] (Emphases supplied)

Since then, plea bargaining has become indispensable in the disposition of countless criminal cases, with an overwhelming majority of criminal cases being resolved by plea bargain in recent US history.^[7] Although not causative of its rise in use in the US justice system, some scholars posit that the changing complexity of the jury trial system in the latter half of the 1900s, coupled with trial court judges' apprehension in conducting bench trials, i.e., trials without a jury, for serious crimes led to the adoption of plea bargaining as the main method of resolution for criminal cases.^[8] "Not only was the non[-]trial solution of plea bargaining more rapid than bench trial, it also protected the weak, elective American trial bench from the moral responsibility for adjudication and from the political liability of unpopular decisions. x x x easier, that is, for the judges to allow the prosecutor to wring out a plea concession than to bring themselves to insist on adjudication before condemnation.^[9]

However, plea bargaining is largely a contractual affair between prosecutors and defendants, subject to the ultimate approval of the trial court judge; any breach in the terms of the plea bargain, would allow the offended party to seek some form of relief from the court.^[10]

In Santobello v. New York (Santobello),^[11] the SCOTUS underscored the importance of honoring the promises made by the prosecutor to the defendant in securing the latter's plea of guilt:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

On this record, petitioner "bargained" and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor's office have the burden of "letting the left hand know what the right hand is doing" or has done. That the breach of agreement was inadvertent does not lessen its impact.

We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty. We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.^[12] (Emphases supplied)

Arriving at some mutually accepted compromise between the State and the defendant is driven by the fact that both stand to gain and lose from plea bargaining. The State loses the opportunity to convict a defendant for the crime actually committed, but allows them to secure a potential key witness for other crimes. It also allows them to achieve high conviction rates while shedding expense, uncertainty, and the opportunity costs of regular trials. They can then reallocate these resources to pursue more cases. On the other hand, the defendant sheds his presumption of innocence and his constitutionally guaranteed right to be heard and for the conduct of a trial, but instead gains leniency or a reduced sentence while avoiding the rigors and difficulties of going to trial.^[13]

II.
Plea Bargaining in the Philippines
Under Philippine jurisdiction, plea bargaining is defined as "a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval."^[14] It refers to the practice of allowing a defendant/accused to plead guilty to a lesser offense than the crime actually charged in the complaint or information, with the conformity of the offended party, the prosecution, and the trial court judge, in order to secure a lighter penalty.^[15]

It is well to clarify, however, that plea bargaining is not a matter of right on the part of the accused. Case law instructs that "[n]o basic rights are infringed by trying [an accused] 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."^[16]

In this regard, it bears noting that there is no legislation that governs plea bargaining in the Philippines. On the other hand, plea bargaining is explicitly found in the rules of procedure duly promulgated by the Court, particularly, Section 2, Rule 116 of the Revised Rules on Criminal Procedure, which reads:

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.

Under this provision, "the basic requisites of plea bargaining are: (a) consent of the offended party; (b) consent of the prosecutor; (c) plea of guilty to a lesser offense which is necessarily included in the offense charged; and (d) approval of the court."^[17]

Otherwise stated, a valid plea bargain requires the consent of both the offended party and the prosecutor. However, it bears pointing out that any agreement regarding plea bargaining shall still undergo scrutiny by the trial court handling the criminal case, whose approval is necessary before any plea bargaining arrangement may validly push through.

It is respectfully submitted that the fact that there is no substantive law that relates to plea bargaining and that the same is found in prevailing rules of procedure does not necessarily mean that all aspects of plea bargaining are purely procedural in nature, as what the Majority posits. In fact, the process of plea bargaining is where the two (2) great branches of government – the Executive Department and the Judicial Department – converge, where each has a significant, but separate, role to play to advance the administration of justice.

As may be seen in the requisites of plea bargaining, aside from the accused and the private offended party in applicable instances (as there are crimes which have no private offended party) there are two (2) branches of government that are involved in a plea bargaining process, namely: (a) the Executive Department, represented by the prosecutor who is an agent of the DOJ, which in turn, acts as an alter-ego of the President – that consents to a guilty plea to a lesser offense by the accused; and (b) the Judicial Department, as represented by the trial court handling the criminal case – that approves or disapproves a plea bargaining arrangement agreed upon by the parties-litigants in a criminal case.

That said, and to further understand the interplay of Executive and Judicial powers insofar as plea bargaining is concerned, there is a need to delineate the powers of these great departments in relation to the prosecution of criminal cases in general.

III.

The Interplay of
Executive and Judicial Powers in Criminal Cases
Pursuant to Section 17, Article VII^[18] of the 1987 Constitution which mandates the President – the bearer of Executive power – to "ensure that the laws [shall] be faithfully executed," it is the Executive Department that is tasked to uphold and enforce the law, and to ensure that all violators are brought to justice in order to uphold public order.

Necessarily, "the prosecution of crimes appertains to the [E]xecutive [D]epartment of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators." ^[19]

It is thus elementary that "in criminal cases, the offended party is the State, and 'the purpose of the criminal action is to determine the penal liability of the accused for having outraged the State with his crime ... In this sense, the parties to the action are the People of the Philippines and the accused. The offended party is regarded merely as a witness for the state.'"^[20]

In recognition of this exercise of power by the Executive Department, Section 5, Rule 110 of the Revised Rules on Criminal Procedure, as amended by A.M. No. 02-2-07-SC, explicitly provides that "[a]ll criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor" – who as explained above, is an agent of the DOJ, and who, in turn, is considered an alter-ego of the ultimate wielder of Executive power, the President. Thus, the right to prosecute offenses properly belongs to the Executive Department. This "right to prosecute vests the prosecutor with a wide range of discretion – the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors."^[21]

On the other hand, the courts exercise Judicial power which includes the power "to settle actual controversies involving rights which are legally demandable and enforceable"^[22] and to "[p]romulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts[.]"^[23] In criminal cases, Judicial power is exercised by the courts by directing the orderly conduct of proceedings, and in the process, ultimately resolving the case and all incidents pertaining thereto, such as but not limited to, the main task of determining whether or not the prosecution had established beyond reasonable doubt the guilt of the accused. At all times, the courts should act as an impartial tribunal that sees to it that all rules and procedures pertaining to the proper conduct of a trial are faithfully complied with, due process is accorded with both the prosecution and defense and that any judgment rendered in connection with the criminal case is in accordance with prevailing laws, rules, and jurisprudence.

Since the conduct of plea bargaining is but a mere component of a criminal case, its substantive aspects, particularly, the determination of which offenses may be plea bargained and what may constitute as proper "lesser offenses" to which a plea bargain may be made in each particular case, as well as the prosecution's giving of consent to a plea bargaining proposal, which is an essential requisite to plea bargaining, are part and parcel of the prosecutorial power which rightfully belongs to the prosecutors of the Executive Department.

Plainly, these substantive matters are matters of policy which should not be touched by the courts. After all, it is the prosecutors and the DOJ in general, as agents of the State, who expend State resources in prosecuting violations of the duly enacted penal laws of the country. Thus, the prosecutors must be given the discretion to determine whether or not they will continue to pursue the prosecution of an offense as charged; or if they will just save on the State's resources by agreeing to a plea bargaining deal which will ensure a conviction, albeit for a lesser offense than what was charged. On the other hand, the courts, which stand as the representatives of the Judicial Department, are tasked to ensure that all the requisites of plea bargaining are dutifully complied with.

Lest I be misunderstood, I fully subscribe to the Majority that for every opportune time, the Court should reiterate and assert its exclusive and constitutional rule-making power. However, I respectfully submit that in plea bargaining cases, said exclusivity is wanting. Plea bargaining process is not squarely a rule of procedure under the exclusive domain of the Court, but rather an interplay of the Executive power vis-à-vis Judicial power where the Court should not assert its sole dominance to the exclusion of the Executive. This is not a zero sum game.

IV.

The Contrary View
As mentioned earlier, I submit my contrary view on the guidelines and the rationale provided by the Majority on how courts should conduct plea bargaining in drugs cases. The guidelines provided in the ponencia are as follows:

4. As a rule, plea bargaining requires the mutual agreement of the parties and remains subject to the approval of the court. Regardless of the mutual agreement of the parties, the acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the court.

x x x x

5. The Court shall not allow plea bargaining if the objection to the plea bargaining is valid and supported by evidence to the effect that:

1. the offender is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times; or
   
   
2. where the evidence of guilt is strong.

6. Plea bargaining in drugs cases shall not be allowed when the proposed plea bargain does not conform to the Court-issued Plea Bargaining Framework in Drugs Cases.

7. Judges may overrule the objection of the prosecution if it is based solely on the ground that the accused's plea bargaining proposal is inconsistent with the acceptable plea bargain under any internal rules or guidelines of the DOJ, though in accordance with the plea bargaining framework issued by the Court, if any.^[24]

As I see it, this set of guidelines of the Majority gives the trial courts uninhibited discretion in approving or denying plea bargaining proposals, which in turn, unduly oversteps on the authority of the Executive Department, more particularly, the DOJ – to prosecute crimes.

I thus respectfully opine that the plea bargaining process should be viewed in the following prism:

1) Plea bargaining is a process involving multiple parties, namely: (a) the accused who seeks to avail of the process; (b) the private offended party, in certain crimes, whose consent is indispensable to a valid plea bargaining agreement; (c) the handling prosecutor as representative of the DOJ – and in the bigger picture, as representative of the Executive Department – whose task is to prosecute offenses and whose consent is equally indispensable to a valid plea bargaining agreement; and (d) the trial court as representative of the Judicial Department, whose critical task is to ensure that all the requisites of a valid plea bargaining agreement under the Rules are present before approving the same.

2) If the accused wishes to plead guilty to a lesser offense, he should make his intentions known to the handling prosecutor, who in turn should determine whether plea bargaining is proper. In making such determination, the handling prosecutor should take into consideration, among other things: (i) whether the lesser offense to which the accused seeks to plead guilty to is necessarily included in the offense charged or determine the proper lesser charge to which the accused can plea; (ii) internal rules or guidelines within the DOJ that govern plea bargaining and the giving of consent to any plea bargaining agreement; (iii) whether the evidence of guilt is strong; and (iv) the conformity of the private offended party, in proper instances. Further, the handling prosecutor may also consider whether a plea bargaining agreement will serve the interests of justice if the accused is a recidivist, habitual offender, known in the community as a drug dealer and a troublemaker, had undergone rehabilitation but suffered a relapse, has been charged many times, or any other relevant ancl material situation, depending on the peculiar circumstances of each case.

3) If the handling prosecutor is not amenable to the offer to plea bargain, he should signify his refusal to give consent in writing. The accused and/or the offended party cannot compel the handling prosecutor to give such consent. However, they may elevate the matter of the handling prosecutor's refusal to give consent to the Prosecutor General/City/Provincial Prosecutor who exercises the power of control and supervision over such handling prosecutor, and later on, to the Secretary of Justice, pursuant to the doctrine of exhaustion of administrative remedies. If such refusal is sustained at the level of the Secretary of Justice, the accused may, if he/she so wishes, assail the same through an appeal to the Office of the President or petition for certiorari on the ground of grave abuse of discretion, whenever appropriate.

4) The refusal of the handling prosecutor all the way to the Secretary of Justice and the Office of the President to give the consent to a plea bargaining agreement does not empower the trial courts to overrule the same, in respect and deference to the DOJ's power to prosecute offenses which is purely an Executive function. The duty of the trial courts in such cases is to proceed to trial.

5) If the handling prosecutor, and the private offended party in proper cases, agree to the offer of the accused to plea bargain, they shall put their agreement in writing, i.e., draft the plea bargaining agreement, and submit the same to the trial court where the case is pending for consideration.

6) Upon submission of the plea bargaining agreement, the trial court shall have the duty and responsibility to determine whether the plea bargaining agreement satisfies all the requisites for a valid plea bargaining agreement under Section 2, Rule 116 of the Revised Rules of Criminal Procedure, including ascertaining whether there is indeed consent from the prosecutor and private offended party in proper cases, and whether their consent were voluntarily and intelligently given. It is also the duty and responsibility of the trial court to ensure that the accused fully understands and accepts the consequences of his plea to a lesser offense including the penalty thereof, as well as to determine whether the lesser offense which the accused shall plead guilty to is necessarily included in the offense charged. Again, owing to the constitutional doctrine of separation of powers and the express provision of Section 2, Rule 116 of the Revised Rules on Criminal Procedure, this is the critical function of the trial courts in the plea bargaining process, consistent with the principle that courts should act as impartial tribunals in the dispensation of justice.

7) If the court handling the criminal case determines that all requisites are dutifully complied with, then it shall approve the plea bargaining agreement, and promulgate a ruling convicting the accused of the lesser offense to which he pleaded guilty to. Other wise, the court shall reject the plea bargaining agreement and continue with the trial.

V.
Disagreement with the
Fourth, Fifth, Sixth, and Seventh Guidelines
Given the foregoing discussions, I now explain my disagreement with the fourth, fifth, sixth, and seventh guidelines, as provided in the ponencia.

To recall, the fourth guideline provides:

4. As a rule, plea bargaining requires the mutual agreement of the parties and remains subject to the approval of the court. Regardless of the mutual agreement of the parties, the acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the court.^[25] (Emphasis and underscoring supplied)

Contrary to what the guideline states, the approval to plea bargain is not entirely dependent to the sound discretion of the court. To reiterate, plea bargaining involves an interplay of the great powers of the Executive and Judicial Departments. It is essentially a two (2)-step process:

First, once the accused submits a plea bargaining proposal, it is up to the Executive Department, through the DOJ and its prosecutors, that wields prosecutorial power, to determine whether it should give its consent to the same; and

Second, once the Executive Department (and the private offended party, in proper cases) gives its consent, it is now up to the Judicial Department to ensure and verify that all requisites for a valid plea bargaining agreement are present. If in the affirmative, then the courts should approve the plea bargaining agreement; otherwise, it should be rejected.

Thus, the first step involves the discretion of the Executive Department, whose discretion in giving or not giving its consent, should be respected by the court as a co-eqnal body. As already adverted to, the involvement of the Judicial Department in the plea bargaining process is only when the accused, the handling prosecutor, and the private offended party in proper cases, have mutually agreed on a plea bargaining agreement and the same is submitted to the court where the criminal case is pending for its approval or disapproval – which is encapsulated in the second step as above-described. Thus, the plea bargaining process is a shared responsibility of the Executive and Judicial Departments.

With respect to the fifth guideline, it reads:

5. The Court shall not allow plea bargaining if the objection to the plea bargaining is valid and supported by evidence to the effect that:

a) the offender is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times; or

b) where the evidence of guilt is strong.^[26]

It is respectfully submitted that the factors affecting the character of the accused, such as, if the accused is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but suffered a relapse, has been charged many times, when the evidence of guilt is strong, or any other relevant and material event or circumstance, should not be considered as automatic disqualifications on the part of the accused to avail the benefits of plea bargaining. This is for the Executive, through the handling prosecutor, to carefully evaluate and determine whether such factors may disqualify the accused from availing plea bargaining. Considering that the right to prosecute belongs to the Executive Department, the prosecution must be given a wide range of discretion – the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors."^[27]

Anent the sixth and seventh guidelines, they respectively read:

6. Plea bargaining in drugs cases shall not be allowed when the proposed plea bargain does not conform to the Court-issued Plea Bargaining Framework in Drugs Cases.

7. Judges may overrule the objection of the prosecution if it is based solely on the ground that the accused's plea bargaining proposal is inconsistent with the acceptable plea bargain under any internal rules or guidelines of the DOJ, though in accordance with the plea bargaining framework issued by the Court, if any.^[28]

As also discussed above, the determination of which offenses may be plea bargained and what may constitute as "lesser offenses" to which a plea bargain may be made, as well as the giving of consent to a plea bargaining on the part of the prosecutor, are substantive aspects of plea bargaining These are necessarily part and parcel of the prosecutorial power which rightfully belongs to the prosecutors of the Executive Department, which in turn represents the State – and the People of the Philippines for that matter. Thus, the courts should no be allowed to overrule the objection of the prosecution to any plea bargaining proposal of the accused or to disapprove any plea bargaining agreement if all the requisites of plea bargaining under the Rules are present, including in drugs cases. For the Court to allow this to happen is tantamount to the authorization of an undue and dangerous intrusion into the powers of the Executive Department.

It bears reiterating that the role of the Judicial Department in a criminal case is not to champion the cause of the State and the People of the Philippines – its critical role is justly limited to being an impartial tribunal that ensures the orderly conduct of proceedings and to adjudicate in accordance with prevailing laws, rules, and jurisprudence.

Thus, the Judicial Department should not arrogate upon itself the substantive power to determine what is an acceptable "lesser offense" to which the accused may plead guilty to in lieu of the original charge against him/her, and to approve the plea bargaining proposal over the objections ol the prosecutors or to disapprove the plea bargaining agreement notwithstanding the presence of all the requisites of plea bargaining as contained in Section 2, Rule 116 of the Revised Rules on Criminal Procedure. If allowed to do so, the trial courts will effectively supplant the wisdom of the Executive Department in the prosecution of criminal cases, a responsibility imposed upon it by no less than the Constitution, thereby resulting in an impermissible overreach into the realm of the Executive Department.

For these reasons, and after a circumspect reflection, I respectfully submit that it now appears that the Court's very own plea bargaining framework for drugs cases, i.e., A.M. No. 18-03-16-SC, may have unduly overstepped into the boundaries of Executive power insofar as it provided, among others, a determination as to which violations of RA 9165 may be subject to plea bargaining, including the corresponding lesser offense to which the accused may plead guilty to.

At this juncture, it is acknowledged that the guidelines provided in this case were explicitly made applicable only to plea bargaining in drugs cases. However, I respectfully opine that the Majority's resolution of this case might present a dangerous precedent for the court to intrude into substantive matters of plea bargaining of other crimes, which to again reiterate, are purely within the domain of the Executive Department – under the mistaken notion that all aspects of plea bargaining are purely procedural in nature, particularly in the light of the explicit pronouncement in the ponencia that any plea bargaining framework that the Court may promulgate should be accorded primacy.^[29] With all due respect, this should not be countenanced as it is unconstitutional.

The foregoing disquisition notwithstanding, I fully agree with the ponencia, insofar as it orders the remand of the criminal cases against Montierro and Baldadera to the respective courts of origin for further proceedings because said courts approved their respective plea bargaining proposals over the objections of the prosecution. Particularly, the respective courts of origin should be tasked to determine whether or not the prosecution in those cases still have any objections to the plea bargaining proposals of Montierro and Baldadera, taking into consideration the recent issuance of DOJ Circular No. 18 and in the event the prosecution and Montierro ancl Baldadera would enter into plea bargaining agreements, for the trial courts to determine the presence of all the requisites of plea bargaining on said agreement under the Rules, and pass judgment accordingly.

ACCORDINGLY, I vote to REMAND the criminal cases against Montierro and Baldadera.

---

^[1] See ponencia, p. 11.

^[2] See id. at 29 and 32.

^[3] Alschuler, Albert, "Plea Bargaining and Its History," Columbia Law Review, Vol. 79 No. 1, 1979, p. 3.

^[4] Alschuler, Albert, "Plea Bargaining and Its History," Columbia Law Review, Vol. 79, No. 1, 1979, p. 5.

^[5] 397 U.S. 742 (1970); see also Alschuler, Albert, "Plea Bargaining and Its History," Columbia Law Review, Vol. 79, No. 1, 1979, p. 6.

^[6] 397 U.S. 742 (1970). pp. 751-752.

^[7] Viano, Emilio C., Plea Bargaining in the United States: A Perversion Of Justice, Revue Internationale De Droit Pénal, vol. 83, no. 1-2, 2012, pp. 109-145. (https://www.cairn.info/revue-internationale-de-droit-penal-2012-1-page-109.htm last accessed on July 27, 2022.

^[8] Langbein, John H., Understanding the Short History of Plea Bargaining, Law & Society Review, vol. 13, no. 2, (Wiley, Law and Society Association), 1979, pp. 269-270. (https://www.jstor.org/stable/3053252 last accessed July 27, 2022.

^[9] Langbein, John H., Understanding the Short History of Plea Bargaining, Law & Society Review, vol. 13, no. 2, (Wiley, Law and Society Association), 1979, p. 270. (https://www.jstor.org/stable/3053252 last accessed July 27, 2022.

^[10] "Plea bargain," Legal Information Institute, Cornell Law School (https://www.law.cornell.edu/wex/plea_bargain last accessed July 27, 2022).

^[11] 404 U.S. 257 (1971).

^[12] 404 U.S. 257 (1971), pp. 262-263.

^[13] Smith, Douglas A., The Plea Bargaining Controversy, The Journal of Criminal Law and Criminology
Vol. 77, No. 3, 1986. (https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6538&context=jclc last accessed July 27, 2022; and Alschuler, Albert W., The Prosecutor's Role in Plea Bargaining, University of Chicago Law Review, Volume 36, Iss. 1, Article 3, 1968. (https://chicagounbound.uchicago.edu/uclrev/vol36/iss1/3/ last accessed on July 27, 2022).

^[14] Republic v. Sandiganbayan, G.R. Nos. 207340 and 207349, September 16, 2020. Emphasis and underscoring supplied.

^[15] See Rule 116, Section 2 of the Rules of Court.

^[16] See People v. Reafor, G.R. No. 247575, November 16, 2020; citations omitted. See also People v. Villarama, 285 Phil. 723 (1992); citations omitted.

^[17] Fernandez v. People, G.R. No. 224708, October 2, 2019.

^[18] Section 17, Article VII of the Constitution reads:

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

^[19] People v. Peralta, 435 Phil. 743 (2002), citing Webb v. De Leon, 317 Phil. 758 (1995). See also People v. Benedictus, 351 Phil. 560 (1998).

^[20] Montelibano v. Yap, 822 Phil. 263, 273 (2017). citing Bumatay v. Bumatayay, 809 Phil. 302 (2017).

^[21] Id.

^[22] See Section 1, Article VIII of the Constitution.

^[23] See Section 5 (5), Article VIII of the Constitution.

^[24] See ponencia, pp. 30-31.

^[25] See id. at 30.

^[26] See id. at 31.

^[27] Montelibano v. Yap, supra note 20.

^[28] See ponencia, p. 31.

^[29] See ponencia, p. 20.

---

CONCURRING AND DISSENTING OPINION

SINGH, J.:

In the consolidated cases, the accused Erick Montierro y Ventocilla (Montierro) and Cypher Baldadera y Pelagio (Baldadera) were charged with Violation of Section 5, Article II of Republic Act No. 9165, or the "Comprehensive Dangerous Drugs Act of 2002" (RA 9165), as amended, before the Regional Trial Court, Branch 54, Naga City (RTC).^[1] Both Montierro and Baldadera, prompted by the Supreme Court's decision in Estipona v. Lobrigo,^[2] filed their respective proposals for plea bargaining, adopting the provisions of A.M. No. 18-03-16-SC, or the "Plea Bargaining Framework in Drugs Cases."^[3][4] The prosecution objected to both of their proposals,^[5] citing the Department of Justice (DOJ) issued Department Circular No. 061-174 (DOJ Circular No. 61),^[6] which states that no plea bargain shall be allowed for a Violation of Section 5 on Illegal Sale of Dangerous Drugs.^[7]

The RTC, in separate Orders both dated 27 June 2018,^[8] granted Montierro and Baldadera's offer to plea bargain to the lesser offense of Violation of Section 12^[9] of RA 9165 for Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs, and overruled the prosecution's objection. The RTC thus convicted Montierro and Baldadera accordingly,^[10] which the Office of the Solicitor General (OSG) assailed through separate Petitions for Certiorari before the Court of Appeals.^[11]

The Court of Appeals dismissed the OSG's Rule 65 Petition in Montierro's case.^[12] There, the Court of Appeals agreed with the RTC's finding that DOJ Circular No. 61 encroached upon the Supreme Court's rule­making power.^[13] However, in Baldadera's case, the Court of Appeals granted the OSG's Petition and set aside the 27 June 2018 Order and the subsequent Judgment.^[14] The Court of Appeals held that the prosecution's consent is a condition sine qua non for the validity of Baldadera's offer to enter into a plea bargain.^[15]

Sometime during the pendency of the separate appeals^[16] filed by the OSG and Baldadera with this Court, the Philippine Judges Association (PJA) wrote the Court, expressing its concern that the Court's own ruling in People v. Reafor^[17] and People v. Borras^[18] will render the Plea Bargaining Framework adopted by the Court as a "dead-letter rule."^[19] The PJA also highlights the salutary aim of RA 9165 to rehabilitate drug offenders and achieve restorative justice.^[20]

The ponencia set aside the assailed rulings of the Court of Appeals.^[21] But it ordered that the cases be remanded to the court of origin "to determine: (1) whether the evidence of guilt is strong; and (2) whether Baldadera and Montierro are recidivists, habitual offenders, known in the community as drug addicts and troublemakers, have undergone rehabilitation but had a relapse, or have been charged many times."^[22]

The ponencia devised a set of guidelines to be observed with respect to plea bargaining in drug cases (the Guidelines).^[23] I had previously verbally recommended to the esteemed ponente Associate Justice Alfredo Benjamin S. Caguioa the addition of what is now Item No. 6 of the proposed Guidelines, for which I thank him. As a background, I handled a case while in the Court of Appeals where the RTC Decision approved a plea bargain which was contrary to both the Framework and the DOJ Circular. Hence, my request to add Item No. 6.

This Opinion, however, is my attempt to clarify what 1 believe is the nature of a plea bargain in relation to the Guidelines proposed.

The Guidelines and the concept of
plea bargaining in jurisprudence

The ponencia proposes a new set of guidelines applicable in plea bargaining in drug cases:

"To summarize the foregoing discussion, the following guidelines shall be observed in plea bargaining in drugs cases:

1. Offers for plea bargaining must be initiated in writing by way of a formal written motion filed by the accused in court.
   
   
2. The lesser offense which the accused proposes to plead guilty to must necessarily be included in the offense charged.
   
   
3. Upon receipt of the proposal for plea bargaining that is compliant with the provisions of the Plea Bargaining framework in Drugs Cases, the judge shall order that a drug dependency assessment be administered. If the accused admits drug use, or denies it but is found positive after a drug dependency test, then he/she shall undergo treatment and rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her penalty and the period of his/her after-care and follow-up program if the penalty is still unserved. If the accused is found negative for drug use/dependency, then he/she will be released on time served, otherwise, he will serve his sentence in jail minus the counselling period at rehabilitation center.
   
   
4. As a rule, plea bargaining requires the mutual agreement of the parties and remains subject to the approval of the court. Regardless of the mutual agreement ol the parties, the acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the court.
   
   
   1. Though the prosecution and the defense may agree to enter into a plea bargain, it does not follow that the courts will automatically approve the proposal. Judges must still exercise sound discretion in granting or denying plea bargaining, taking into account the relevant circumstances, including the character of the accused.
      
   
   
5. The court shall not allow plea bargaining if the objection to the plea bargaining is valid and supported by evidence to the effect that:
   
   
   1. the offender is a recidivist, habitual offender, known in the community as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse, or has been charged many times; or
      
      
   2. when the evidence of guilt is strong.
      
   
   
6. Plea bargaining in drugs cases shall not be allowed when the proposed plea bargain does not conform to the Court-issued Plea Bargaining Framework in Drugs Cases.
   
   
7. Judges may overrule the objection of the prosecution if it is based solely on the ground that the accused's plea bargaining proposal is inconsistent with the acceptable plea bargain under any internal rules or guidelines of the DOJ, though in accordance with the plea bargaining framework issued by the Court, if any.
   
   
8. If the prosecution objccts to the accused's plea bargaining proposal due to the circumstances enumerated in item no. 5, the trial court is mandated to hear the prosecution's objection and rule on the merits thereof. If the trial court finds the objection meritorious, it shall order the continuation of the criminal proceedings.
   
   
9. If an accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof then the law on probation shall apply."^[24] (emphasis supplied)

In criminal cases, plea bargaining is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval.^[25] In the landmark case of Estipona v. Lobrigo,^[26] the Court categorically declared that plea bargaining is a rule of procedure and "is a give-and-take negotiation."^[27]

This characteristic of mutuality is self-evident from Section 2, Rule 116 of the Revised Rules of Criminal Procedure:

"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." (emphasis and underscoring supplied)

In Daan v. Sandiganbayan,^[28] the Court categorically enumerated the requisites for the validity of a plea bargain.

"Section 2, Rule 116 of the Rules of Court presents the basic requisites upon which plea bargaining may be made, i.e., that it should be with the consent of the offended party and the prosecutor, and that the plea of guilt should be to a lesser offense which is necessarily included in the offense charged. The rules however use the word may in the second sentence of Section 2, denoting an exercise of discretion upon the trial court on whether to allow the accused to make such plea. 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." (citations omitted; emphasis supplied)

Thus, for there to be a valid plea bargaining agreement, the Court has previously ruled that the following factors must concur: (1) the plea bargain offered by the accused; (2) the acceptance of such plea by the prosecution; and (3) the approval by the court, in the exercise of its sound discretion.^[29] Absence of any of the three renders the plea bargain ineffectual.

This interpretation has been highlighted long before in People v. Hon. Villarama,^[30] a case involving the old "Dangerous Drugs Act of 1972,"^[31] where the Court categorically declared:

"The counsel for the private respondent argues that only the consent of the fiscal is needed in crimes involving, violation of RA 6425 as amended because there is no offended party to speak of and that even the latter's consent is not an absolute requirement before the trial court could allow the accused to change his plea.

We do not agree. The provision of Section 2, Rule 116 is clear. The consent of both the Fiscal and the offended party is a condition precedent to a valid plea of guilty to a lesser offense. The reason for this is obvious. The Fiscal has full control of the prosecution of criminal actions. Consequently, it is his duty to always prosecute the proper offense, not any lesser or graver one, when the evidence in his hands can only sustain the former." (citations omitted; emphasis supplied)

The relevance of the ruling in Villarama cannot be overemphasized. Thus, in People v. Borras,^[32] the Court reiterated the need, first and foremost, for the consent of the offended party and the prosecutor:

"Contrary to the position taken by the trial court and the Court of Appeals, the conformity of the prosecutor to the proposed plea bargaining in drugs cases is not optional, nay, to be disregarded. For 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. As guardian of the rights of the people, the State files the criminal action in the name of the People of the Philippines. The prosecutor who represents the government is duty bound to defend the public interests, threatened by crime, to the point that it is as though lie or she were the person directly injured by the offense. Viewed in this light, the consent of the offended party, i.e., the State, will have to be sccured from the prosecutor who acts on its behalf."^[33] (citations omitted; emphasis supplied)

The rationale for making the acceptance of the plea bargain of the prosecution a condition precedent for the validity of a plea bargain lies, as afore-quoted, in the fact that the prosecution exercises full control over the trial of the accused – which necessarily includes the indictment of the accused for the proper offense.^[34]

Consequent to the sine qua non nature of the prosecution's consent to the offer is the fact that an accused does not have any vested right to compel the prosecution to accept the plea bargain. Even when the consent is given, the court is not automatically mandated by the Rules of Court to accept the plea bargain. Again, Estipona is instructive:

"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. 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."^[35] (citations omitted; emphasis supplied)

Where the prosecution does not consent, the Court En Banc held in Sayre v. Hon. Xenos^[36] that the same constitutes a continuing objection to the offer of plea bargain:

"Nonetheless, a plea bargain still requires mutual agreement of the parties and remains subject to the approval of the court. The acceptance of an offer to plead guilty to a lesser offense is not demand able by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the trial court.

x x x.

The use of the word 'may' signifies that the trial court has discretion whether to allow the accused to make a plea of guilty to a lesser offense. Moreover, plea bargaining requires the consent of the accused, offended party, and the prosecutor. It is also essential that the lesser offense is necessarily included in the offense charged.

Taking into consideration the requirements in pleading guilty to a lesser offense, We find it proper to treat the refusal of the prosecution to adopt the acceptable plea bargain for the charge of Illegal Sale of Dangerous Drugs provided in A.M. No. 18-03-16-SC as a continuing objection that should be resolved by the RTC. This harmonizes the constitutional provision on the rule­making power of the Court under the Constitution and the nature of plea bargaining in Dangerous Drugs cases. DOJ Circular No. 27 did not repeal, alter, or modify the Plea Bargaining Framework in A.M. No. 18-03-16-SC."^[37] (citations omitted; emphasis and underscoring supplied)

To place it succinctly, Section 2, Rule 116 requires the conformity of the prosecution to the reduced plea of the accused as a condition precedent for the plea bargain to be considered valid. I believe this involves a 2-step process: first, the prosecution must consent to the accused's proposal for a plea bargain; and second, the trial court must approve or disapprove the same. Absent the first step, there is no occasion for the trial court to exercise its discretion to approve or disapprove the proposal. How can there be a plea bargain agreement if both parties do not consent? Where is the "mutuality of advantage" emphasized in Estipona?

Thus, I agree with the proposed Guidelines only if premised on this 2-step process, and, in particular, that Item No. 7, which speaks of the objection of the prosecution, should reflect the indispensability of the prosecution's consent in a valid plea bargain, subject to the three requisites abovementioned.

Plea bargain and the court's
jurisdiction over the issues and the
relief

In fact the absence of offer and acceptance, and consequently, the absence of any plea bargain, prevents the court from acquiring jurisdiction over the specific issue that plea bargain presents and the jurisdiction over the specific relief sought by both the accused and the prosecution through such an agreement.

It is interesting to note that plea bargaining, as a distinct judicial procedure, occurs during arraignment. It is during arraignment that the accused is asked to enter his or her plea.

It is elementary that a court acquires jurisdiction over the issues only after a joinder thereof.^[38] Generally, jurisdiction over the issues pertains to a tribunal's power and authority to decide over matters which are either disputed by the parties or simply under consideration.^[39] In civil cases, the court's jurisdiction over the issues is generated by the joinder of issues raised in the pleadings, or by their agreement in a pre-trial order or stipulation, or by their implied consent, as by the failure of a party to object to evidence on an issue not covered by the pleadings.^[40]

In contrast, in criminal cases, the joinder of issues occurs during arraignment, precisely at the point where the court asks the accused whether he or she is guilty of the crime charged.^[41] When the accused answers in the affirmative, the issues are joined and the confession of the accused operates to discharge the prosecution of the regular burden attached to proving his or her guilt beyond reasonable doubt through the rigors of the ordinary course of trial.^[42] Stated differently, "the entry of plea during arraignment x x x signals joinder of issues in a criminal action."^[43] The difference of joinder in issues in civil cases and criminal cases lies in the fact that the accused enjoys the constitutional presumption of innocence, with the prosecution bearing the heavy burden of proving his or her guilt beyond reasonable doubt.^[44]

What issue is before the court when an offer to enter into plea bargaining is accepted by the prosecution? The propriety of the grant of the plea bargain is the remaining issue. It is with respect to this issue that the court's "exercise of sound judicial discretion" becomes of relative import.

It is my humble view that when no plea bargain is presented, the trial court does not acquire any jurisdiction over the issue of the propriety of a plea bargain. Consequently, the relief sought by both the accused and the prosecution in recommending the plea bargain, that is, that a judgment be rendered without the benefit (indeed, the burden) of an exhaustive trial by the court, never materializes. The court therefore need not trouble itself with its jurisdiction over the relief afforded by plea bargaining.

The benefits of plea bargaining are not inconsequential. Even the Court has recognized the same:

"x x x. The essence of the agreement is that both the prosecution and the defense make concessions to avoid potential losses. Properly administered, plea bargaining is to be encouraged because the chief virtues of the system – speed, economy, and finality – can benefit the accused, the offended party, the prosecution, and the court."^[45] (citations omitted)

To the undersigned's mind, this is the underlying paradigm that should govern the Court's understanding of plea bargaining vis-à-vis the requisites of offer and acceptance. Such a paradigm reflects the basic character of plea bargaining – mutuality.^[46]

I understand that these issues arose because of the contrary DOJ Circular vis-à-vis the Framework for Plea Bargaining that the Court issued. Although now rendered moot with the issuance of the latest DOJ Circular harmonizing their rules with the Court's Framework, I agree that we can face the same situation again in the future. Estipona is not a blanket justification – Estipona clearly held only that plea bargaining is a procedural device.^[47] But Estipona did not change the well-settled delineation of the prosecutor's and the judge's respective roles in a criminal proceeding: the prosecutor decides what and who to charge, and the judge determines guilt or innocence, or in a plea bargain, approves or disapproves the same.^[48]

Yes, I agree that the DOJ cannot pass rules regarding the nature of and procedure for plea bargaining. But in my respectful opinion, based on the well-established rules regarding our respective jurisdictions, the DOJ may issue rules to guide its prosecutors as to what are acceptable plea bargain proposals, akin to the guidance provided in the amount of bail to be recommended for each crime through the DOJ Bailbond Guide. When these rules are obeyed and followed by the trial prosecutors, they are merely performing their duties as mandated by law, and by our own jurisprudence. Hence, if they object to a proposal for plea bargain, they act within their authority.

Nevertheless, as already mentioned, in view of the special circumstances involving drug offenses, the ponencia proposes the Guidelines to avoid arbitrary and dilatory objections from the prosecution.

But the issuance of these Guidelines for me is not an exercise of any blanket authority on the part of the Court to control the results of plea bargaining. Instead, I opine that it arises out of the discretion given to the judge to approve or disapprove the proposal for plea bargain. The Guidelines will be instructive to our judges in the exercise of such discretion.

The Guidelines and the Fallo

It is my considered view that Item No. 7 of the Guidelines should be deleted. Authorizing the trial court to overrule the prosecution's objection goes against the fundamental nature of a plea bargaining agreement and the respective roles of the prosecution, the defense, and the court in such a process.

On the merits of the two Petitions, I respectfully submit that the Decision dated 27 February 2020 and the Resolution dated 27 October 2020 of the Court of Appeals appealed in G.R. No. 254564, involving Montierro should be nullified. I thus CONCUR with respect to setting aside these issuances of the Court of Appeals. Consequently, the Order dated 27 June 2018, the Order dated 13 August 2018, and the Judgment dated 29 August 2018 issued by the Regional Trial Court, Branch 24, Naga City, in Criminal Case No. 2017-0082 should all be struck down for granting Montierro's offer to plea bargain despite the prosecution's objection.

On the other hand, the Decision dated 1 July 2020 and the Resolution dated 26 November 2020 of the Court of Appeals concerning Baldadera should be affirmed, for ruling that the prosecution's consent is a condition sine qua non in plea bargaining. I respectfully DISSENT from nullifying these issuances for being consistent with the undersigned's analysis.

Finally, the Court's orders to remand the cases to their respective courts of origin for determination of the factors in Item No. 5 of the Guidelines, and to require Montierro and Baldadera to submit to a drug dependency test should be deleted because these no longer find support in the absence of a valid plea bargain.

---

^[1] Rollo (G.R. No. 254974), p. 53; Rollo (G.R. No. 254564) p. 104.

^[2] G.R. No. 226679, 15 August 2017.

^[3] See Office of the Court Administrator (OCA) Circular No. 90-2018 dated 4 May 2018 at https://oca.judiciary.gov.ph/wp-content/uploads/2018/05/OCA-Circular-No.-90-2018.pdf. Last accessed 1 July 2022.

^[4] Rollo (G.R. No. 254974), p. 54; Rollo (G.R. No. 254564) pp 78-79.

^[5] Rollo (G.R. No. 254974), pp. 55-56; Rollo (G.R. No. 254564) p 74.

^[6] Department  Circular No. 061-174, Re: Guidelines on Plea Bargaining Agreement for R.A. No. 9165 Otherwise Known as the "Comprehensive Dangerous Drugs Act of 2000 [sic]," at https://www.doj.gov.ph/files/2017/DCs/DC2017NOV061%20Guidelines%20on%20Plea%20Bargaining%202dtd%2021%20Nov%20217.pdf. Last accessed 1 July 2022.

^[7] Id. at 2.

^[8] Rollo (G.R. No. 254974), pp. 69-72; Rollo (G.R. No. 254564), pp. 74-77.

^[9] REP. ACT NO. 9165, as amended, sec. 12, viz.: "Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. – The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body: Provided, That in the case of medical practitioners and various professionals who are required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession, the Board shall prescribe the necessary implementing guidelines thereof.
The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act." (underscoring supplied)

^[10] Rollo (G.R. No. 254974), pp. 82-83; Rollo (G.R. No. 254564), pp. 90-91.

^[11] Rollo (G.R. No. 254974), pp. 37-45 (penned by Associate Justice Germano Francisco D. Legaspi, with Associate Justices Franchito N. Diamante and Walter S. Ong concurring); Rollo (G.R. No. 254564), pp. 36-50 (penned by Associate Justice Ramon M. Bato, Jr., with Associate Justices Zenaida T. Galapate-Laguilles and Florencio M. Mamauag, Jr. concurring).

^[12] Rollo (G.R. No. 254974), p. 44.

^[13] Id.

^[14] Rollo (G.R. No. 254564), p. 49.

^[15] Id. at 47.

^[16] Rollo (G.R. No. 254564), pp. 3-31 and Rollo (G.R. No. 254974), pp. 11-34.

^[17] G.R. No. 247575, 16 November 2020.

^[18] G.R. No. 250296, 15 March 2021.

^[19] Rollo (A.M. No. 21-07-16-SC), p. 1.

^[20] Id. at 2.

^[21] Ponencia, p. 38.

^[22] Id. at 38-39.

^[23] Id. at 37-38.

^[24] Id.

^[25] People v. Borras, G.R. No. 250295, 15 March 2021.

^[26] G.R. No. 226679, 15 August 2017.

^[27] Id.

^[28] G.R. Nos. 163972-77, 28 March 2008.

^[29] See Sayre v. Hon. Xenon, G.R. Nos. 244413 & 244415-16, 18 February 2020.

^[30] G.R. No. 99287, 23 June 1992.

^[31] REP. ACT NO. 6425.

^[32] G.R. No. 250295, 15 March 2021.

^[33] Id. citing Estimona v. Hon. Lobrigo, G.R. No. 226679, 15 August 2017; People v. Villarama, G.R. No. 99287, 23 June 1992.

^[34] RULES OF COURT, rule 110, sec. 5.

^[35] Estipona v. Hon. Lobrigo, G.R. No. 226679, 15 August 2017.

^[36] G.R. Nos. 244413, 244415-16, 18 February 2020.

^[37] Id.

^[38] See Bernabe et al. v. Vergara, G.R. No. L-48652, 16 September 1942; Reyes v. Diaz, G.R. No. L-48754, 26 November 1941.

^[39] Denila v. Republic et al., G.R. No. 206077, 15 July 2020.

^[40] See RULES OF COURT, Rule 9, Sec. 5; De Joya v. Judge Marquez, G.R. No. 162416, 31 January 2006, 516 Phil. 717; Sta. Ana Dy et al. v. Yu et al., G.R. No. 202632, 8 July 2015, 763 Phil. 491.

^[41] People v. Ang et al., G.R. No. 231854, 6 October 2020.

^[42] Nuance should not be forgotten that notwithstanding the plea of guilty by the accused the prosecution under the Rules of Court, is still required to, for instance, prove his guilt and the precise degree of culpability, in capital offenses. See RULES OF COURT, Rule 116, Sec 3.

^[43] People v. Ang et al., G.R. No. 231854, 6 October 2020.

^[44] Id.

^[45] Sayre v. Hon. Xenos, G.R. Nos. 244413 & 244415-16, 18 February 2020.

^[46] Id.

^[47] Estipona v. Hon. Lobrigo, G.R. No. 226679, 15 August 2017.

^[48] See RULES OF COURT, rule 110, sec. 5; rule 120, sec. 1; Mendoza v. People and Juno Cars, Inc., G.R. 197293, 21 April 2014, 733 Phil. 603, 610, citing People v. Castillo and Mejia, 607 Phil. 754 (2009);  Rural Bank of Mabitac, Laguna, Inc. v. Canicon and Espeleta, G.R. No. 196015, 27 June 2018, 834 Phil. 346.