In the middle of last week one of the lawyers working for the release on bail of former President Gloria Macapagal-Arroyo came to me asking if there was anything I could do to help. I said that, much as I would like to, at least for humanitarian considerations, I was afraid that anything I said would just be counterproductive for the reason that I am considered kapamilya. As many know, one of my nephews is now married to Luli Arroyo. For this reason, positions I took in the past were sometimes brushed aside brainlessly even by some whom I normally respect simply because a Bernas has become a member of the Arroyo family. This is insanity, of course, but it is part of life.
After my visitor left I thought about the purpose of her visit and I concluded that there should be no harm if I discussed in general terms what the right to bail is and who may be constitutionally denied the right to bail. My intention would be to reach the minds of those who are interested in forming their own judgment.
The raft of anti-GMA cases, of course, is related to the locally and internationally touted campaign for daang matuwid. (My visitor last week talked in general terms to me about the plunder case against GMA arising from official actions connected with the Philippine Charity Sweepstakes Office; other cases had already been dismissed by the Sandiganbayan.) Within this broad issue I shall limit myself to the legalities involved in the right to bail specifically in a plunder case.
The right to bail, as every first-year law student will know, is a mode short of detention which insures that an accused will make himself or herself available when needed in a court proceeding. The right to bail is an important support to the constitutional right to be presumed innocent because it enables the person released to make proper preparations for defense.
It is very clear in the Constitution that bail can be denied only when two narrow grounds are verified by a court in a hearing where the parties are heard. First, the crime charged must be punishable by death or reclusion perpetua. (Jurisprudence has interpreted the provision as including not just reclusion perpetua but also life imprisonment, a penalty strictly speaking different from reclusion perpetua.) Second, the evidence of guilt must be strong. The burden of proof is laid on the prosecution. Unless both of these requirements are satisfied, release on bail is a matter of right no matter how serious the accusation might sound.
The penalty required by law can easily be verified simply by looking into what the Penal Code says or what the special law which imposes life imprisonment says. The trickier part is determining whether the evidence of guilt is strong. A judicial hearing is required for this.
What does “strong evidence of guilt” mean? The Supreme Court has defined it as “proof evident” or “evident proof” which means “clear, strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the offense has been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is administered.” It is also referred to as “Presumption great which” exists “when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of any other conclusion.”
In the case of the crime of plunder, for which GMA is accused, what must be proved by strong evidence for the court to deny bail? This question was extensively discussed by the Supreme Court in the plunder case against former President Joseph Estrada. Plunder is a crime which can be committed only by a public officer. It is committed when a public officer amasses ill-gotten wealth amounting to at least P50 million (not a mind-boggling amount by current reckoning) through a “combination or series of illegal acts.”
What series or combination of acts might be proved? The Plunder Law enumerates six clusters of criminal acts. On the basis of this list, the information against GMA makes out three. In general, they are: illegal diversion of funds, raiding the public treasury and unjust enrichment by taking advantage of official position.
To deny GMA bail, the prosecution must prove any one of these charges by “evidence strong” or “presumption great.” And the decision will be made not just by any court but by the Sandiganbayan.
We await the outcome of Round 10. GMA has won earlier rounds. I understand from my visitor last week that GMA is now fighting this round at 88 pounds.