In his column on Dec. 11, retired Supreme Court chief justice Artemio Panganiban wrote that in July 2016, Gloria Macapagal Arroyo “was acquitted, among other reasons, because the Supreme Court ruled, for the first time, that in a prosecution for plunder, the ‘main plunderer’ must be identified in the information and proven during the trial before any alleged conspirator can be convicted. Again, this novel ruling was penned also by CJ Bersamin and is now binding jurisprudence in plunder cases.”
In the legal community, the Supreme Court’s pronouncement is law. Every court, including the Supreme Court itself, is bound by the Bersamin doctrine.
The retired chief justice thinks the lawyers of former first lady Imelda Marcos are going straight to the Supreme Court in the hope that another new doctrine that would acquit Mrs. Marcos would be handed down by the Supreme Court. That is a distinct possibility given the present composition of the Supreme Court, and with Lucas Bersamin now the chief justice.
In August 2015, then Associate Justice Bersamin penned the decision that “Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.”
Based on that pronouncement, the Supreme Court ruled that the fragile state of Sen. Juan Ponce Enrile’s health presented a compelling justification for his admission to bail.
Associate Justice Marvic Leonen said the decision was contrary to the rule of law. In his dissenting opinion, he wrote that the decision to grant Enrile bail for humanitarian reason “will usher in an era of truly selective justice not based on clear legal provisions, but one that is unpredictable, partial and grounded on the presence or absence of human compassion.” Enrile did not even present his feeble health as an argument for his release from detention.
Leonen surmised the decision was “especially tailored” for Enrile. In my commentary in this space, I wrote that the decision was custom-designed for former president Arroyo. I pointed out that Bersamin, who was appointed to the Supreme Court in 2009 by Arroyo, proposed the granting of bail to Enrile because of the latter’s “solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him.” Only Arroyo among the many ailing lolos and lolas in prisons at the time could be described similarly.
That is why no human rights lawyer had the audacity to petition for bail for the hundreds of enfeebled septuagenarians and octogenarians languishing in penal colonies and city jails on the basis of the new law, because none of those infirm grandparents had a reputation comparable to those of Enrile and Arroyo; nor has any of them had long years of public service.
That is why when former first lady Imelda Marcos was found guilty of seven counts of graft by the Sandiganbayan, no political adversary of the Marcoses, no high-profile victim of martial law, no political analyst, no ordinary citizen expected her to spend a day in jail.
It is said that Supreme Court justices are to interpret the law, not to make the law. But it also said that if the law were that easy to interpret and apply, the Supreme Court would have no cases to decide. Supreme Court justices do make law through their reasons for their interpretations. What the Supreme Court should have are justices who are nonpartisan, independent and fair.
In the cases of the grant of bail to Enrile and the acquittal of Arroyo, there were no laws to interpret. Lucas Bersamin simply wrote his own opinions, which recognizably were favorable to his patron Gloria Macapagal Arroyo, and his complaisant colleagues in the Supreme Court endorsed those opinions willingly and gladly to become laws of this afflicted land.
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Oscar P. Lagman Jr. has been a keen observer of Philippine politics since the 1950s.