Humanitarian ‘limitation’?

Apparently stung by the public outrage at its perceived part in the egregious failure of the justice system that led to the death of baby River Nasino after she was separated from her detained mother, the Supreme Court is pushing back at the criticisms and insisting it did all it could. No less than Chief Justice Diosdado Peralta has seen fit to break his customary silence to defend the court’s conduct: “Hindi naman kami nagpabaya (We weren’t negligent). We tried to help her,” he said at a recent online press conference.

The Supreme Court, according to critics, shamefully let down River and her mother, Reina Mae Nasino, when it failed to act with dispatch on the petition to release Reina Mae and 21 other prisoners vulnerable to COVID-19 in the country’s notoriously congested jails.

Nasino, an urban poor activist, was already pregnant when she was arrested in November 2019 and charged with the nonbailable offense of unlawful possession of firearms and explosives. She filed her plea in April, but the Supreme Court managed to vote on the petition only on July 28, and only for it to remand the case to the trial court, which subsequently denied Nasino’s hospital stay and separated her from her baby, to tragic results.

Peralta’s first argument is that the high court did act expeditiously on the case, “as early as July 28.” But, in fact, the decision was announced by the Supreme Court Public Information Office only on Sept. 10, a month and several days later.

Next, Peralta argues that the court faced “limitations”: “Kung meron lang sanang power ang SC to go against the Constitutional prohibition na hindi pwedeng mag-bail kung capital punishment ’yan. Kung nilagay ’yan na they can be released if the evidence of guilt is weak for humanitarian reason, agad-agad ’di na kailangan ng petition niyan. But may limitations eh. So that’s what happened.”

In June, however, Peralta was categorical in citing a different reason for the delay in the Nasino case: “Unfortunately, the member in charge cannot come now to Manila,” he said. “There’s no flight yet from his place in Visayas coming to Manila.” This time, the chief magistrate is saying it was because Nasino was charged with a capital offense, and hence could not be allowed bail even for humanitarian considerations.

Is that rule absolute? Is the Supreme Court really that powerless when it comes to this “limitation”? Not in the case of Juan Ponce Enrile, who, it must be recalled, was granted bail in 2015 despite facing the nonbailable charge of plunder, on the basis of, as then Associate Justice Lucas Bersamin wrote, “his solid reputation in both his public and private lives, his long years of public service, and history’s judgment of him being at stake…”

But more than those supposed virtues, the court was able to summon, and specifically cite, humanitarian considerations in deciding to spring the 96-year-old former senator from jail—despite Enrile’s camp not having even cited that basis in its petition. This was “special accommodation” plain and simple, declared Associate Justice Marvic Leonen in his searing dissent. “Bail for humanitarian considerations is neither presently provided in our Rules of Court nor found in any statute or provision of the Constitution,” Leonen said. “The special grant of bail, due to medical conditions, is unique, extraordinary, and exceptional.”

Former chief justice Artemio Panganiban had also warned about the impact of such a precedent in 2014, writing: “If the Supreme Court… frees him [Enrile] on bail, then for the same reason, all those currently accused of capital offenses, like former President Arroyo and the Ampatuan family as well as Senators Revilla and Estrada, should also be freed and granted bail while awaiting the ruling of the trial courts on whether the evidence of guilt in their respective cases is strong.”

In the case of another high-profile accused, Imelda Marcos, the Sandiganbayan would in fact cite the same humanitarian grounds the Supreme Court felt so strongly about in the Enrile case to grant Imelda bail—after it had convicted her on seven counts of graft. “Taking into account primarily the fact that she is of advanced age and for health reasons, consistent with the doctrine in Enrile vs Sandiganbayan, bail is allowed for these 7 cases,” the Sandiganbayan 5th Division said.

Too bad Nasino is neither Enrile, Imelda, nor any other moneyed, well-connected fixture of the ruling class with the likes of Estelito Mendoza as lawyer, their unfortunate tangle with the law able to move the justices’ hearts. Her case underscores, precisely and terribly, the selective compassion that doomed baby River, and that dooms so many more ordinary Filipinos.