Special pleading

After the Ombudsman filed the first wave of plunder charges in the billion-peso pork barrel scam case the other Friday, the most senior accused, 90-year-old Sen. Juan Ponce Enrile, told reporters he was ready to be arrested. It didn’t matter whether he would be detained in an ordinary cell or at the hospital, he said. “I’m prepared. Even if I’ll die in my cell, it’s okay. At my age, I’ve gone through life already.”

When, a week later, the Sandiganbayan justices raffled off the consolidated plunder and graft cases (Enrile’s will be heard by the Third Division, headed by Presiding Justice Amparo Cabotaje Tang), his lawyers immediately filed a petition to dismiss the cases and, failing that, to grant him bail.

Plunder is a nonbailable offense, but Enrile argued that his advanced age and various ailments (backed by three medical certifications) required that he undergo “frequent, regular monitoring and checkup.”

To be sure, Enrile’s earlier show of bravado was accompanied by a declaration of candor. “If you are a seasoned lawyer, you will use all the available remedies to defend yourself,” he said then. This explains both the petition to dismiss and the prayer to be granted bail. All the same, the request to be given special consideration rankles.

We do not mean to say that the law cannot show mercy; humanitarian considerations form part of any judge’s decision-making process. Indeed, age is specifically cited as a possible mitigating circumstance in the Revised Penal Code (when the accused is less than 18 or over 70 years old) and listed in the Revised Rules and Regulations of the Board of Pardons and Parole as a possible factor in any grant of a conditional pardon, commutation of sentence or parole (as is serious illness).

But the law seems to be silent on the use of advanced age in any petition for bail. Enrile’s motion, then, may end up being precedent-setting. If granted, it will provide yet more proof that powerful people get special treatment. (In contrast, a pregnant detainee like Andrea Rosal lost her baby precisely because she could not demand humanitarian treatment.)

But if Enrile’s petition for bail in a nonbailable crime is a plea for special treatment, Sen. Jose “Jinggoy” Estrada’s opposition to special courts is a logical fallacy known as special pleading. Dictionaries define the fallacy as an “argument in which the speaker deliberately ignores aspects that are unfavorable to their point of view” or a “misleading argument that presents one point or phase as if it covered the entire question at issue.”

Consider Estrada’s statement after he heard the news that the cases had been raffled off without the use of special divisions, as petitioned by Ombudsman Conchita Carpio Morales. (Estrada’s plunder and graft cases will be heard by the Fifth Division, led by Associate Justice Roland Jurado.) “In special divisions, the justices will be handpicked. Even if you look at history, all special divisions convict the accused, from Yamashita’s time to Ninoy’s time to my father’s time,” Estrada said.

We wish to set the record straight. It is simply not true that “all special divisions” or specially established courts “convict the accused.” Three Nazi leaders were acquitted at the Nuremberg trials; special courts established under the United Nations umbrella have acquitted a number of accused.

But there’s an example that Estrada is intimately familiar with. A special division of the Sandiganbayan found his father, ex-President Joseph Estrada, guilty of plunder in 2007, but the dispositive portion of the court’s plunder decision actually reads as follows:

“WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER defined in and penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the prosecution to prove and establish their guilt beyond reasonable doubt, the Court finds the accused Jose ‘Jinggoy’ Estrada and Atty. Edward S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.”

In other words, a special division of the Sandiganbayan acquitted Jinggoy Estrada of the crime of plunder in 2007. We wonder: Is amnesia a mitigating circumstance too?