The right to bail. With the proliferation of persons ordered arrested in relation to the Napoles controversy, more and more people, all pleading innocence, are likely to find themselves in detention. Nobody wants to be deprived of liberty of movement. Fortunately there is in our law the guarantee of the right to bail: “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties.” Let us try to understand the scope of this protection.
The provision means that if the state wants to deprive a person of this right to liberty, the state must prove in a hearing that the detainee does not deserve to be released on bail. Every accused is presumed to have the right to be released on bail. Hence, for instance, if Sen. Bong Revilla, who is now in detention, wants release on bail, the presumption of having the right to be released is on his side. The state will have to prove in a hearing before the court that Senator Revilla does not deserve to be released.
What evidence must the state show to prove that Senator Revilla does not deserve to be released on bail or has already lost his constitutional right to be released on bail? The state must prove that the charge against him is by law punishable by reclusion perpetua and that the evidence points to a judicial decision sentencing him to reclusion perpetua.
Every single one of the respondent senators claims that there is no sufficient evidence to find him guilty, much less that his guilt is punishable by reclusion perpetua. Big-time lawyers have been hired to tangle with government prosecutors. With equal certainty the state is claiming that there is a mountain of evidence. Necessarily the ballgame will move to the Sandiganbayan. Meanwhile, the Sandiganbayan has announced that it can handle the cases without need for the assistance of special courts. We will wait for what the court has to say.
The Judicial and Bar Council. Under the 1935 Constitution all appointments to the judiciary needed confirmation by the Commission on Appointments. Under this system, the complaint of those aspiring to be members of the judiciary was that they had to kowtow to members of the legislative body in order to win confirmation.
The solution given under the 1973 Constitution to this complaint was no solution at all. Aspiring judges had a choice between the frying pan and the fire. The 1973 Constitution said that the president could appoint anybody he chose from among those who possessed the legal qualifications. There was no check on the president’s power. The system assured the president of judges loyal to him.
As a solution to the dissatisfaction with the 1935 and the 1973 appointment process, the 1987 Constitution now limits the president’s choice to those contained in a list given to him by the Judicial and Bar Council (JBC). The creation of the JBC was one of the major innovations of the 1987 Constitution.
The main sponsor of the JBC was former chief justice Roberto Concepcion. The focus of the debate on the creation of the council was to ensure that it would not be a body controlled by the president. The principal opponent of the proposed composition was the late senator Francisco “Soc” Rodrigo who argued that since a majority of the council members would be appointees of the president, the council could be beholden to the president. The Constitutional Commission, therefore, attempted to balance the membership of the JBC. In the end, the Constitutional Commission arrived at this composition: “A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”
One will notice that the composition does not escape the hand of the president. The justice secretary is the president’s man, and the regular members (a representative of the Integrated Bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector) are appointed by the president with the consent of the Commission on Appointments. Will such a composition guarantee the independence of the council? Will it assure the public that the members of the judiciary from the Supreme Court to the lowest level will be legal eagles of the highest quality?
There is no easy answer to that question. It will depend partly on the competence and integrity of the council members. Recently the JBC was put to the test. When it sent to the President a list from which to appoint a member of the Sandiganbayan, the Palace, not happy with the list, returned it to the council for review.
The public should be pleased with the reply of Chief Justice Maria Lourdes Sereno. She said: “We do not read anything in the Constitution that authorizes the JBC, once it submits a list of recommendees, to revisit the same, even under changed circumstances. We also see no process for ‘confirmation’ by the JBC of any list of
recommendees, if the list has been transmitted officially through the appropriate channels,” as indeed it had been.
Happily, the Palace backed off and has not insisted on what it was asking for.