As required by the Constitution, the justices composing the First and Fifth Divisions of the Sandiganbayan (SBN) “personally” determined the existence of “probable cause” in the plunder and graft cases arising out of the pork barrel scam.
Arrest and jurisdiction. The determination of probable cause is a mandate that the SBN performed without need of being asked by any party. However, the accused (like Sen. Juan Ponce Enrile and others) are not barred from filing a motion to determine probable cause, and from arguing why the documents submitted by the Office of the Ombudsman do not show allegations or facts that legally constitute any crime, or that link them to the alleged crimes.
Having found probable cause, the two divisions issued warrants for the arrest of Senators Bong Revilla and Jinggoy Estrada and their coaccused. Their actual arrest (or surrender) is the act that conferred jurisdiction on the SBN over the “person” of the accused and allowed it to move on.
If the accused (or any of them) were not arrested (or did not surrender), the SBN would not acquire jurisdiction and they would remain “at large.” Unless the SBN takes jurisdiction over the person of the accused, no further proceedings can take place, and the accused-at-large cannot, as a rule, avail himself or herself of any judicial relief.
Hearings for bail. Our Constitution values individual freedom and guarantees the right to bail for all accused, except those charged with a capital offense punishable with life imprisonment. Hence, those charged with graft only posted bail. However, those charged with plunder, a capital offense, were detained at the place chosen by the SBN Division that issued the arrest warrant.
Detention is neither a finding of guilt nor a penalty for a crime. The accused are still presumed innocent but the risk of flight is high “when the evidence of guilt is strong.” In other words, the law assumes that the accused would flee rather than face the risk of conviction and
incarceration for life. So, to prevent such flight, the law authorizes detention pending trial.
Since detention is not a penalty, the SBN is given wide discretion to determine its location. Normally, courts use the city or provincial jails (which are so dingy and crowded that inmates literally stand up most of the time and take turns to sleep).
But when there is little risk of flight due to the accused’s old age, poor health or physical disability, the detention may be in a hospital (as in the case of President Gloria Macapagal-Arroyo) or a farm (as in the old plunder case of President Joseph Estrada).
New SC resolution. The Constitution provides only one ground to grant bail in capital offenses: failure of the prosecution to prove that “the evidence of guilt is strong.” In my humble view, Congress or the judiciary cannot modify this sole ground or add another ground. However, the Supreme Court has the exclusive power to issue rules of procedure to prove this ground.
Exercising this exclusive power, the Supreme Court issued a resolution last March 18 (AM No. 12-11-2-SC) speeding up hearings for bail. This new rule gives the prosecution the option of “adopting the affidavits (of the whistle-blowers and other witnesses) executed during the preliminary investigation as their direct testimony,” in lieu of the old lengthy question-and-answer procedure.
Instead of being passive, the trial court “shall examine the witnesses on their direct testimonies or affidavits to ascertain if the evidence of guilt is strong. The court’s questions need not follow any particular order and may shift from one witness to another. The court shall then allow counsels from both sides to examine the witnesses as well. The court shall afterwards hear the oral arguments of the parties on whether or not the evidence of guilt is strong.”
To stress speed, the Supreme Court’s guidelines further direct, “Within forty-eight (48) hours after hearing, the court shall issue an order containing a brief summary of the evidence adduced before it, followed by its conclusion of whether or not the evidence of guilt is strong. Such conclusion shall not be regarded as a pre-judgment of the merits of the case that is to be determined only after a full blown trial.”
Under the new procedure, the bail hearing should take only a few days, in contrast to the many years it took in the past. But due to the complicated nature of the crime of plunder and the number of accused involved, the hearing may take much longer than anticipated by the new rule.
Also, since the three plunder cases were not assigned to only one Special Division, or were not consolidated in one regular division even though they arose from the “same incident or series of incidents, or [involve] common questions of fact and law,” the bail hearings will take more time because the same whistle-blowers and prosecution witnesses will have to be presented and examined in three divisions, instead of in only one.
In sum, the First and Fifth Divisions found probable cause, issued arrest warrants and ordered the detention of the accused senators in the PNP Custodial Center. If the Third Division finds probable cause and issues arrest warrants, it should, in my humble view, order the detention of Senator Enrile in a hospital or in his house, due to his advanced age, frail health and physical infirmities. But the entitlement to bail of all those charged with plunder can be ruled upon only after observing the abbreviated hearing under the new rule of the Supreme Court.
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