JPE’s novel bid for bail

Novel and unusual is the petition for certiorari filed by detained Sen. Juan Ponce Enrile (JPE) in the Supreme Court to obtain his freedom from detention while awaiting his trial in connection with the charge of plunder and graft filed against him by the Office of the Ombudsman (OOO) for his alleged complicity in the pork barrel scam.

Long-standing procedure. After conducting a preliminary investigation (PI), the OOO filed last June 5 an information (or charge sheet) indicting JPE (and several others) with plunder and graft. Having “independently” determined the existence of “probable cause” from the information and its attached evidence, the Sandiganbayan (SBN) ordered JPE’s arrest and detention without bail.

Unquestionably, the SBN followed the long-standing and accepted procedure observed by all Philippine courts of ordering the arrest and detention without bail of those charged with capital offenses (like plunder, rape, murder and syndicated estafa).

Pursuant to this procedure, “bail hearings” are then immediately conducted, in which the prosecution is required to present evidence showing that the evidence of guilt is “strong.” If the prosecution’s evidence is judged to be “strong,” then the accused shall remain in detention without bail for the remainder of the trial (and during the appeal, in case of a “guilty” verdict).

On the other hand, if the court finds the evidence to be “not strong,” then the accused is released on bail while trial “on the merits” continues to determine guilt (or innocence), and the appropriate penalty, if the accused is eventually found guilty.

This procedure is used in the prosecution of all capital offenses, like those of former presidents Joseph Estrada and Gloria Macapagal-Arroyo, Senators Jinggoy Estrada and Bong Revilla, as well as the Ampatuan family members (in the Maguindanao massacre), who were all similarly detained without bail after their arrest (or surrender).

(Parenthetically, when the crime is not capital in nature, the accused is ordered arrested but released upon posting of bail in the amount

stated in the arrest order.)

General rule. Through his counsels Estelito P. Mendoza and Eleazar B. Reyes, JPE however claims that this long-standing and long-revered procedure is unconstitutional and wrong.

JPE reasons that under the Constitution, “[i]n all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,” or until found guilty beyond reasonable doubt. Also, the Charter guarantees that “[a]ll persons, except those charged with [capital] offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable…”

Citing jurisprudence, he adds that bail is denied in capital offenses because an accused who faces a probable life sentence “has a particularly strong temptation to flee.”

Analyzing these constitutional provisions and the jurisprudential reason for the denial for bail in capital offenses, JPE explains that every person accused of any crime is constitutionally entitled to bail as a general rule.

Exception to rule. As an exception, however, bail is denied when two conditions are present: (1) the evidence of guilt is strong, and (2) the penalty prescribed for the offense is punishable by reclusion perpetua (or life imprisonment).

The first condition, he avers, can be determined only after the prosecution has finished presenting its evidence during the bail hearings and after the court has adjudged such evidence to be “strong.” Unconstitutional, illogical and wrong, therefore, he argues, is the present procedure of detaining the accused without bail prior to the court’s ruling that the evidence is indeed “strong.”

This long-standing practice, he adds, puts “the cart before the horse” and violates the constitutional presumption of innocence.

If the Supreme Court agrees with and frees him 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.”

On the second condition, JPE asserts that in his particular case, the penalty to be imposed would not be reclusion perpetua even if he is found guilty, because he should be credited with the mitigating circumstances of (1) old age for being over 70 years (in fact, he is over 90) and (2) voluntary surrender. These two circumstances are uncontested. (Without waiting to be actually arrested, JPE surrendered to the authorities.)

Finally, JPE avers that the jurisprudential reason for detaining the accused in capital offenses is the probability of flight. In his case, flight is most improbable because of (1) his very old age and frail health, (2) his track record (in previous cases filed against him, he did not flee), and (3) his “official and social standing” (as a senator, Cabinet member and other high government positions he held from 1966 up to the present), which allegedly “shows his high respect for the law.”

Since JPE’s petition and those of Senators Estrada and Revilla are pending in the Supreme Court and therefore sub judice, I will refrain from making an extended legal opinion. However, as a concerned citizen, I will continue to monitor and report on high-profile cases especially as they relate to President Aquino’s daang matuwid program.

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