Would you grant bail if it was not Enrile?

THE SUPREME Court decision granting bail to Sen. Juan Ponce Enrile in an 8-4 vote has been heavily criticized, and by no less than the Inquirer’s editorial last Aug. 21. But would critics oppose the new court doctrine had the accused not been Enrile? Because law creates rules that apply to all persons, this is an interesting exercise to gauge how we form opinions on legal issues.

Reports higlighted the extremely vocal dissent by Justice Marvic Leonen. This reiterated the general rule: Bail should not be granted to someone accused of a crime punishable by a certain length of imprisonment if evidence of his guilt is strong. The rule revolves around the evidence of guilt. Leonen argued that the Sandiganbayan correctly applied this when it concluded that before it may consider bail, it must first let the prosecution present its evidence and then determine whether evidence of guilt is strong. Enrile elevated the question of bail to the high court before such evidence was completely presented.

Justice Lucas Bersamin’s majority opinion conceded that Leonen stated the correct rule. However, it created a new rule where a court may grant bail out of humanitarian considerations, in this case because Enrile is 92 years old and is suffering from various ailments.

Without necessarily agreeing with the opinion, Bersamin’s rule is hardly baseless. Courts traditionally have great power to rule on human rights issues such as the right to bail and the presumption of innocence. Courts also have residual power to temper justice with mercy. Finally, courts have discretion in how to administer cases. (Please note that Enrile and I are members of the same legal fraternity, as was one of the dissenting justices who joined Leonen.)

Imagine another 92-year-old accused in presumably failing health, someone hardly as prominent as Enrile. Would you condemn a judge who applied Bersamin’s rule and granted bail to such an accused after being convinced he will not flee? Consider that the presumption of innocence has a pressing context here, where the accused is in the twilight of his life and may not live to see a verdict. And remember, to grant bail is not to acquit.

You might decide that you agree with Leonen that evidence of guilt must be the sole basis for granting bail to someone accused of a grave crime. You might agree that judges must solely weigh the strength of evidence of guilt of all such 92-year-olds. However, you might also decide that you might allow bail for at least one 92-year-old without going into such evidence. If so, you do not disagree with Bersamin’s new rule. Perhaps you disagree with how it was applied to Enrile, not the rule itself, and Leonen had strong words regarding this in his dissent. Or perhaps you believe Enrile is guilty and are criticizing Bersamin’s rule on bail as a pretext.

If you do not actually disagree with Bersamin’s new rule, and even if you disagree with how it was applied to Enrile, perhaps the question should then be how the new rule should be extended to all other sickly 92-year-old accused. The point is, while you might legitimately form an opinion that Enrile should not be granted bail, you should be able to state whether your opinion is due to the rule, the rule’s application or simply your perception of the accused outside the bail issue.

We have seen too many cases where emotions run high without appreciating that a legal rule being debated is quite distinct from the person involved. For example, when the high court interpreted the pardon of former president Joseph Estrada as allowing him to run for office, many (including my neighbor Peter Wallace) condemned the high court for allowing someone convicted of plunder to become mayor of Manila. Such criticism had nothing to do with the wording of the pardon the court interpreted and should have been hurled at the president who pardoned Estrada. Further, the current Torre de Manila litigation is not a referendum on how Rizal Park should look but a court case on whether the Torre violated a law or ordinance. These are two different things.

No one has been so intertwined with so many segments of our history and seen his fortunes rise and fall to such extremes as Enrile. He has been administrator of martial law, hero of the Edsa Revolution, jailed coup plotter, iron-fisted impeachment trial presiding officer, bestselling autobiographer, and now accused of plunder. He has voiced no regrets through it all and perhaps he is prepared for history to judge him more harshly or more gloriously than any court could.

Given the polarizing opinions on Enrile, again without necessarily agreeing with the decision and recalling that to grant bail is not to acquit, it is important to ask whether the critics would be willing to apply Bersamin’s rule to other 92-year-old accused. If so, perhaps it would be educational to break down what is criticism of law and what is (equally legitimate) criticism of other things (which should be labeled accordingly).

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The fourth Torre hearing last Aug. 18 saw Justice Francis Jardeleza grill City of Manila officers regarding the alleged lack of authority of previous city officers who granted the initial permits. The session was cut short by inclement weather and parts of the recording were inaudible. I may resume my summary after the solicitor general’s and National Historical Commission’s presentations.

Petitioner’s lawyer, William Jasarino, was reprimanded by Chief Justice Maria Lourdes Sereno for not filing, as he promised, an answer to a previous question from Justice Presbitero Velasco. Jasarino explained that his notes were mistaken.

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