Looking anew at the right to bail | Inquirer Opinion

Looking anew at the right to bail

/ 12:00 AM October 13, 2016

This refers to the column “Other constitutional revisions” of former chief justice Artemio Panganiban (Opinion, 9/25/16) where he cited lawyer Estelito Mendoza’s maverick view—an idea that could turn “well-entrenched jurisprudence” on its head.

Since time immemorial, the Supreme Court has been affirming and reaffirming the prevailing doctrine on the denial of bail “when evidence of guilt is strong.” According to this age-old doctrine, the rule allows the trial court to order the arrest of the accused without bail when the criminal charge is punishable by life imprisonment, almost always upon the mere filing of such charge by the public prosecutor. Of course, the presumption is, the judge has personally and judiciously examined the “evidence” and found the same to be “strong.” But, more often than not, that “judicial determination of probable cause” is pure fiction. How could the judge possibly come up with any such determination based only on the self-serving evidence of the prosecution?


If true that the evidence of guilt has been unassailably found “strong” by the judge warranting outright disallowance of bail, how come the public prosecutor is first required to present proof of its strength when the defense moves for allowance of bail on the ground that such evidence of guilt is “not strong”?   Isn’t it but logical that the defense should immediately get on with its job of demolishing that evidence by putting prosecution witnesses on the stand for cross-examination?

The rule says it clearly in plain English: No bail if the evidence of guilt is strong—meaning, after presentation of proof.    Defense lawyers worth their salt agree that the judge is hearing and seeing the proof for the first time more thoroughly—that is, under closer scrutiny and cross-examination—only during those proceedings. Yet by the judge’s initial (read: haphazard) “finding of strong evidence of guilt” upon the mere filing of the charge, the accused is at once thrown in jail. Whatever happened to the constitutional presumption of “innocence until proven guilty”?


Mendoza hit the nail on its head. He saw something which the Supreme Court seems to have been missing miserably for decades.

But then again, it also took the Court half a century to realize that the “well-entrenched (1959) doctrine of condonation by reelection” was really such a “crazy”  (lay person Solita Monsod’s description in her April 20, 2015 column “Doctrine of condonation re-examined”) idea as it encourages public officials to steal public funds big time in order to be able to fund their campaign and win reelection by hook or by crook, thereby wiping out the traces of their shenanigans.

Mendoza’s epiphany might have been gained more resonance had he come up with that argument during his watch as solicitor general under former president Ferdinand Marcos or some years thereafter on behalf of ordinary people. That he has raised it only now in defense of former senator Juan Ponce Enrile and former president Gloria Arroyo, both accused of plunder, leaves a putrid taste in the mouth.

Panganiban noted that the Supreme Court skirted the constitutional issue raised by Mendoza. It granted bail to Enrile and acquitted Arroyo on other grounds. But judging from the attention Mendoza is always getting from the Supreme Court, he may just as easily convince that Court to abandon its ancient misconception about the constitutional “right to bail” in the still-pending case against Enrile. Abangan!


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TAGS: doctrine of condonation, estelito mendoza, Gloria Macapagal Arroyo, Juan Ponce Enrile, Right to bail, Supreme Court
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