Bail for Jinggoy but not for Janet

The Sandiganbayan (SBN) Special Fifth Division of five justices, voting 3-2, granted bail to former senator Jinggoy Estrada but the regular SBN Third Division of three justices, voting 3-0, denied it to Janet Napoles; yet both are accused of plundering pork barrel funds, a nonbailable offense. Readers ask: Why?

No bail for Janet. Along with former senator Juan Ponce Enrile and three others, Napoles was charged with plunder. Under the Constitution, “persons … charged with an offense punishable with reclusion perpetua [like plunder], when the evidence of guilt is strong,” shall not be bailable. Nonetheless, Napoles claimed that “the prosecution failed to prove that the evidence against her [was] strong”; thus, she should be granted bail.

On Oct. 16, 2015, the SBN’s Third Division composed of Presiding Justice Amparo M. Cabotaje-Tang (ponente), Justice Samuel R. Martires (who has since been promoted to the Supreme Court) and Justice Sarah Jane T. Fernandez, unanimously trashed her claim.

On March 2, 2016, it denied Napoles’ motion for reconsideration (MR), ruling that the prosecution’s “clear and strong evidence … [shows] that the offense of plunder has been committed as charged; that accused Napoles is guilty thereof, and that she will probably be punished capitally if the law were administered at this stage of the proceedings.”

On Nov. 7, 2017, the Supreme Court affirmed these two SBN resolutions denying bail to Napoles. (Earlier, in a path-breaking decision—Enrile vs Sandiganbayan, Aug. 18, 2015—the Supreme Court granted bail to Enrile not because of the weakness of the prosecution’s evidence but because of his advanced age and fragile health.)

Bail for Jinggoy. On Jan. 7, 2016, Estrada’s petition for bail in another plunder case that also included Napoles was similarly denied via a 215-page Resolution of the SBN’s Fifth Division “after finding that the prosecution has presented a strong evidence of guilt against him.”

The Fifth Division was then composed of Justices Roland B. Jurado, chair and ponente, Justice Alexander G. Gesmundo (who has also since been promoted to the Supreme Court) and Justice Ma. Theresa Dolores C. Gomez-Estoesta.

Undaunted, Estrada filed on Sept. 13, 2016, a new “Omnibus Motion … to dismiss and/or grant bail.” On Sept. 15, 2017, the Special Fifth Division of five granted him bail, not because of the weakness of the prosecution’s evidence, but because of a new jurisprudence (Gloria Macapagal-Arroyo vs Sandiganbayan, July 21, 2016) requiring that 1) the information must allege and 2) the prosecution’s evidence must prove who the “main plunderer” is.

The majority of three (Justices Maria Theresa V. Mendoza-Arcega, ponente, Reynaldo P. Cruz and Lorifel L. Pahimna) held that “the Information complied with the requirement of alleging a main plunderer … [but] after due consideration of the ruling in the Arroyo case and a review of the evidence thus far presented …, the Court finds that the evidence has not strongly established accused Estrada as the main plunderer.” On Nov. 10, 2017, the prosecution’s MR was denied.

Not acquitted. The minority of two (Justices Rafael R. Lagos and Zaldy V. Trespeces) dissented because, to quote Trespeces, “there is strong evidence of Estrada’s guilt as the main plunderer for whose benefit the amassing of wealth was undertaken by all of the accused …”

The prosecution can still elevate the majority’s ruling to the Supreme Court, given the narrow 3-2 vote and the nonparticipation of the original members of the Fifth Division who denied bail.

Moreover, unlike former President Arroyo who was acquitted by the Supreme Court, Jinggoy was merely granted bail, not acquitted. Thus, he could still be convicted of plunder because, as the majority itself held, “This ruling does not delve on the guilt or innocence of accused Estrada. It will also not preclude the prosecution from its right to present further evidence during the trial of this case.”

In reaction, Ombudsman Conchita Carpio Morales told the media: “We have never been more confident about the evidence we have.” Though granted bail, will Jinggoy be eventually convicted of plunder? Abangan.

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