Tuesday, September 1, 2015

BusinessWorld | The Supreme Court lost the chance to strengthen the Bill of Rights when it granted bail to Enrile

See - BusinessWorld | The Supreme Court lost the chance to strengthen the Bill of Rights when it granted bail to Enrile

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Thus, in letters, statements, and court pleadings, we repeatedly asked the same key questions: “Doesn’t this practice of immediately denying bail to an accused charged with a capital offense, upend and undermine the constitutional presumption of innocence?” “Doesn’t the presumption of innocence require that the State should instead immediately admit the accused to bail until and unless the state proves that the evidence of guilt is strong?”

Our campaign to reform procedure was of course unmarred by any victory, especially in court. This was, after all, the very procedure established and enabled in the Rules of Court. And it still is, at present under Section 7, Rule 14 of the Rules of Court, which provides that “[n]o person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.”

The courts obliged, never mind that this particular rule of court was, on its face, already a distortion of the Constitutional command that “[A]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”

But while we always lost this argument, I never ceased believing in the idea that the right to bail can still be better served by reforming our criminal procedure, even if its latest advocate was Senator Juan Ponce Enrile, a man who so profoundly personified a regime that had done so much to harm civil liberties and human rights in the Philippines.

The Supreme Court had a singular opportunity, in resolving the Senator’s petition, to definitively strengthen the right to bail by redefining the procedure for its exercise in relation to the presumption of innocence. Had the Supreme Court seized that opportunity to declare that the accused, even those charged with capital offenses, should henceforth be allowed to bail and freedom until the state succeeds in showing that its evidence is strong, it would have returned criminal procedure to its libertarian moorings in the Bill of Rights, and truly reconciled the right to bail to the constitutional presumption of innocence.

Indeed, had the Supreme Court chosen this course, the consequent freeing of Senator Enrile would have been a modest price to pay because then, all Filipinos, Senators and farmers alike, would at last be truly entitled to bail as a matter of right and would at last be truly presumed innocent as promised them by their Constitution.

But the Court, courtesy of the majority decision, chose to do something else altogether. It chose instead to free the Senator on the basis of an argument he did not make, and reasoning that, in this lawyer’s opinion, only further dislodges the Bill of Rights from its proper place in the center of the administration of justice.

The majority admitted the senator’s request for bail because he was old and supposedly ill, and because he was allegedly not a flight risk. But jurisprudence instructs that “flight risk” is relevant in the grant or denial of bail only when the seeker of bail is in danger of extradition to another country and thus irrelevant where the accused is not to be extradited but tried for a capital offense in the Philippines. In the latter situation, the sole measure of entitlement to bail remains to be the one provided in the Constitution: the strength or weakness of the evidence of guilt.
There is, to be sure, a 1946 Supreme Court decision which suggests that bail may be granted an accused who is seriously ill. But the majority simply ignored the several inconvenient truths that should have cautioned against the invocation of this dated precedent in favor of the senator. To begin with, he himself did not feel sufficiently ill to raise the state of his health in his plea for bail. Also, there was no competent evidence, tested in proper judicial proceedings, of his true afflictions and their gravity. Finally, and in any event, the Sandiganbayan had already made adequate provision for any deterioration in his health.
Bail is discretionary only after conviction, and only under certain, strictly defined circumstances. On the other hand, bail is a matter of right before conviction, even in capital offenses, except only when the evidence of guilt is strong. But the Supreme Court allowed the senator to post bail without any judicial finding that the evidence of his guilt was not strong. In so doing, the Court had effectively removed the right to bail from the careful calibrations in the Constitution and in statue and case law, and relocated it to the treacherous reaches of magisterial discretion.
The decision to grant bail was liberally couched in the vestments of compassionate justice and human rights. Ironically, however, to the extent that compassionate discretion has only rarely -- if ever -- been exercised in favor of the poor, marginalized, and nameless, human rights has not at all been well served in this instance.

Rafael A. L. Aquino is a partner in the Santos Parungao Aquino and Santos Law Offices, a member of the Free Legal Assistance Group, married to another lawyer, and the father of a young lady who is not interested in becoming a lawyer.

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