If a petition for bail is granted in a "nonbailable plunder" case -- where the penalty is death had it not been earlier abolished -- based on the theory that the accused does not appear to be the "main plunderer", if there is one, or that there does not appear to be a "main plunderer" at all, despite the finding of the court that there is sufficient prima facie evidence (probable cause) showing receipt by the accused of bribe money out of his multi-million peso pork barrel transactions, such a "main plunderer" theory is unconstitutional because it violates the constitutional command that, in a capital offense, no bail shall be granted if the evidence of guilt is strong. (Article III, Bill of Rights, 1987 Constitution).
The "main plunderer" theory finds no basis -- whether directly, indirectly or by analogy -- in any of the provisions of Rule 114 (bail) of the Rules of Criminal Procedure.
The theory effectively rules that, despite the earlier "multi-determination of probable cause" by the Department of Justice, the Office of the Ombudsman, the Office of the Special Prosecutor of the Ombudsman, and the trial court itself (judicial determination of probable cause phase) showing that a crime (corpus delicti) has been committed and that the accused is probably guilty thereof, if there appears to be no "main plunderer" (main/senior co-conspirator or mastermind) the junior co-conspirators are entitled to provisional liberty (bail).
It contradicts the elementary doctrine that "in a conspiracy the crime of one is the crime of all."
The conspiracy doctrine does not qualify that it is inapplicable when the "main plunderer" or the "mastermind" or the "main/senior co-conspirator" allegedly does not exist or allegedly cannot be identified, despite the earlier finding of "probable cause" showing the "commission of the crime itself" by the indicted multiple accused.
The office of the special prosecutor of the Ombudsman should elevate this purely legal and constitutional issue to the Supreme Court based on grave abuse of discretion of the Sandiganbayan amounting to lack or excess of jurisdiction in order to resolve the matter with finality. (Rule 65, Certiorari, Rules of Court).
