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Why Enrile's bail efforts were to no avail

(Article Published in the Rappler, Aug 22,2014)

The Third Division points out that the determination of the strength or weakness of the evidence of the prosecution has not yet been made by the court simply because it had not yet been given an opportunity to do so

The fundamental principles of the right to bail are articulated in Section 13 of Article III of the Constitution.

Generally, "all persons shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law." The exception is "those persons charged with offenses punishable by reclusion perpetua (imprisonment for life) when the evidence of guilt is strong."

When principles are translated into practice, the complications set in.

"Bail" is security given by the accused, who is under arrest, or by someone on his behalf to: first, cause the release of the accused from the hands of the court; and second, to guarantee that he will present himself to the court when so required.

That security can be in cash in the amount fixed by the court, or a lien constituted on real property, or a promise given by a third person to produce the accused when so required, or by assurance of professional bondsmen who are in the business of furnishing bonds.

The accused person, since he has not yet been convicted, enjoys the presumption of innocence, and is thus turned over by the court to the surety who then, like Basanio for Antonio, answers for the compliance by the accused with the conditions of the bond. The bondsman henceforth stands in the place of the jailer of the accused.

When an accused is charged with an offense that falls under the general rule, bail is granted as a matter of course. But, when the offense charged falls under the exception, a hearing needs to be conducted to thresh out matters.

Plunder is an exception

Plunder falls among the crimes in the exception; thus, the defense lawyer needs to decide whether it is in the client's interest to ask for bail or not.

Juan Ponce Enrile (JPE), himself a seasoned lawyer though not in the area of criminal law practice, and his equally seasoned lawyer, whose courtroom ability is presently affected by a number of geriatric impairments, must have decided it was worth a try to fudge things a bit.

In the middle of June, JPE sought to jumpstart the process by filing, as a part of an Omnibus motion to dismiss, even before he was arrested, an AD CAUTELAM MOTION FOR BAIL. (Caps Enrile's)

"AD CAUTELAM" is Latin for "with caution." It is legal gobbledygook that is often used tongue-in-cheek by litigation practitioners to insert something into the record of the case that, at the moment introduced, appears innocuous but could later on be useful to have in the record – should the case be raised on appeal.

In JPE's motion, his caution seems to be more of insistence. He wanted bail to be granted, "BEFORE, PENDING and EVEN AFTER THE DETERMINATION OF STRONG EVIDENCE OF GUILT" (Caps in JPE's motion). Thus, though usually the phrase AD CAUTELAM (with the word "abundancia" inserted to rub it in) seeks to project an aura of respect for the court, JPE's use appears more of a subtle warning to the Sandiganbayan that denial of bail, at this time, may be reversed on appeal, thereby causing the collateral damage of exposing the ineptness of the hearing justices.

JPE argued that before and pending the determination that the evidence against him is strong, he enjoys the presumption of innocence. Hence, bail at that point was a matter of right. But even after the prosecution shall have made its case that the evidence is strong, he, nevertheless may still be granted bail because, among other reasons, he was not a flight risk, "already 90 years old, with poor and frail physical condition requiring constant medical attention," and he had always been well-behaved, "has never violated the conditions of previous bails granted to him."

Not content with the Ad Cautelam motion, JPE filed a follow up motion to fix bail dated July 7, 2014. He reiterated his previous arguments and pointed out that, considering the mitigating circumstances of his being "over 70 years old" and his voluntary surrender, the penalty likely to be imposed on him is only reclusion temporal, (i.e., 20 years max or a shade lower than "perpetua") and therefore he is entitled to the application of the general rule.

Bail denied

The arguments are ingenious but they failed to convince the Third Division where his case was eventually raffled to. The Third Division pointed out that the determination of the strength or weakness of the evidence of the prosecution has not yet been made by the court simply because it had not yet been given an opportunity to do so. The court said, "To be sure, no such determination (of whether the evidence is strong or weak) has been made by the Court. In fact, accused Enrile has not filed an application for bail. Necessarily, no bail hearing can even commence. It is thus exceedingly premature for accused Enrile to ask the Court to fix his bail."

Why had Enrile refrained from frontally confronting the issue of the strength or weakness of the prosecution's evidence in an honest-to-goodness bail hearing? The reason, I submit, is embedded in Section 8 of Rule 114 of the Rules of Court.

Section 8 states, in part, that "the evidence presented during the bail hearing shall be considered automatically reproduced at the trial ...." That will require abbreviating the trial process and that is not something the defense ordinarily wants at an early stage of the game.

In any case, after more pleadings and counterpleadings ensued, the Third Division, according to the media, on August 8, denied bail with finality. And the mills of the gods, albeit grinding slowly, continue to move on grinding exceedingly fine. – Rappler.com

       (Reynaldo "Gerry" Geronimo is a partner at the Romulo, Mabanta, Buenaventura Sayoc & De los Angeles law office. He is known as The Trust Guru and maintains a website, www.thetrustguru.com.)

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