The dissenting opinion was longer than the Supreme Court en banc decision itself which granted the petition of Senator Juan Ponce-Enrile for bail.
Penned by Associate Justice Marvic Leonen, the strongly worded, 29-page dissent said the grant of bail by the majority is a “special accommodation” for the petitioner.
Leonen wrote that the majority decision, which does not fully respond to the legal issues outlined in the dissenting opinion, tempts one to conclude that “the decision is the result of obvious political accommodation rather than a judicious consideration of the facts and the law.”
He also said the case may benefit “one powerful public official at the cost of weakening our legal institutions.” If it applies to this one particular occasion only, then “it amounts to selective justice.”
On Tuesday, August 18, the High Tribunal, voting 8-4, decided in favor of Enrile’s petition for bail. The 17-page majority opinion’s main basis for the grant of bail is the Universal Declaration of Human Rights.
The dissenters were Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Associate Justice Estela Perlas-Bernabe, and Leonen.
In his dissent, Leonen said the decision is “based on a ground never raised before the Sandiganbayan or in the pleadings filed before this court.” He also pointed out that bail is “not a matter of right in cases where the crime charged is plunder and the imposable penalty is reclusion perpetua” or life imprisonment.
The 91-year-old Enrile was granted bail on the basis of the following:
• Bail protects the right of the accused to due process and to be presumed innocent.
• Prior to conviction, bail may be granted as a matter of right or of discretion. Anyone charged and detained retains his right to bail ¬– unless charged with a capital offense, an offense punishable with life imprisonment, and when the evidence of guilt is strong.
• Admission to bail in offenses punished by death, or life imprisonment, or reclusion perpetua is subject to judicial discretion.
• Enrile’s poor health justifies his admission to bail.
The majority decision concluded that “the Sandiganbayan arbitrarily ignored the objective of bail to ensure the appearance of the accused during the trial; and unwarrantedly disregarded the clear showing of the fragile health and advanced age of Enrile.”
The justices also said the anti-graft court “gravely abused its discretion” in denying the senator bail, its action connoting “whimsical and capricious exercise of judgment as is equivalent to excess, or lack of jurisdiction.”
Enrile, along with two other senators, Jinggoy Estrada and Ramon “Bong” Revilla Jr, faces plunder and graft charges in connection with the misuse of the Priority Development Assistance Fund or pork barrel. Plunder is typically a non-bailable offense.
In his petition, Enrile said he is not a flight risk, the prosecution failed to establish strong evidence of guilt, and that the High Court should consider his advanced age and voluntary surrender as mitigating circumstances.
The dissenting opinion pointed out that, in his petition, Enrile did not ask that bail be granted because of his medical condition or for humanitarian reasons. “Yet, it now becomes the very basis for petitioner’s grant of bail.”
Springing a surprise
Leonen also narrated how the justices ended up voting on a draft decision different from what had been the subject of their previous deliberations. He said the member in charge submitted a draft early this year.
This draft adopted the legal arguments, which centered on the court taking note of evidence that seeks to establish mitigating circumstances. These circumstances would lower the penalty on Enrile even before he goes to trial.
When the case was deliberated upon on August 11, 2015, the member in charge, then the ponente, proposed that all discussion on the legal points pertaining to bail as a matter of right be dropped and instead focus on “humanitarian” grounds.
Associate Justice Lucas Bersamin then committed to prepare a draft for consideration of all justices. A revised draft was circulated on August 14, to which Leonen raised several questions – among them:
• What, if any, is the legal basis for humanitarian releases on bail? Do we have clear judicial precedents for hospital or house arrests for everyone?
• Without conceding, if the accused is released on bail so that his medical condition can be attended to, should he be returned to detention when he becomes well? If he reports for work, does this not nullify the very basis of the ponencia?
• What is the basis for P500,000 as bail? What is our basis for setting this amount? Should this Court rather than the Sandiganbayan exercise this discretion?
• What are our specific bases for saying that the medical condition of the accused entitles him to treatment different from all those who are now under detention and undergoing trial for plunder?
While the points in Leonen’s letter were raised during the August 18 deliberations, Bersamin insisted on a vote.
Different final copy
He said he was “abandoning the August 14, 2015 circulated draft” that centered on humanitarian grounds. Instead, he was returning to his earlier version that focused on bail as a matter of right based on judicial notice and the existence of mitigating circumstances. This is what the Supreme Court justices voted on at 11 am of August 18. The only amendment accepted by Bersamin was the increase of the bail amount to P1 million.
However, at about 3 pm on the same day, when the Court was hearing oral arguments on the Torre de Manila case, Bersamin passed around a “final copy of the majority opinion which was not the version voted upon during the morning’s deliberation.” What he circulated was the August 14 version granting bail on humanitarian grounds.
Internal rules of the High Court normally allow one week for the submission of dissenting opinions, but Leonen had to complete his draft incorporating the ideas of the other dissenters within two days from the release of the majority opinion penned by Bersamin.
Indicative of the surprise sprung by Bersamin on the justices is the qualificatory note of associate justices Diosdado Peralta and Mariano del Castillo. They appended their signatures to the majority decision citing “humanitarian” grounds.
Supreme Court insiders pointed out “they probably thought they were signing the original version” which focused on mitigating circumstances.
Challenging the main basis for the decision to grant bail, Leonen said the Universal Declaration of Human Rights “does not prohibit the arrest of any accused based on lawful causes nor does it prohibit the detention of any person accused of crimes.” It merely implies that arrest or detention must be carried out in a “dignified and humane manner.”
Special privileges, Leonen said, may be granted only under “clear, transparent, and reasoned circumstances. Otherwise, we accept that there are just some among us who are elite. Otherwise, we concede that there are those among us who are powerful and networked enough to enjoy privileges not shared by all.”
While mercy and compassion temper justice, they should never replace justice. “There is injustice when we justify the result we want with ambiguous and unclear standards.”/Rappler.com