Wednesday, December 3, 2014

Strong Evidence, Sandiganbayan, Supreme Court, Sub Judice

Most recently, Sandiganbayan denied the bail motions of Senator Ramon Revilla Jr., accused mastermind Janet Lim-Napoles, and alleged bagman Richard Cambe on the plunder charge over their alleged involvement in the pork barrel scam.

This means that Sandiganbayan determined that the prosecution proved the existence of strong evidence to merit the non-granting of bail against the three who are accused of plunder, a capital offense.

Still pending are the bail hearings of the plunder cases against Senators Jinggoy Estrada and Juan Ponce Enrile.

I am particularly interested in the case of Senator Enrile because of his petition for certiorari in the Supreme Court to obtain his freedom from detention while awaiting trial.

Described by former Chief Justice of the Supreme Court Art Panganiban as “novel and unusual”, it is indeed unique and interesting for legal academicians, law practitioners, students and even laymen who follow the Philippine judicial system.

After the usual preliminary investigation, the Office of the Ombudsman charged and indicted Enrile with plunder. Based on the criminal information and attached evidence presented by the Ombudsman, and having independently determined that there was “probable cause”, the Sandiganbayan ordered Enrile’s arrest and detention without bail.

But Enrile through his lawyer, legal luminary Estelito Mendoza counters that the above-mentioned long-standing procedure is unconstitutional.

He argues, under the Constitution “the accused shall be presumed innocent until the contrary is proved”. Furthermore, the Constitution also provides that “all persons, except those charged with (capital) offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable.”

Since Enrile is presumed innocent, he claims that the prosecution must prove his guilt, and in so proving, the evidence must be strong.  The only way for the prosecution to accomplish this, is to go full trial and present not only what it considers strong evidence but, in fact, proof of guilt beyond reasonable doubt.

The absence of full trial where various evidence are presented and admitted, also presupposes that the determination of whether evidence is strong or not is likewise absent.  Therefore, he contends that his constitutional right to bail must be respected until the existence of strong evidence is shown.

Also worth mentioning is Enrile’s assertion that only offenses punishable by reclusion perpetua are non-bailable. He says, even if found guilty, Enrile’s penalty to be imposed would not be reclusion perpetua because he would surely be entitled to two mitigating circumstances namely: (1) old age for being over 70 years (he is over 90) and (2) voluntary surrender.

As explained by former CJ Art Panganiban, Enrile also avers that the jurisprudential reason for detaining the accused in capital offenses is the probability of flight. In his case, flight is most improbable because of (1) his very old age and frail health, (2) his track record (in previous cases filed against him, he did not flee), and (3) his “official and social standing” (as a senator, Cabinet member and other high government positions he held from 1966 up to the present), which allegedly “shows his high respect for the law.”

It is indeed a new and distinctive legal approach that Enrile and his lawyers are undertaking to free him from detention during the entire trial.
Sub Judice Rule

Unfortunately, former CJ Panganiban decided to refrain from making an extended legal opinion because of the sub judice rule as Enrile’s petition is still pending in the Supreme Court.

Now that Enrile’s unique position has been ably explained, I think that it would be fair to also state the probable counter arguments.

Although I am a lifetime member of the Integrated Bar of the Philippines (IBP), I have earned credentials as a member of the Press by national and international conferences organized and/or sponsored by government and non-government organizations nationwide and worldwide for several years now.  As a columnist and blogger, I have never been restricted from expressing my personal views be they legal, political, economic, social, or technological.

So, the sub judice rule never stopped me from exercising my free speech rights or my publisher from his press freedom.

Probable Cause, Strong Evidence

When the Sandiganbayan determined the existence of “probable cause”, it found “sufficient ground to engender a well-founded belief that the crime of plunder has been committed, and that the accused (Enrile) is probably guilty thereof and should be held for trial. It does not require an inquiry as to whether there is sufficient evidence to secure a conviction.” (Philippine Jurisprudence)

Of course, the legal assumption for the determination is that the evidence is sufficiently “strong” to have the commensurate belief that Enrile is probably guilty of plunder.  In short, contrary to Enrile’s contention, a full trial is unnecessary to determine the existence of strong evidence and that the latter does not equate to proof beyond reasonable doubt.

Presumption of Innocence

The presumption of innocence contemplated under the Constitution is “rebuttable” presumption not “conclusive” presumption. Rebuttable presumption of innocence is one that can be disproved by evidence to the contrary. In fact, the Rules of Evidence are concerned only with rebuttable presumptions.

In the case of Plunder: In the Preliminary Investigation, presumptive innocence is disproved by sufficient evidence showing Probable Cause to merit a Warrant of Arrest; in the Bail Hearings, presumptive innocence is further disproved by Strong Evidence to disallow bail; in Full Trial, presumptive innocence is finally disproved by Proof Beyond Reasonable Doubt to merit conviction.

Bail Hearings

The determination of whether there should be bail and how much is at the initial stages of a case trial.  Enrile’s argument presupposes conditions occurring at the end of a full trial. First, that strong evidence could only be determined after all the proofs have been presented during the entire trial. Second, that the mitigating circumstances like old age and voluntary surrender should be considered in determining bail. But such could only be factored in during sentencing when Enrile is already found guilty at the end of the trial.

Most noticeably, if Enrile is granted the petition and therefore freed on bail, then all those currently accused of plunder and other capital offenses could also be freed and granted bail using the same arguments. They include the Ampatuan Family, former President Arroyo, Bong Revilla, Jinggoy Estrada, Janet Napoles, Richard Cambe and many others involved in the pork barrel scam.

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