767 Phil.

147 ← click for PDF copy

EN BANC
[ G.R. No. 213847. August 18, 2015 ]
JUAN PONCE ENRILE, PETITIONER, VS.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF
THE PHILIPPINES, RESPONDENTS.
D E CI SI O N

BERSAMIN, J.:

The decision whether to detain or release an accused before and during trial is
ultimately an incident of the judicial power to hear and determine his criminal
case. The strength of the Prosecution’s case, albeit a good measure of the
accused’s propensity for flight or for causing harm to the public, is subsidiary to
the primary objective of bail, which is to ensure that the accused appears at trial.
[1]

The Case

Before the Court is the petition for certiorari filed by Senator Juan Ponce
Enrile
to assail and annul the resolutions dated July 14, 2014[2] and August 8, 2014[3]
issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238, where
he has been charged with plunder along with several others. Enrile insists that
the resolutions, which respectively denied his Motion To Fix Bail and his
Motion For Reconsideration, were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.

Antecedents

On June 5, 2014, the O ffi ce of the Ombudsman charged Enrile and several others
with plunder in the Sandiganbayan on the basis of their purported involvement
in the diversion and misuse of appropriations under the Priority Development
Assistance Fund (PDAF).[4] On June 10, 2014 and June 16, 2014, Enrile
respectively filed his Omnibus Motion[5] and Supplemental Opposition,[6]
praying, among others, that he be allowed to post bail should probable cause
be found against him. The motions were heard by the Sandiganbayan
after the
Prosecution filed its Consolidated Opposition.[7]

On July 3, 2014, the Sandiganbayan issued its resolution denying Enrile’s motion,
particularly on the matter of bail, on the ground of its prematurity considering
that Enrile had not yet then voluntarily surrendered or been placed under the
custody of the law.[8] Accordingly, the Sandiganbayan ordered the arrest of
Enrile.[9]

On the same day that the warrant for his arrest was issued, Enrile voluntarily
surrendered to Director Benjamin Magalong of the Criminal Investigation and
Detection Group (CIDG) in Camp Crame, Quezon City, and was later on confined
at the Philippine National Police (PNP) General Hospital following his medical
examination. [10]

Thereafter, Enrile filed his Motion for Detention at the PNP General
[11] [12]
established that the evidence of his guilt was strong; (b) although he was charged
with plunder, the penalty as to him would only be reclusion temporal,
not reclusion perpetua; and (c) he was not a flight risk, and his age and
physical condition must further be seriously considered.

On July 14, 2014, the Sandiganbayan issued its first assailed resolution denying
Enrile’s Motion to Fix Bail, disposing thusly:

x x x [I]t is only after the prosecution shall have presented its evidence
and the Court shall have made a determination that the evidence of
guilt is not strong against accused Enrile can he demand bail as a
matter of right. Then and only then will the Court be duty-bound to fix
the amount of his bail.

To be sure, no such determination 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.

xxxx

Accused Enrile next argues that the Court should grant him bail
because while he is charged with plunder, “the maximum penalty
that may be possibly imposed on him is reclusion
temporal, not reclusion perpetua.” He anchors this claim on
Section 2 of R.A. No. 7080, as amended, and on the allegation that
he is over seventy (70) years old and that he voluntarily surrendered.
“Accordingly, it may be said that the crime charged
against Enrile is not punishable by reclusion perpetua, and
thus bailable.”

The argument has no merit.

xxxx

x x x [F]or purposes of bail, the presence of mitigating circumstance/s is

not taken into consideration. These circumstances will only be
appreciated in the imposition of the proper penalty after trial
should the accused be found guilty of the offense charged. x x x

xxxx

Lastly, accused Enrile asserts that the Court should already fix his bail
because he is not a flight risk and his physical condition must also be
seriously considered by the Court.

Admittedly, the accused’s age, physical condition and his being a flight
risk are among the factors that are considered in fixing a reasonable
amount of bail. However, as explained above, it is premature for the
Court to fix the amount of bail without an anterior showing that the
evidence of guilt against accused Enrile is not strong.

WHEREFORE, premises considered, accused Juan Ponce

Enrile’s Motion to Fix Bail dated July 7, 2014 is D ENIED for lack of
merit.

SO ORDERED. [14]

On August 8, 2014, the Sandiganbayan issued its second assailed resolution to

deny Enrile’s motion for reconsideration filed vis-à-vis the July 14, 2014
resolution.[15]

Enrile raises the following grounds in support of his petition for

certiorari, namely:
 A.Before judgment of the Sandiganbayan, Enrile is
bailable as a matter of right. Enrile may be
deemed to fall within the exception only
upon concurrence of two (2) circumstances: (i)
where the off ense is punishable by
r e c l u s i o n p e r p e t u a , and (ii) when evidence
of guilt is strong.

x x x x

B.The prosecution failed to show clearly and

conclusively that Enrile, if ever he
would be convicted, is punishable by
r e c l u s i o n p e r p e t u a ; hence, Enrile is entitled to
bail as a matter of right.

x x x x

C.The prosecution failed to show clearly and

conclusively that evidence of Enrile’s
guilt (if ever) is strong; hence, Enrile is
entitled to bail as a matter of right.

x x x x

D.At any rate, Enrile may be bailable as he is not a

flight risk.[16]

Enrile claims that before judgment of conviction, an accused is entitled to bail as

matter of right; that it is the duty and burden of the Prosecution to show clearly
and conclusively that Enrile comes under the exception and cannot be excluded
from enjoying the right to bail; that the Prosecution has failed to establish that
Enrile, if convicted of plunder, is punishable by reclusion perpetua
considering the presence of two mitigating circumstances – his age and his
voluntary surrender; that the Prosecution has not come forward with proof
showing that his guilt for the crime of plunder is strong; and that he should not
be considered a flight risk taking into account that he is already over the age of
90, his medical condition, and his social standing.

In its Comment,[17] the Ombudsman contends that Enrile’s right to bail

is discretionary as he is charged with a capital offense; that to be granted bail, it
is mandatory that a bail hearing be conducted to determine whether there
is strong evidence of his guilt, or the lack of it; and that entitlement to
bail considers the imposable penalty, regardless of the attendant circumstances.

Ruling of the Court

The petition for certiorari is meritorious.

1.

Bail protects the right of the

accused to due process and to be
presumed innocent

In all criminal prosecutions, the accused shall be presumed

innocent until the
contrary is proved. [18] The presumption of innocence is rooted in the guarantee
of due process, and is safeguarded by the constitutional right to be released on
bail,[19] and further binds the court to wait until after trial to impose any
punishment on the accused.[20]

It is worthy to note that bail is not granted to prevent the accused from
accommodate both the accused’s interest in his provisional liberty before or
during the trial, and the society’s interest in assuring the accused’s presence at
trial.[23]

2.

Bail may be granted as a

matter of right o r of
discretion

The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of
the Constitution, viz.:

x x x All persons, except those charged with offenses punishable by

reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by su ffi cient sureties, or be
released on recognizance as may be provided by law. The right to bail
shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.

This constitutional provision is repeated in Section 7, Rule 114[24] of the Rules of

Court, as follows:

Section 7. Capital offense or an offense punishable by

reclusion perpetua or life imprisonment, not bailable. — No
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.

A capital offense in the context of the rule refers to an offense that, under the
law existing at the time of its commission and the application for admission to
bail, may be punished with death.[25]

The general rule is, therefore, that any person, before being convicted of any
criminal offense, shall be bailable, unless he is charged with a capital offense, or
with an offense punishable with reclusion perpetua or life imprisonment,
and the evidence of his guilt is strong. Hence, from the moment he is placed under
arrest, or is detained or restrained by the o ffi cers of the law, he can claim the
guarantee of his provisional liberty under the Bill of Rights, and he retains his
right to bail unless he is charged with a capital offense, or with an offense
punishable with reclusion perpetua or life imprisonment, and the evidence
of his guilt is strong.
[26] Once it has been established that the evidence of guilt is strong, no right to
bail shall be recognized. [27]

As a result, all criminal cases within the competence of the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit
Trial Court are bailable as matter of right because these courts have no
jurisdiction to try capital offenses, or offenses punishable with
reclusion perpetua or life imprisonment. Likewise, bail is a matter of
right prior to conviction by the Regional Trial Court (RTC) for any offense not
punishable by death, reclusion perpetua, or life imprisonment, or even
prior to conviction for an offense punishable by death, reclusion perpetua,
or life imprisonment when
evidence of guilt is not strong.[28]

On the other hand, the granting of bail is discretionary: (1) upon conviction by
the RTC of an offense not punishable by death, reclusion perpetua or
life
imprisonment; [29] or (2) if the RTC has imposed a penalty of imprisonment
exceeding six years, provided none of the circumstances enumerated under
 reiteration;

(b) That he has previously escaped from legal confinement, evaded

sentence, or violated the conditions of his bail
without valid justification;

(c) That he committed the offense while under probation, parole, or

conditional pardon;

(d) That the circumstances of his case indicate the probability of flight
if released on bail; or

(e) That there is undue risk that he may commit another crime during
the pendency of the appeal.

3.

Admission to bail in off enses

punished by death, o r life
imprisonment, o r r e c l u s i o n
p e r p e t u a is subject to judicial
discretion

For purposes of admission to bail, the determination of whether or not

evidence of guilt is strong in criminal cases involving capital offenses, or
offenses punishable with reclusion perpetua or life imprisonment lies
within the discretion of the trial court. But, as the Court has held in
Concerned Citizens v.
Elma,[30] “such discretion may be exercised only after the hearing called
to ascertain the degree of guilt of the accused for the purpose of whether or not
he should be granted provisional liberty.” It is axiomatic, therefore, that bail
cannot be allowed when its grant is a matter of discretion on the part of the
trial court
unless there has been a hearing with notice to the Prosecution. [31]
The indispensability of the hearing with notice has been aptly explained in
Aguirre v.
Belmonte, viz.:[32]

x x x Even before its pronouncement in the Lim case, this Court

already ruled in People vs. Dacudao, etc., et al. that a
hearing is mandatory before bail can be granted to an accused who is
charged with a capital offense, in this wise:

The respondent court acted irregularly in granting bail in

a murder case without any hearing on the motion asking for
it, without bothering to ask the prosecution for its conformity
or comment, as it turned out later, over its strong objections.
The court granted bail on the sole basis of the complaint and
the a ffi davits of three policemen, not one of whom
apparently witnessed the killing. Whatever the court
possessed at the time it issued the questioned ruling was
intended only for prima facie determining whether or
not there is su ffi cient ground to engender a well-founded
belief that the crime was committed and pinpointing the
persons who probably committed it. Whether or not the
evidence of guilt is strong for each individual accused still
has to be established unless the prosecution submits the
issue on whatever it has already presented. To appreciate
the strength or weakness of the evidence of guilt, the
prosecution must be consulted or heard. It is equally entitled
as the accused to due process.

xxxx
 accused, the weight of the evidence against him, the
probability of the accused appearing at the trial, whether or
not the accused is a fugitive from justice, and whether or not
the accused is under bond in other cases. (Section 6, Rule 114,
Rules of Court) It is highly doubtful if the trial court can
appreciate these guidelines in an ex-parte
determination where the Fiscal is neither present nor heard.

The hearing, which may be either summary or otherwise, in the discretion of the
court, should primarily determine whether or not the evidence of guilt against
the accused is strong. For this purpose, a summary hearing means: –

x x x such brief and speedy method of receiving and considering the

evidence of guilt as is practicable and consistent with the purpose of
hearing which is merely to determine the weight of evidence for
purposes of bail. On such hearing, the court does not sit to try the
merits or to enter into any nice inquiry as to the weight that ought to be
allowed to the evidence for or against the accused, nor will it speculate
on the outcome of the trial or on what further evidence may be therein
offered or admitted. The course of inquiry may be left to the discretion
of the court which may confine itself to receiving such evidence as has
reference to substantial matters, avoiding unnecessary thoroughness in
the examination and cross examination. [33]

In resolving bail applications of the accused who is charged with a capital

offense, or an offense punishable by reclusion perpetua or life imprisonment,
the trial judge is expected to comply with the guidelines outlined in Cortes v.
Catral,
[34] to wit:

1. In all cases, whether bail is a matter of right or of discretion, notify

the prosecutor of the hearing of the application for bail
or require him to submit his recommendation (Section 18, Rule
114 of the Rules of Court, as amended);

2. Where bail is a matter of discretion, conduct a hearing of the

application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the
guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion; (Section 7 and 8,
supra)

3. Decide whether the guilt of the accused is strong based on the

summary of evidence of the prosecution;

4. If the guilt of the accused is not strong, discharge the accused upon
the approval of the bailbond (Section 19, supra)
Otherwise petition should be denied.

3.

Enrile’s poor health justifies his admission to bail

We first note that Enrile has averred in his Motion to Fix Bail the presence of
two mitigating circumstances that should be appreciated in his favor, namely: that
he was already over 70 years at the time of the alleged commission of the
offense,
and that he voluntarily surrendered. [35]

Enrile’s averment has been mainly uncontested by the Prosecution, whose

Opposition to the Motion to Fix Bail has only argued that –

8. As regards the assertion that the maximum possible penalty that

might be imposed upon Enrile is only reclusion temporal due
 consideration that the Constitution deemed worthy. The relevant
clause in Section 13 is “charged with an offense punishable by.” It
is, therefore, the m a x i m u m penalty provided by
the off ense that has bearing and not the
possibility of mitigating
circumstances being appreciated in the accused’s
favor. [36]

Yet, we do not determine now the question of whether or not Enrile’s averment
on the presence of the two mitigating circumstances could entitle him to bail
despite the crime alleged against him being punishable with reclusion
perpetua,
[37] simply because the determination, being primarily factual in context, is

ideally to be made by the trial court.

Nonetheless, in now granting Enrile’s petition for certiorari, the Court is

guided by the earlier mentioned principal purpose of bail, which is to
guarantee the appearance of the accused at the trial, or whenever so required by
the court. The Court is further mindful of the Philippines’ responsibility in the
international community arising from the national commitment under
the Universal Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the worth

and dignity of every person. This commitment is enshrined in Section
II, Article II of our Constitution which provides: “The State values the
dignity of every human person and guarantees full respect for human
rights.” The Philippines, therefore, has the
responsibility of protecting and promoting the right
of every person to liberty and due process,
ensuring that those detained or arrested can
participate in the proceedings before a court, to
enable it to decide without delay on the legality of
the detention and or d er their release if justified. I n
other words, the Philippine authorities are u n d er
obligation to make available to every person
under detention such remedies which safeguard their
fundamental right to liberty. These remedies include
the right to be admitted to bail. [38]

This national commitment to uphold the fundamental human rights as well as

value the worth and dignity of every person has authorized the grant of bail not
only to those charged in criminal proceedings but also to extraditees upon a
clear and convincing showing: (1) that the detainee will not be a flight risk or a
danger to the community; and (2) that there exist special, humanitarian and
compelling circumstances. [39]

In our view, his social and political standing and his having immediately
surrendered to the authorities upon his being charged in court indicate that the
risk of his flight or escape from this jurisdiction is highly unlikely. His personal
disposition from the onset of his indictment for plunder, formal or otherwise,
has demonstrated his utter respect for the legal processes of this country. We also
do not ignore that at an earlier time many years ago when he had been charged
with rebellion with murder and multiple frustrated murder, he already evinced
a similar personal disposition of respect for the legal processes, and was granted
bail during the pendency of his trial because he was not seen as a flight risk.[40]
With his solid reputation in both his public and his private lives, his long years of
public service, and history’s judgment of him being at stake, he should be
granted bail.

The currently fragile state of Enrile’s health presents another compelling

justification for his admission to bail, but which the Sandiganbayan did not
recognize.
 (1) Chronic Hypertension with fluctuating blood
pressure levels on multiple drug therapy;
(Annexes 1.1, 1.2, 1.3);

(2) Diff use atherosclerotic cardiovascular disease

composed of the following:

a. Previous history of cerebrovascular

disease with carotid and vertebral
artery disease; (Annexes 1.4, 4.1)
b. Heavy coronary artery calcifications;
(Annex 1.5)
c. Ankle Brachial Index suggestive of
arterial calcifications. (Annex 1.6)

(3) Atrial and Ventricular Arrhythmia

(irregular heart beat) documented by
Holter monitoring; (Annexes 1.7.1, 1.7.2)

(4) Asthma-COPD Overlap Syndrom (ACOS) and

postnasal drip syndrome; (Annexes 2.1, 2.2)

(5) Ophthalmology:

a. Age-related mascular degeneration, neovascular

s/p laser of the Retina, s/p Lucentis intra-ocular
injections; (Annexes 3.0, 3.1, 3.2)
b. S/p Cataract surgery with posterior chamber
intraocular lens. (Annexes 3.1, 3.2)

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

. b High cholesterol levels/dyslipidemia;
c.
e. Alpha thalassemia;
Upper gastrointestinal bleeding
d. Gait/balance
(etiology disorder;
uncertain) in 2014;
f. Benign prostatic hypertrophy (with documented
enlarged prostate on recent ultrasound). [42]
Dr. Gonzales attested that the following medical conditions, singly or collectively,
could pose significant risks to the life of Enrile, to wit: (1) uncontrolled
hypertension, because it could lead to brain or heart complications, including
recurrence of stroke; (2) arrhythmia, because it could lead to fatal or non-fatal
cardiovascular events, especially under stressful conditions; (3) coronary
calcifications associated with coronary artery disease, because they could
indicate a future risk for heart attack under stressful conditions; and (4)
exacerbations of ACOS, because they could be triggered by certain circumstances
(like excessive heat, humidity, dust or allergen exposure) which could cause a
deterioration in patients with asthma or COPD.[43]

Based on foregoing, there is no question at all that Enrile’s advanced age and ill
health required special medical attention. His confinement at the PNP General
Hospital, albeit at his own instance, [44] was not even recommended by the
o ffi cer- in-charge (OIC) and the internist doctor of that medical facility because of
the limitations in the medical support at that hospital. Their testimonies ran as
follows:

xxxx

JUSTICE MARTIRES:
The question is, do you feel comfortable with the continued
confinement of Senator Enrile at the Philippine National Police
 Hospital?

DR. SERVILLANO:
No, Your Honor.

JUSTICE MARTIRES:
Director, doctor, do you feel comfortable with the
continued confinement of Senator Enrile at the PNP
Hospital?

PSUPT. JOCSON:
No, Your Honor.

JUSTICE MARTIRES:
Why?

PSUPT. JOCSON:
Because during emergency cases, Your Honor, we
cannot give h i m the best.

xxxx

JUSTICE MARTIRES:
At present, since you are the attending physician of the accused,
Senator Enrile, are you happy o r have any fear in your
heart of the present condition of the accused v i s a
v i s the facilities of the hospital?

DR. SERVILLANO:
Yes, Your Honor. I have a fear.

JUSTICE MARTIRES:
That you will not be able to address in an
emergency situation?

DR. SERVILLANO:
Your Honor, in case of emergency situation we can
handle it but probably if the condition of the
patient worsen, we have no
facilities to do those things, Your Honor. [45]

xxxx

Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the
charge, provided his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed, denying him bail despite
imperiling his health and life would not serve the true objective of preventive
incarceration during the trial.

Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court
has already held in Dela Rama v. The People’s Court:[46]

x x x This court, in disposing of the first petition for certiorari, held

the following:

x x x [U]nless allowance of bail is forbidden by

law in the particular case, the illness of the
prisoner, independently of the merits of the
case, is a circumstance, and the humanity
of the law makes it a consideration which
should, regardless of the charge and the
stage of the proceeding, influence the court
to exercise its discretion
 Considering the report of the Medical Director of the Quezon Institute
to the effect that the petitioner “is actually suffering from minimal,
early, unstable type of pulmonary tuberculosis, and chronic, granular
pharyngitis,” and that in said institute they “have seen similar cases,
later progressing into advance stages when the treatment and medicine
are no longer of any avail;” taking into consideration that the
petitioner’s previous petition for bail was denied by the People’s Court
on the ground that the petitioner was suffering from quiescent and not
active tuberculosis, and the implied purpose of the People’s Court in
sending the petitioner to the Quezon Institute for clinical examination
and diagnosis of the actual condition of his lungs, was evidently to
verify whether the petitioner is suffering from active tuberculosis, in
order to act accordingly in deciding his petition for bail; and
considering further that the said People’s Court has adopted and
applied the well-established doctrine cited in our above-quoted
resolution, in several cases, among them, the cases against Pio Duran
(case No. 3324) and Benigno Aquino (case No. 3527), in which the said
defendants were released on bail on the ground that they were ill and
their continued confinement in New Bilibid Prison would be injurious
to their health or endanger their life; it is evident and we consequently
hold that the People’s Court acted with grave abuse of discretion in
refusing to release the petitioner on bail.[48]

It is relevant to observe that granting provisional liberty to Enrile will then

enable him to have his medical condition be properly addressed and better
attended to by competent physicians in the hospitals of his choice. This will not
only aid in his adequate preparation of his defense but, more importantly,
will guarantee his appearance in court for the trial.

On the other hand, to mark time in order to wait for the trial to finish before a
meaningful consideration of the application for bail can be had is to defeat the
objective of bail, which is to entitle the accused to provisional liberty pending the
trial. There may be circumstances decisive of the issue of bail – whose existence
is either admitted by the Prosecution, or is properly the subject of judicial notice
– that the courts can already consider in resolving the application for bail
without awaiting the trial to finish.[49] The Court thus balances the scales of
justice by protecting the interest of the People through ensuring his personal
appearance at the trial, and at the same time realizing for him the guarantees of
due process as well as to be presumed innocent until proven guilty.

Accordingly, we conclude 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. As such, the Sandiganbayan gravely abused its discretion in
denying Enrile’s Motion To Fix Bail. Grave abuse of discretion, as the
ground for the issuance of the writ of certiorari, connotes whimsical and
capricious exercise
of judgment as is equivalent to excess, or lack of jurisdiction. [50] The abuse must
be so patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.[51]

WHEREFORE, the Court GRANTS the petition for certiorari; ISSUES the
writ of certiorari ANNULING and SETTING ASIDE the Resolutions
issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238 on
July 14, 2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE
of petitioner Juan Ponce Enrile in Case No. SB-14-CRM-0238 upon posting of a
cash bond of P1,000,000.00 in the Sandiganbayan; and DIRECTS the
immediate release of petitioner Juan Ponce Enrile from custody unless he is
being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.

Velasco, Jr., J., Leonardo-De Castro, Brion, Perez, and

Mendoza, JJ., concur.
Peralta, J., concurs for humanitarian reasons.
Del Castillo, J., concurs in the result based on humanitarian grounds.
Sereno, C.J., Carpio and Perlas-Bernabe, JJ., join the dissent of J.
Leonen. Leonen, J., dissents, see separate opinion.
Jardeleza, J., no part, prior OSG action.
Villarama, Jr., J., on o ffi cial leave.
Reyes, J., on sick leave.

NOTICE OF
JUDGMENT
Sirs/Mesdames:

Please take notice that on August 18, 2015 a Decision/Resolution, copy attached
herewith, was rendered by the Supreme Court in the above-entitled case, the
original of which was received by this O ffi ce on August 20, 2015 at 11:15 a.m.

Very truly yours,

(SGD.)
FELIPA G. BORLONGAN-ANAMA
Clerk of Court

[1] See Ariana Lindermayer, What the Right Hand Gives:

Prohibitive of the State Constitutional Right to Bail, Fordham
Interpretations
Law Review, Vol. 78, Issue 1 (2009), pp. 307-309.

[2]Rollo, pp. 79-88; penned by Associate Justice Amparo M. Cabotaje-Tang, and

concurred in by Associate Justice Samuel R. Martires and Associate Justice Alex
L. Quiroz.

3 Id. at 89-102.

4 Id. at 107-108.

5 Id. at 103-157.

6 Id. at 163-192.

7 Id. at 193-221.

8 Id. at 222-241.

9 Id. at 241.

10 Id. at 242-243.

11 Id. at 244-247.

12 Id. at 249-256.
13 Id. at 13.

14 Id. at 84-88.

15 Id. at 89-102.

16 Id. at 16-19.

17 Id. at 526-542.

18 Section 14, (2), Article III of the 1987 Constitution.

19Government of the United States of America v. Purganan,

G.R. No. 148571, September 24, 2002, 389 SCRA 623 where the Court said that
the constitutional right to bail flows from the presumption of innocence in favor
of every accused who should not be subjected to the loss of freedom as
thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt; see also Shima Baradaran, Restoring the Presumption
of Innocence, Ohio State Law Journal, Vol. 72 (2011), p. 728.

20 Baradaran, supra note 19, at 736.

21 Id. at 731.

22 Yap, Jr. v. Court of Appeals, G.R. No. 141529, June 6, 2001, 358 SCRA 564,
572.

23 Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615
SCRA 619,
628.

24 As amended by A.M. No. 00-5-03-SC, December 1, 2000.

25 Section 6, Rule 114 of the Rules of Court.

26 Government of the United States of America v. Purganan, supra

note 19, at 693.

27 Id.

28 Section 4, Rule 114 of the Rules of Court provides:

Section 4. Bail, a matter of right; exception.—All persons in custody

shall be admitted to bail as a matter of right, with su ffi cient sureties, or
released on recognizance as prescribed by law or this Rule (a) before or after
conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal
Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction
by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment.

29 Section 5, Paragraph 1, Rule 114 of the Rules of Court.

30 A.M. No. RTJ-94-1183, February 6, 1995, 241 SCRA 84, 88.

31Gacal v. Infante, A.M. No. RTJ- 04-1845 (Formerly A.M. No. I.P.I. No. 03-
1831- RTJ), October 5, 2011, 658 SCRA 535, 536.
33 Cortes v. Catral, A.M. No. RTJ-97-1387, September 10, 1997, 279 SCRA 1, 11.

34 Id. at 18.

35 Rollo, pp. 252-253.

36 Id. at 260.

37Worthy to mention at this juncture is that the Court En Banc, in

People v. Genosa (G.R. No. 135981, January 15, 2004, 419 SCRA 537), a criminal
prosecution for parricide in which the penalty is reclusion perpetua to
death under Article 246 of the Revised Penal Code, appreciated the
concurrence of two mitigating circumstances and no aggravating
circumstance as a privileged mitigating circumstance, and consequently
lowered the penalty imposed on the accused to reclusion temporal in its
medium period.

38Government of Hong Kong Special Administrative Region v.

Olalia, Jr., G.R. No. 153675, April 19, 2007, 521 SCRA 470, 482 (bold
underscoring supplied for emphasis).

39Rodriguez v. Presiding Judge, RTC, Manila, Br. 17, G.R. No.157977,

February 27, 2006, 483 SCRA 290, 298.

40 Rollo, pp. 559, 571-576.

41 Id. at 339-340 (TSN of July 14, 2014).

42 Id. at 373-374 (bold underscoring supplied for emphasis).

43 Id. at 334-335, 374-375.

44 Id. at 244-247.

45 Id. at 485-488 (TSN of September 4, 2014).

4677 Phil. 461 (October 2, 1946), in which the pending criminal case against
the petitioner was for treason.

47 Id. at 462.

48 Id. at 465-466.

49Bravo, Jr. v. Borja, No. L-65228, February 18, 1985, 134 SCRA 466,
where the Court observed:

To allow bail on the basis of the penalty to be actually imposed would require
a consideration not only of the evidence of the commission of the crime but
also evidence of the aggravating and mitigating circumstances. There would then
be a need for a complete trial, after which the judge would be just about
ready to render a decision in the case. As perceptively observed by the Solicitor
General, such procedure would defeat the purpose of bail, which is to entitle the
accused to provisional liberty pending trial.

50Republic v. Sandiganbayan (Second Division), G.R. No. 129406,

March 6, 2006, 484 SCRA 119, 127; Litton Mills, Inc. v. Galleon Trader,
Inc., G.R. No. L-40867, July 26, 1988, 163 SCRA 489, 494.
[51]Angara v. Fedman Development Corporation, G.R. No. 156822,
October 18, 2004, 440 SCRA 467, 478; Duero v. Court of Appeals, G.R. No.
131282, January 4,
2002, 373 SCRA 11, 17.

DISSENTING OPINION

All persons, ex c ept t h o s e c h a r g e d w i t h off enses

punishable by reclusion perpetua when
e v i d e n c e o f g u i l t is s t r o n g , shall, before conviction,
be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to
bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended. Excessive bail
shall not be required. - Const., art. III, sec. 13

The law, in its majestic equality, forbids the rich as well

as the poor to sleep under bridges, to beg in the streets,
and to steal bread. –

The Red Lily, Chapter 7 (1894) by Anatole France, French

novelist (1844-
1924)

LEONEN, J.:

I dissent.

This Petition for Certiorari should not be granted. The action of the
Sandiganbayan in denying the Motion to Fix Bail was proper. Bail is not a matter
of right in cases where the crime charged is plunder and the imposable penalty
is reclusion perpetua.

Neither was there grave abuse of discretion by the Sandiganbayan when it failed
to release accused on bail for medical or humanitarian reasons. His release for
medical and humanitarian reasons was not the basis for his prayer in his Motion
to Fix Bail[1] filed before the Sandiganbayan. Neither did he base his prayer for
the grant of bail in this Petition on his medical condition.

The grant of bail, therefore, by the majority is a special accommodation for

petitioner. It is based on a ground never raised before the Sandiganbayan or in
the pleadings filed before this court. The Sandiganbayan should not be faulted
for not shedding their neutrality and impartiality. It is not the duty of an
impartial court to find what it deems a better argument for the accused at the
expense of the prosecution and the people they represent.

The allegation that petitioner suffers from medical conditions that require very
special treatment is a question of fact. We cannot take judicial notice of the truth
contained in a certification coming from one doctor. This doctor has to be
presented as an expert witness who will be subjected to both direct and cross-
examination so that he can properly manifest to the court the physical basis for
his inferences as well as the nature of the medical condition of petitioner.
Rebutting evidence that may be presented by the prosecution should also be
considered. All this would be proper before the Sandiganbayan. Again, none of
this was considered by the Sandiganbayan because petitioner insisted that he
was entitled to bail as a matter of right on grounds other than his medical
condition.

Furthermore, the majority’s opinion—other than the invocation of a general

human rights principle—does not provide clear legal basis for the grant of bail
on humanitarian grounds. Bail for humanitarian considerations is neither
presently provided in our Rules of Court nor found in any statute or provision of
This case leaves this court open to a justifiable criticism of granting a privilege ad
hoc: only for one person—petitioner in this case.

Worse, it puts pressure on all trial courts and the Sandiganbayan that will
predictably be deluged with motions to fix bail on the basis of humanitarian
considerations. The lower courts will have to decide, without guidance, whether
bail should be granted because of advanced age, hypertension, pneumonia, or
dreaded diseases. They will have to decide whether this is applicable only to
Senators and former Presidents charged with plunder and not to those accused
of drug tra ffi cking, multiple incestuous rape, serious illegal detention, and other
crimes punishable by reclusion perpetua or life imprisonment. They will
have to decide whether this is applicable only to those who are in special
detention facilities and not to the aging or sick detainees in overcrowded
detention facilities all over this country.

Our trial courts and the Sandiganbayan will decide on the basis of personal
discretion causing petitions for certiorari to be filed before this court. This will
usher in an era of truly selective justice not based on clear legal provisions, but
one that is unpredictable, partial, and solely grounded on the presence or
absence of human compassion on the day that justices of this court deliberate
and vote.

Not only is this contrary to the Rule of Law, it also undermines the legitimacy
and the stability of our entire judicial system.

On June 5, 2014, Senator Juan Ponce Enrile (Enrile) was charged with the crime
of plunder punishable under Republic Act No. 7080.[2] Section 2 of this law
provides:

SEC. 2. Definition of the Crime of Plunder, Penalties. - Any

public o ffi cer who, by himself or in connivance with members of his
family, relatives by a ffi nity or consanguinity, business associates,
subordinates or other persons, amasses accumulates or acquires ill-
gotten wealth through a combination or series of overt or criminal acts
as described in Section 1
(d) hereof in the aggregate amount or total value of at least Fifty
million pesos (P50,000,000.00) shall be guilty of the crime of plunder
a n d s h a l l b e p u n i s h e d b y r e c l u s i o n p e r p e t u a to
death[.] (Emphasis supplied)

On June 10, 2014, Enrile filed an Omnibus Motion before the Sandiganbayan,
praying that he be allowed to post bail if the Sandiganbayan should find
probable cause against him. [3] On July 3, 2014, the Sandiganbayan denied the
Omnibus Motion on the ground of prematurity since no warrant of arrest had
been issued at that time. In the same Resolution, the Sandiganbayan ordered
Enrile’s arrest.[4]

On the same day the warrant of arrest was issued and served, Enrile proceeded
to the Criminal Investigation and Detection Group of the Philippine National
Police in Camp Crame, Quezon City.[5]

On July 7, 2014, Enrile filed a Motion to Fix Bail, arguing that his alleged age and
voluntary surrender were mitigating and extenuating circumstances that would
lower the imposable penalty to reclusion temporal.[6] He also argued that
his
alleged age and physical condition indicated that he was not a flight risk.[7] His
prayer states:

WHEREFORE, accused Enrile prays that the Honorable Court allow

Enrile to post bail, and forthwith set the amount of bail pending
 mitigating circumstances of at least 70 years old and voluntary
surrender will not lower the imposable penalty to reclusion
temporal;
and (c) Enrile is a flight risk [sic].[8]

The O ffi ce of the Ombudsman filed its Opposition to the Motion to Fix Bail[9]
dated July 9, 2014. Enrile filed a Reply[10] dated July 11, 2014.

Pending the resolution of his Motion to Fix Bail, Enrile filed a Motion for
Detention at the PNP General Hospital[11] dated July 4, 2014, arguing that “his
advanced age and frail medical condition” [12] merit hospital arrest in the
Philippine National Police General Hospital under such conditions that may be
prescribed by the Sandiganbayan. [ 13] He also prayed that in the event of a
medical emergency that cannot be addressed by the Philippine National Police
General Hospital, he may be allowed to access an outside medical facility.[14] His
prayer states:

WHEREFORE, accused Enrile prays that the Honorable Court

temporarily place him under hospital confinement at the PNP General
Hospital at Camp Crame, Quezon City, with continuing authority given
to the hospital head or administrator to exercise his professional
medical judgment or discretion to allow Enrile's immediate access of,
or temporary visit to, another medical facility outside of Camp Crame,
in case of emergency or necessity, secured with appropriate guards, but
after completion of the appropriate medical treatment or procedure, he
be returned forthwith to the PNP General Hospital.[15]

After the prosecution’s submission of its Opposition to the Motion for Detention
at the PNP General Hospital, the Sandiganbayan held a hearing on July 9, 2014 to
resolve this Motion.

On July 9, 2014, the Sandiganbayan issued an Order allowing Enrile to remain at

the Philippine National Police General Hospital for medical examination until
further orders of the court.[16]

This Order regarding his detention at the Philippine

National Police General Hospital is n o t t h e s u b j e c t o f t h i s
Pe t i t i o n f o r C e r t i o r a r i . E n r i l e d i d n o t a s k t h a t t h i s
O r d e r be d e c l a r e d i n v a l i d o r n u l l a n d void.

On July 14, 2014, the Sandiganbayan issued the Resolution[17] denying Enrile’s
Motion to Fix Bail for being premature, [18] stating that:

[I]t is only after the prosecution shall have presented its evidence and
the Court shall have made a determination that the evidence of guilt is
not strong against accused Enrile can he demand bail as a matter of
right. Then and only then will the Court be duty-bound to fix the
amount of his bail.

To be sure, no such determination 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.[19]

Enrile filed a Motion for Reconsideration, [20] reiterating that there

were mitigating and extenuating circumstances that would modify the
imposable
penalty and that his frail health proved that he was not a flight risk.[21] The
 II

The Sandiganbayan did not commit grave abuse of discretion when it denied the
Motion to Fix Bail for prematurity. It was following entrenched and canonical
procedures for bail based upon the Constitution and the Rules of Court.

A trial court—in this case, the Sandiganbayan—acquires jurisdiction over the

person of the accused through his or her arrest.[23] The consequent detention is
to ensure that the accused will appear when required by the Rules and by order
of the court trying the offense. [24] The provisions on bail provide a balance
between the accused’s right to be presumed innocent on one hand and the due
process rights of the state to be able to effect the accused’s prosecution on the
other hand. That balance is not exclusively judicially determined.
The Constitution frames judicial discretion.

Thus, Article III, Section 13 states:

Article III

Bill of Rights

....

SECTION 13. All persons, except those charged with offenses

punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by su ffi cient sureties, or be
released on recognizance as may be provided by law. The right to bail
shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.

The doctrine on bail is so canonical that it is clearly provided in our Rules of

Court. The grant of bail is ordinarily understood as two different concepts: (1)
bail as a matter of right and (2) bail as a matter of discretion. Thus, Sections 4
and 5 of Rule 114 provide:

SEC. 4. Bail, a matter of right; exception. – All persons in

custody shall be admitted to bail as a matter of right, with
su ffi cient sureties, or released on recognizance as prescribed by law or
this Rule (a) before or after conviction by the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal
Circuit Trial Court, and (b) before conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua,
or life imprisonment.

SEC. 5. Bail, when discretionary. – Upon conviction by the

Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment, admission to bail is discretionary.
The application for bail may be filed and acted upon by the trial court
despite the filing of a notice of appeal, provided it has not transmitted
the original record to the appellate court. However, if the decision
of the trial court convicting the accused changed the nature of
the offense from non- bailable to bailable, the application for bail can
only be filed with and resolved by the appellate court.

Then in Section 7 of Rule 114:

SEC. 7. Capital offense or an offense punishable by

reclusion perpetua or life imprisonment, not bailable. –
No 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
p r o s e c u t i o n . (Emphasis supplied)
The mandatory bail hearing is only to determine the amount of bail when it is a
matter of right. On the other hand, mandatory bail hearings are held when an
accused is charged with a crime punishable by reclusion perpetua or
life imprisonment, not only to fix the amount of bail but fundamentally to
determine whether the evidence of guilt is strong.

The mandatory character of a bail hearing was first addressed in the 1945 case of
Herras Teehankee v. Rovira[25] where this court ordered the People’s
Court to conduct a bail hearing despite the accused being charged with a capital
offense.
[26]This court reasoned that “the hearing is for the purpose of enabling the
People’s Court to exercise its sound discretion as to whether or not under the
Constitution and laws in force[,] petitioner is entitled to provisional release
under bail.” [27]

A year later, this court clarified its orders to the People’s Court and gave the
following instructions:

(1)In capital cases like the present, when the prosecutor does
not oppose the petition for release on bail, the court should, as a
general rule, in the proper exercise of its discretion, grant the release
after the approval of the bail which it should fix for the purpose;

(2)But if the court has reasons to believe that the special

prosecutor’s attitude is not justified, it may ask him questions to
ascertain the strength of the state’s evidence or to judge the adequacy
of the amount of bail;

(3)When, however, the special prosecutor refuses to answer

any particular question on the ground that the answer may
involve a disclosure imperiling the success of the prosecution or
jeopardizing the public interest, the court may not compel him to do so,
if and when he exhibits a statement to that effect of the Solicitor
General, who, as head of the O ffi ce of Special Prosecutors, is vested
with the direction and control of the prosecution, and may not, even at
the trial, be ordered by the court to present evidence which he does
not want to introduce— provided, of course, that such refusal shall
not prejudice the rights of
the defendant or detainee.[28]

The ruling in Herras Teehankee was applied in Ocampo v. Bernabe:[29]

We have held in Herras Teehankee vs. Director of Prisons, that all

persons shall before conviction be bailable except when the charge is a
capital offense and the evidence of guilt is strong. The general
rule, therefore, is that all persons, whether charged or
not yet charged, are, before their conviction, entitled to
provisional release on bail, the only exception being
where the charge is a capital offense and the evidence of
guilt is found to be strong. At the hearing of the
application for bail, the burden of showing that the case
falls within the exception is on the prosecution,
according to Rule 110, section 7. The determination of
whether or not the evidence of guilt is strong is, as stated in the Herras
Teehankee case, a matter of judicial discretion. This discretion, by the
very nature of things, may rightly be exercised only after the evidence
is submitted to the court at the hearing. Since the discretion is directed
to the weight of evidence and since evidence cannot properly be
weighed if not duly exhibited or produced before the court, it is
obvious that a proper exercise of judicial discretion requires that the
evidence of guilt be submitted to the court, the petitioner having the
right of cross-examination and to introduce his own evidence in
rebuttal. Mere a ffi davits or recital of their contents are not su ffi cient
Herras Teehankee was also applied in Feliciano v. Pasicolan, etc., et
al.[31] and
Siazon v. Hon. Presiding Judge of the Circuit Criminal Court, etc., et
al.[32]

We have disciplined numerous judges who violated this court’s instructions on

the application of the constitutional provisions regarding bail.

Basco v. Judge Rapatalo[33] outlines these administrative cases promulgated

from
1981 to 1996.[34] Unfortunately, there were still administrative complaints filed
against judges for failing to hold a hearing for bail even after the promulgation
of Basco.

In Cortes v. Judge Catral,[35] this court ordered Judge Catral to pay a

fine of
P20,000.00 for granting bail to the accused charged with capital offenses. [36] This
court could only lament on the deluge of these administrative cases, stating:

It is indeed surprising, not to say, alarming, that the Court should be

besieged with a number of administrative cases filed against erring
judges involving bail. After all, there is no dearth of jurisprudence on
the basic principles involving bail. As a matter of fact, the Court itself,
through its Philippine Judicial Academy, has been including lectures on
the subject in the regular seminars conducted for judges. Be that as it
may, we reiterate the following duties of the trial judge in case an
application for bail is filed:

“1. In all cases, whether bail is a matter of right or of

discretion, notify the prosecutor of the hearing of the
application for bail or require him to submit his
recommendation (Section 18, Rule 114 of the Rules of Court as
amended);

2.Where bail is a matter of discretion, conduct a hearing

of the application for bail regardless of whether or not
the prosecution refuses to present evidence to show that the
guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion; (Section 7 and 8, supra)

3.Decide whether the guilt of the accused is strong based

on the summary of evidence of the prosecution;

4.If the guilt of the accused is not strong, discharge

the accused upon the approval of the bailbond (Section 19,
supra) Otherwise petition should be denied.”

With such succinct but clear rules now incorporated in the Rules of
Court, trial judges are enjoined to study them well and be guided
accordingly. Admittedly, judges cannot be held to account for an
erroneous decision rendered in good faith, but this defense is much too
frequently cited even if not applicable. A number of cases on bail
having already been decided, this Court justifiably expects judges to
discharge their duties assiduously. For a judge is called upon to exhibit
more than just a cursory acquaintance with statutes and procedural
rules; it is imperative that he be conversant with basic legal principles.
Faith in the administration of justice can only be engendered if litigants
are convinced that the members of the Bench cannot justly be charged
with a deficiency in their grasp of legal principles.[37]
Judge Bugtas initially denied the accused’s petition for bail but granted his
motion for reconsideration and set his bail without a hearing. [40] As a result,
Judge Bugtas was ordered to pay a fine of P20,000.00[41] for being “grossly
ignorant of the rules and procedures in granting or denying bail[.]”[42]

In Marzan-Gelacio v. Judge Flores,[43] the erring judge was ordered to pay

a fine of P10,000.00 for granting bail to the accused charged with rape
without a
hearing. [44]

In Chief State Prosecutor Zuño v. Judge Cabebe,[45] Judge Cabebe

was fined P20,000.00 for granting bail, without the requisite hearing, to
the accused
charged with possession of illegal drugs.[46]

A bail hearing is mandatory even if the accused has not filed an application for
bail or the prosecutor already recommends an amount for bail.

In Atty. Gacal v. Judge Infante:[47]

Even where there is no petition for bail in a case like Criminal Case No.
1138-03, a hearing should still be held. This hearing is separate and
distinct from the initial hearing to determine the existence of probable
cause, in which the trial judge ascertains whether or not there is
su ffi cient ground to engender a well-founded belief that a crime has
been committed and that the accused is probably guilty of the crime.
The Prosecution must be given a chance to show the strength of its
evidence; otherwise, a violation of due process occurs.

....

Being the trial judge, Judge Infante had to be aware of the precedents
laid down by the Supreme Court regarding the bail hearing being
mandatory and indispensable. He ought to have remembered, then,
that it was only through such hearing that he could be put in a position
to determine whether the evidence for the Prosecution was weak or
strong. Hence, his dispensing with the hearing manifested a gross
ignorance of the law and the rules.[48]

In the present charge of plunder, petitioner now insists that this court justify that
bail be granted without any hearing before the Sandiganbayan on whether the
evidence of guilt is strong. During the hearing on petitioner’s Motion to Fix Bail,
the prosecution argued that any grant of bail should be based only on their
Building on consistent
failure to establish precedent,
the strength the Sandiganbayan
of the evidence against him.[49]correctly denied
The prosecution
petitioner’s Motion to Fix Bail for being premature. The denial is neither
had no opportunity to present rebuttal evidence based on the prematurity of the
Motion.
“capricious, whimsical, arbitrary [nor] despotic”[50] as to amount to grave abuse
of discretion. It was in accord with the clear provisions of the Constitution,
jurisprudence, and long-standing rules of procedure.

Thus, this could not have been the basis for declaring that the Sandiganbayan
gravely abused its discretion when it denied petitioner’s Motion to Fix Bail.

III

The Sandiganbayan did not commit grave abuse of discretion when it failed to
release petitioner on bail for medical or humanitarian reasons. Petitioner did not
ask that bail be granted because of his medical condition or for humanitarian
reasons. Neither petitioner nor the prosecution as respondent developed their
arguments on this point at the Sandiganbayan or in this court to establish the
legal and factual basis for this special kind of bail in this case.

Yet, it now becomes the very basis for petitioner’s grant of bail.

In his Petition before this court, petitioner argued that:

A. Before judgment of the Sandiganbayan, Enrile is bailable as a matter of
right. Enrile may be deemed to fall within the exception only
upon concurrence of two (2) circumstances: (i) where the offense is
punishable by reclusion perpetua, and (ii) when evidence of
guilt is strong.
·
It is the duty and burden of the prosecution to show clearly and
conclusively that Enrile falls within the exception and exclusion from
the right; and not the burden of Enrile to show entitlement to his right.

The prosecution failed to establish that Enrile’s case falls within the
exception; hence, denial of his right to bail by the Sandiganbayan was
in grave abuse of discretion.

B. The prosecution failed to show clearly and conclusively that Enrile, if ever
he would be convicted, is punishable by reclusion perpetua; hence,
Enrile is entitled to bail as a matter of right.

The Sandiganbayan ignored the fact that the penalty prescribed by the
Anti-Plunder Law itself for the crime of plunder is not only
reclusion perpetua but also the penalty next lower in degree
(or reclusion temporal) by “consider(ing) the attendance of
mitigating and extenuating circumstances, as provided by the Revised
Penal Code.”

Further proceedings to receive evidence of mitigating circumstances is

a needless formality.

C. The prosecution failed to show clearly and conclusively that evidence of

Enrile’s guilt (if ever) is strong; hence, Enrile is entitled to bail as a
matter of right.
·
Notwithstanding that the prosecution did not assert, hence failed to
raise in issue, in its Opposition to Enrile’s motion for bail, that evidence
of guilt is strong, in the light of the prosecution’s continuing muteness
to the defense’s repeated challenge for the prosecution to produce any
“single piece of paper showing that Enrile received even a single peso
of kickback,” the Sandiganbayan nonetheless insisted that Enrile must
first initiate, and formally apply for, the formal proceedings (“bail
hearing”) before the prosecution may be called upon to discharge its
duty of proving evidence of guilt is strong.

D. At any rate, Enrile may be bailable as he is not a flight risk.

The exception to, or exclusion from, the right (“shall be bailable”) does
not become a prohibition (“shall not be bailable”). Indeed, the
exception to a mandatory right (“shall”) is a permissive right (“may”).

A liberal interpretation is consistent with the rights to presumptive

innocence and non-deprivation of liberty without due process, and the
theory behind the exception to right-to-bail.

Hence, if the theory is clearly shown not to exist as to Enrile (i.e., Enrile
is demonstrated not being a flight risk), then bail may be granted to
him.
 Enrile is definitely not a flight risk, being of old age, frail physical and
medical condition, and having voluntarily surrendered.

Circumstances of o ffi cial and social standing shows that Enrile is not a

flight risk.

Other circumstances negating Enrile’s disposition to become a fugitive

from justice are also present.

The following illustrative cases decided by the Supreme Court show

that at this stage of the proceeding, Enrile is entitled to bail a matter of
right.[51]

The prayer in his Petition reads:

WHEREFORE, petitioner Enrile respectfully prays that the Honorable

Court:

a. ACT En Banc on the Petition for Certiorari;

b. EXPEDITE the certiorari proceedings;

c. SET the Petition for Certiorari for oral arguments; and

d. after due proceedings, ANNUL, REVERSE, and SET ASIDE the

Sandiganbayan’s Resolution dated July 14, 2014,
and the Resolution dated August 8, 2014, and forthwith
GRANT BAIL in favor of Enrile.

Petitioner Enrile prays for such other and further relief as may be just
and equitable.[52]

IV

This case entailed long, arduous, and spirited discussion among the justices of
this court in and out of formal deliberations. As provided by our rules and
tradition, the discussion was triggered by the submission of the member in
charge of a draft early this year. The draft mainly adopted the legal arguments of
the Petition which was centered on this court taking judicial notice of evidence
to establish two generic mitigating circumstances that would lower the penalty
to be imposed even before trial or a hearing for the determination of whether
the evidence of guilt is strong happened before the Sandiganbayan. Associate
Justice Estela Perlas-Bernabe and this member submitted their reflections on this
issue. Refutations and arguments were vigorously exchanged in writing.

Associate Justice Estela Perlas-Bernabe and this member adopted the common
position that there was no grave abuse of discretion and, therefore, the Petition
should be dismissed. At most, the Motion to Fix Bail could be treated by the
Sandiganbayan as a petition or application for bail as in all cases where the
statutorily imposable penalty is reclusion perpetua, death, or life
imprisonment. Associate Justice Estela Perlas-Bernabe and this member
differed only in the treatment of mitigating circumstances and the
interpretation of Bravo, Jr., etc. v.
Hon. Borja, et al.[53]

When this case was called again for deliberation during the En Banc session on
August 11, 2015, the member in charge (now the ponente) proposed the idea of
dropping all discussion on the legal points pertaining to whether bail was a
matter of right and focusing the grant of bail on “humanitarian” grounds. The
member in charge committed to circulate a draft for the consideration of all
justices. This member expressed that he was open to listen to all arguments.

The revised draft that centered on granting bail on the basis of the medical
condition of petitioner was circulated on August 14, 2015. After considered
reflection, this member responded with a letter addressed to all the justices,
which stated:

In my view, there are several new issues occasioned by the revisions in

the proposed ponencia that need to be threshed out thoroughly so that
the Sandiganbayan can be guided if and when an accused charged with
offenses punishable with reclusion perpetua should be released on
bail “for humanitarian reasons.”

Among these are as follows:

First: Did the Sandiganbayan commit grave abuse of discretion

amounting to lack of jurisdiction when it applied the text of the
Constitution, the rules of court, and the present canonical
interpretations of these legal texts?

Second: Are we taking judicial notice of the truth of the contents of the
certification of a certain Dr. Gonzalez? Or are we suspending our rules
on evidence, that is, doing away with cross examination and not
appreciating rebutting evidence that may be or have been presented by
the prosecution?

Third: Did the Sandiganbayan commit grave abuse of discretion in

appreciating the facts relating to the medical condition of the accused?
Or, are we substituting our judgment for theirs?

Fourth: What happens to the standing order of the Sandiganbayan

which authorizes the accused to be brought to any hospital
immediately if he exhibits symptoms which cannot be treated by the
PNP hospital subject only to reportorial requirements to the court? Are
we also declaring that the Sandiganbayan’s decisions in relation to
their supervision of the detention of the accused were tainted with
grave abuse of discretion?

Fifth: What, if any, is the legal basis for humanitarian releases on bail?
Or, if we are able to hurdle the factual issues and find that there is
actually a medical necessity, should his detention rather be modified?
Do we have clear judicial precedents for hospital or house arrests for
everyone?

Sixth: 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?

Seventh: What is the basis for P500,000.00 as bail? We have established

rules on what to consider when setting the amount of bail. In relation
to the accused and his circumstances, what is our basis for setting this
amount? What evidence have we considered? Should this Court rather
than the Sandiganbayan exercise this discretion?

Eighth: 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?
Is it simply his advanced age? What qualifies for advanced age? Is it the
medical conditions that come with advanced age? Would this apply to
all those who have similar conditions and are also undergoing trial for
plunder? Is he suffering from a unique debilitating disease which
cannot be accommodated by the best care provided by our detention
facilities or hospital or house arrest? Are there su ffi cient evidence and
rules to support our conclusion?

Ninth: Are there more specific and binding international law

 provisions, other than the Universal Declaration of Human Rights,
which specifically compel the release of an accused in his condition?
Or, are we now reading the general tenor of the declaration of human
rights to apply specifically to the condition of this accused? What
entitles the accused in this case to a liberal application of very general
statements on human rights?[54]

The points in my letter were raised during the deliberations of August 18, 2015.
The member in charge, however, did not agree to wait for a more extensive
written reflection on the points raised. I n s i s t i n g o n a vot e, h e t h u s
d e c l a r e d t h a t h e w a s a b a n d o n i n g t h e A u g u s t 14, 2015
circulated draft centering on release on bail on
h u m a n i t a r i a n grounds f or his earlier version premised
o n the i dea t h a t ba i l w a s a m a t t e r of r i g h t based o n
j u d i c i a l n o t i c e a n d the j u d i c i a l d e c l a r a t i o n o f t h e
ex i s t en c e o f t w o m i t i g a t i n g c i r c u m s t a n c e s .

This was the version voted upon at about 11:00 a.m. of August 18, 2015. The only
amendment to the majority opinion accepted by the member in charge was the
increase of the proposed amount of bail to P1,000,000.00.

The vote was 8 to 4 with Associate Justice Lucas P. Bersamin, who was the
member in charge, emerging as the ponente. Chief Justice Maria Lourdes P. A.
Sereno, Senior Associate Justice Antonio T. Carpio, Associate Justice Estela Perlas-
Bernabe, and this member dissented.

During the oral arguments on the Torre de Manila case or at about 3:00 p.m., the
p o n e n t e p a s s e d a r o u n d a fi n a l c o p y o f t h e m a j o r i t y
opinion w h i c h w a s not the version voted u p o n d u r i n g
t h e m o r n i n g ’ s d e l i b e r a t i o n . Rather, the copy offered for signature
was substantially the August 14, 2015 circulated version granting bail on
humanitarian grounds.

The current ponencia now does away with petitioner’s entire argument, stating
that:

Yet, we do not now determine the question of whether or not Enrile’s

averment on the presence of the two mitigating circumstances could
entitle him to bail despite the crime alleged against him being
punishable with reclusion perpetua, simply because the
determination, being primarily factual in context, is ideally to be
made by the trial
court.[55] (Citation omitted)

Ordinarily, the drafts of the dissents would have been available to all members
of the court at the time that the case was voted upon. But because the final
version for signing was not the version voted upon, this member had to
substantially revise his dissent. Since the issue of mitigating circumstances and
bail as a matter of right was no longer the basis of the ponencia, Associate Justice
Estela Perlas-Bernabe decided to graciously offer her points for the drafting of a
single Dissenting Opinion and to abandon her filing of a Separate Opinion and
joining this member.

The Internal Rules of the Supreme Court allows one week for the submission of a
dissenting opinion. Thus, in Rule 13, section 7 of A.M. No. 10-4-20-SC:

SEC. 7. Dissenting, separate or concurring opinion. - A

Member who disagrees with the majority opinion, its conclusions, and
the disposition of the case may submit to the Chief Justice or Division
Chairperson a dissenting opinion, setting forth the reason or reasons
for such dissent. A Member who agrees with the result of the
case, but based on different reason or reasons may submit a
separate opinion; a concurrence “in the result” should state the
reason for the qualified concurrence. A Member who agrees with the
 opinion presents the decision for the signature of
the Members. (Emphasis supplied)

But this member endeavored to complete his draft incorporating the ideas and
suggestions of other dissenting justices within two days from the circulation of
the majority opinion.

In the meantime, media, through various means, got wind of the vote and started
to speculate on the contents of the majority opinion. This may have created
expectations on the part of petitioner’s friends, family, and counsel. The
Presiding Justice of the Sandiganbayan, while admitting that the Decision had as
yet not been promulgated and served, made announcements as to their
readiness to receive the cash bond and process the release of the accused even if
August 19, 2015 happened to be a holiday in Quezon City, which was the seat of
their court.

This is the context of the apparent delay in the announcements regarding the
vote and the date of promulgation of this judgment.

Despite brushing aside all of petitioner’s arguments, the majority, instead of

denying the Petition for Certiorari, grants it on some other ground that was not
even argued nor prayed for by petitioner.

In essence, the majority now insists on granting bail merely on the basis of the
certification in a Manifestation and Compliance dated August 14, 2014 by Dr. Jose
C. Gonzales (Dr. Gonzales) stating that petitioner is suffering from numerous
debilitating conditions. [56] This certification was submitted as an annex to a
Manifestation [57] before this court regarding the remoteness of the possibility of
flight of the accused not for the purposes of asking for bail due to such ailments.

Nowhere in the rules of procedure do we allow the grant of bail based on judicial
notice of a doctor’s certification. In doing so, we effectively suspend our rules on
evidence by doing away with cross-examination and authentication of Dr.
Gonzales’ findings on petitioner’s health in a hearing whose main purpose is to
determine whether no kind of alternative detention is possible.

Under Section 2 of Rule 129 of the Revised Rules on Evidence:

SEC. 2. Judicial notice, when discretionary. – A court may

take judicial notice of matters which are of public knowledge, or are
capable of unquestionable demonstration, or ought to be known to
judges because of their judicial functions.

In State Prosecutors v. Muro:[58]

Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits
of the jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety. Hence,
it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety.[59]

Petitioner’s medical ailments are not matters that are of public knowledge or are
capable of unquestionable demonstration. His illness is not a matter of general
notoriety.

Assuming that the medical ailments of petitioner are relevant issues for bail, the
prosecution is now deprived of a fair opportunity to present any evidence that
may rebut the findings of Dr. Gonzales or any other medical documents
presented by petitioner in this Court. Due process requires that we remand this
matter for a bail hearing to verify Dr. Gonzales’ findings and to ensure that that
is still the condition that prevails at present.

That we make factual determinations ourselves to grant provisional liberty to

one who is obviously politically privileged without the benefit of the
presentation of evidence by both the prosecution and the accused, without the
prosecution being granted the opportunity to cross-examine the evidence, and
without consideration of any rebutting evidence that may have been presented
should a hearing be held, casts serious doubt on our neutrality and objectivity.

The better part of prudence is that we follow strictly our well-entrenched, long-
standing, and canonical procedures for bail. Doctrinally, the matter to determine
is whether the evidence of guilt is strong. This is to be examined when a hearing
is granted as a mandatory manner after a petition for bail is filed by the accused.
The medical condition of the accused, if any, should be pleaded and heard.

VI

Assuming without conceding that petitioner suffers from illnesses that require
immediate medical attention, this court has not established clear guidelines for
such releases. The closest that the majority opinion reaches for a standard is:

Bail for the provisional liberty of the accused, regardless of the

crime charged, should be allowed independently of the
merits of the charge, provided his continued incarceration is
clearly shown to be injurious to his health or to endanger his life.
Indeed, denying him bail despite imperiling his health and life
would not serve the true objective of
preventive incarceration during trial.[60] (Emphasis in the original)

To see the logical fallacy of the argument we break it down to its premises:

Premise: There are those whose continued incarceration is clearly shown to be

injurious to their health OR whose lives are endangered due to incarceration.

Premise: Petitioner is suffering from some ailments.

Therefore: Petitioner should be released.

There are various ways to see the fallacy of the

argument.

It is true that it is the duty of courts to ensure

that detention prisoners are
humanely treated. Under A.M. No. 07-3-02-SC,[61] judges of lower courts are
mandated to conduct monthly jail visitations in order to “[e]nsure the promotion
and protection of the dignity and well being” [62] of detention prisoners.
Detention prisoners may also be released to a medical facility on humanitarian
grounds “if their continuous confinement during the pendency of their case
would be injurious to their health or endanger their life.”[63]

In many instances, alternative detention—whether temporary or permanent—is

granted upon a clear showing before the trial court or the Sandiganbayan that
the physical condition of the accused, as proven through evidence presented in
open court, is absolutely requiring medical attention that could not be
accommodated within the current custodial arrangements. Care should,
however, be taken that such alternative custodial arrangements do not take
place more than the time necessary to address the medical condition of the
accused. Likewise, the Sandiganbayan should ensure that alternative custodial
arrangements are not borne by the state and, therefore, should be sensitive to
the possibility that these alternatives are not seen as a privilege given to the
On July 9, 2014[64] and July 15, 2014,[65] the Sandiganbayan already issued
Resolutions allowing accused to remain at the Philippine National Police General
Hospital and continue medical examinations until further orders from the court,
subject to reportorial requirements and at accused’s personal expense. In
particular, the Resolution dated July 9, 2014 states:

Pending receipt of [Dr. Jose C. Gonzales’s report], the Court will hold in
abeyance action on accused Enrile’s motion for detention at the PNP
General Hospital. However, he is allowed to remain thereat until
further orders from this Court. The Director or Administrator of PNP
General Hospital is G R A N T E D A U T H O R I T Y to allow accused
Enrile to access another medical facility outside Camp Crame only (1)
in case of emergency or necessity, and (2) the medical procedure
required to be administered on accused Enrile is not available at,
or cannot be provided for by the physicians of, the PNP General
Hospital, A L L AT THE PERSONAL EXPENSE OF
A C C U S E D E N R I L E . After completion of the medical treatment
or procedure outside Camp Crame, accused Enrile shall be returned
forthwith to the PNP General Hospital. The said director o r
administrator is D I R E C T E D to submit a report to the
Court on such visit/s of accused Enrile to another
medical
facility on the day following the said visit/s.[66]
(Emphasis in the original)

The Resolution dated July 15, 2014 states:

WHEREFORE, premises considered, Dr. Jose C. Gonzales, and/or

any his duly authorized representative/s from the Philippine
General Hospital, is D I R E C T E D to continue with the medical
examination of accused Juan Ponce Enrile and to submit a report and
recommendation to the Court within thirty (30) days from receipt
hereof. The necessary medical examination/s and/or procedure/s as
determined the said doctor/s shall be undertaken at PGH or any
government hospital, which the medical team may deem to have the
appropriate, suitable and/or modern equipment or medical apparatus
and competent personnel to undertake the procedure/s, A L L AT
THE PERSONAL EXPENSE O F ACCU S E D J UA N
PONCE E N R I L E . Pending the completion of the aforesaid
medical examination/s and/or procedure/s and submission of the
required report and recommendation, accused Juan Ponce Enrile is
allowed to remain at the Philippine National Police General Hospital
subject to conditions earlier imposed by the Court in its Resolution
dated July 9, 2014.

S O ORDERED. [ 6 7 ]

These are standing orders of the Sandiganbayan that authorize accused to be

brought to any hospital immediately if he exhibits symptoms that cannot be
treated at the Philippine National Police General Hospital subject only to
reportorial requirements to the court. In granting bail to petitioner, we are, in
effect, declaring that the Sandiganbayan’s decisions in relation to its supervision
of the accused’s detention were tainted with grave abuse of discretion.

However, these orders were not the subject of this Petition for Certiorari.

To the Sandiganbayan, based upon the facts as presented to it, accused does not
seem to be suffering from a unique debilitating disease whose treatment cannot
be provided for by our detention facilities and temporary hospital arrest in
accordance with their order. H o w t h e m a j o r i t y a r r i v e d a t a
c o n c l u s i o n d i ff e r e n t f r o m t h e S a n d i g a n b a y a n h a s n o t
been t h o r o u g h l y explained. N e i t h e r d i d this issue
become the subject of intense discussion by the
part ies t h r o u g h t h ei r pleadings.
conditions and are also undergoing trial for plunder. It is unclear whether
petitioner’s incarceration aggravates his medical conditions or if his medical
conditions are simply conditions which come with advanced age.

The majority has not set specific bases for finding that the medical condition of
petitioner entitles him to treatment different from all those who are now under
detention and undergoing trial for plunder. There is no showing as to how grave
his conditions are in relation to the facilities that are made available to him.
There is also no showing as to whether any of his medical ailments is actually
aggravating in spite of the best care available. If his health is deteriorating, there
is no showing that it is his detention that is the most significant factor or cause
for such deterioration.

Usually, when there is a medical emergency that would make detention in the
hospital necessary, courts do not grant bail. They merely modify the conditions
for the accused’s detention. There is now no clarity as to when special bail based
on medical conditions and modified arrest should be imposed.

Finally, there is no guidance as to whether this special bail based on medical

condition is applicable only to those of advanced age and whether that advanced
age is beyond 90 or 91 years old. There is no guidance as to whether this is
applicable only to cases involving plunder. There is no guidance in the majority’s
opinion as to whether this is only applicable to the medical conditions or stature
or titles of petitioner.

The majority has perilously set an unstated if not ambiguous standard for the
special grant of bail on the ground of medical conditions.

Bail is not a matter of right merely for medical reasons. In People v.

Fitzgerald:
[68]

Bail is not a sick pass for an ailing or aged detainee or prisoner needing
medical care outside the prison facility. A mere claim of illness is not a
ground for bail. It may be that the trend now is for courts to permit bail
for prisoners who are seriously sick. There may also be an existing
proposition for the “selective decarceration of older prisoners” based
on findings that recidivism rates decrease as age increases.[69]

VII

Neither is there clarity in the majority opinion as to the conditions for this
special kind of bail. Thus, the majority asserts:

It is relevant to observe that granting provisional liberty to Enrile will

then enable him to have his medical condition be properly addressed
and better attended to by competent physicians in the hospitals of his
choice. This will not only aid in his adequate preparation of his defense
but, more importantly, will guarantee his appearance in court for the
trial.[70]

Before the ink used to write and print the majority opinion and this dissent has
dried, friends, family, and colleagues of petitioner already strongly predict that
he would report immediately for work. This strongly indicates that the majority’s
inference as to the existence of very serious debilitating illnesses may have been
too speculative or premature.

Significantly, there is no guidance to the Sandiganbayan as to whether bail then

can be cancelled motu propio or upon motion. There is no guidance as to
whether that motion to cancel bail should be filed before the Sandiganbayan or
before this court.

The crime charged in petitioner’s case is one where the imposable penalty is
reclusion perpetua. The Constitution and our rules require that bail can
granted after granting the prosecution the opportunity to prove that evidence of
guilt is strong. The special grant of bail, due to medical conditions, is unique,
extraordinary, and exceptional. To allow petitioner to go about his other duties
would be to blatantly flaunt a violation of the provisions of the Constitution and
our rules.

In other words, there is no rule on whether the grant of provisional liberty on

the basis of humanitarian considerations extends even after the medical
emergency has passed. Again, a case of a decision especially tailored for
petitioner.

VIII

There is no evidentiary basis for the determination of P1,000,000.00 as the

amount for bail. The original proposal of the member in charge was P100,000.00.
This was increased to P500,000.00 in its revised proposal circulated on August 14,
2015. Then, upon the request of one member who voted with the majority, it was
then increased to P1,000,000.00.

The rules guide courts on what to consider when setting the amount of bail.[71]
The majority opinion is sparse on the evidence it considers for setting this
particular amount. Again, the more prudent course of action would have been
for the Sandiganbayan, not this court, to exercise its discretion in setting the
amount of bail.

IX

There are no specific and binding international law provisions that compel this
court to release petitioner given his medical condition. The Universal Declaration
of Human Rights, relied upon in the majority opinion, is a general declaration [72]
to uphold the value and dignity of every person.[73] It 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 only implies that any arrest or detention must
be carried out in a dignified and humane manner.

The majority opinion cites Government of Hong Kong Special

Administrative Region v. Hon. Olalia, Jr.[74] as basis for the grant of
bail on humanitarian
reasons.[75] However, Government of Hong Kong does not apply to
this case because the issue was on whether bail could apply to extradition
cases. This court stated that because of the Universal Declaration of Human
Rights, whose principles are now embodied in the Constitution, bail applies to
all instances where an accused is detained pending trial, including
administrative proceedings such as extradition. This court, however, does not
state that the Universal Declaration of Human Rights mandates that bail must
be granted in instances where the accused is of advanced age and frail health.

Petitioner’s remedies under the Universal Declaration of Human Rights that

safeguard his fundamental right to liberty are qualified by the Constitution.
Article III, Section 13 of the Constitution clearly states that bail is available to all
persons before conviction “except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong[.]” Even Article 29(2) of
the Universal Declaration of Human Rights, the same document used by the
majority opinion, provides that:

(2) In the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the purpose
of securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society.
In any case, even this court in Government of Hong Kong was wary to
grant bail without evidence presented that the accused was not a flight risk.
For this
reason, it remanded the case to the trial court[76] instead of applying
the provisions of the Universal Declaration of Human Rights and
categorically stating that based on these principles alone, the accused was entitled
to bail.

It is true that the Constitution is replete with provisions on both the respect for
human dignity and the protection of human rights. These rights are applicable to
those who, during the dark days of Martial Law, were illegally detained, tortured,
and even involuntarily disappeared. There is, of course, no reason for these
rights and the invocation of human dignity not to be applicable to Senators of
our Republic.

However, the mere invocation of the broadest concept of human rights is not
shibboleth. It should not be cause for us to be nonchalant about the existence of
other constitutional and statutory provisions and the norms in our Rules of
Court. The mere invocation of human rights does not mean that the Rule of Law
is suspended. It is not a shortcut to arrive at the conclusion or result that we
want. Rather, human rights are best entrenched with the Rule of Law.
Suspending the applicability of clear legal provisions upon the invocation of
human rights compels this court to do a more conscious and rigorous analysis of
how these provisions violate specific binding human rights norms.

The majority opinion fails in this respect.

Liberty is indeed a cherished value. It is an intrinsic part of our humanity to fight

for it and ensure that it allows all of us to lead the kind of lives that we will
consider meaningful. This applies to petitioner as accused. Yet it also applies
with equal force to all the individuals in our communities and in
this society.

Our collective liberty, the kind that ensures our individual and collective
meaningful existence, is put at risk if justice is wanting. Special privileges 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.

This dissent rages against such a premise. It is filled with discomfort with the
consequences of the majority’s position. It cannot accept any form of impunity.

X.

Plunder is not the only crime statutorily punished with the imposable penalty of
reclusion perpetua or life imprisonment. Under the Revised Penal Code,
the following crimes, among others, carry this as maximum penalty:

(1) Parricide; [77]

(2) Murder; [78]

(3) Kidnapping and serious illegal detention;[79]

(4) Robbery with homicide; [80]

(5) Robbery with rape;[81]

(6) Robbery with serious physical injuries;[82]

 (8) Rape;[84]

(9) Rape of children under 12 years old;[85]

(10) Sexual assault;[86] and

(11) Incestuous rape.[87]

Under special laws, the following crimes, among others, carry the maximum
penalty of life imprisonment or reclusion perpetua:

(1) Carnapping with homicide or rape;[88]

(2) Sale of illegal drugs regardless of quantity and purity;[89]

(3)Illegal possession of 10 grams or more of heroin, 10 grams or

more of cocaine, 50 grams or more of shabu, 500 grams or
more of
marijuana, or 10 grams or more of ecstasy;[90]

(4) Illegal possession of 10 grams to less than 50 grams of shabu; [91]

(5)Illegal possession of 5 grams to less than 10 grams of

heroin, cocaine, shabu, or ecstasy;[92]

(6) Child prostitution;[93]

(7) Child tra fficking; [94]

(8)Forcing a street child or any child to beg or to use begging as

a means of living;[95]

(9)Forcing a street child or any child to be a conduit in drug

tra ffi cking or pushing; [96]

(10) Forcing a street child or any child to commit any illegal activities;
[97] and

(11) Murder, homicide, other intentional mutilation, and

serious physical injuries of a child under 12 years old.[98]

If we are to take judicial notice of anything, then it should be that there are those
accused of murder, tra ffi cking, sale of dangerous drugs, incestuous rape, rape of
minors, multiple counts of rape, or even serious illegal detention who languish in
overcrowded detention facilities all over our country. We know this because the
members of this court encounter them through cases appealed on a daily basis.
Many of them suffer from diseases that they may have contracted because of the
conditions of their jails. But they and their families cannot afford hospitals better
than what government can provide them. After all, they remain in jail because
they may not have the resources to launch a full-scale legal offensive marked
with the creativity of well-networked defense counsel. After all, they may have
committed acts driven by the twin evils of greed or lust on one hand and poverty
on the other hand.

For them, there are no special privileges. The application of the law to them is
often brute, banal, and canonical. Theirs is textbook equal treatment by courts.
motion to set bail where the crime charged carries the imposable penalty of
reclusion perpetua. With less powerful accused, we have had no
di ffi culty reading the plain meaning of Article III, Section 13 of the
Constitution. With those who are less fortunate in life, there are no exceptions.

Petitioner in this case is unbelievably more fortunate.

There is a right, just, and legal way to do things for the right, just, and legal
result. In my view, it is not right, just, and legal to grant bail, even for
P1,000,000.00, without clearly articulating why the Sandiganbayan’s actions were
arbitrary, capricious, and whimsical.

In truth, the Sandiganbayan acted in accordance with law and with su ffi cient
compassion. It did not gravely abuse its discretion. Thus, this Petition should be
dismissed.

XI

Those that read a decision which does not fully respond to the legal issues
outlined in this dissent may be tempted to conclude that the decision is the result
of obvious political accommodation rather than a judicious consideration of the
facts and the law. This case may benefit one powerful public o ffi cial at the cost of
weakening our legal institutions. If it is pro hac vice, then it amounts to
selective justice. If it is meant to apply in a blanket manner for all other
detainees, then it will weaken the administration of justice because the judicial
standards are not clear.

Without further clarity, our signal to the various divisions of the Sandiganbayan
hearing these complex and politically laden plunder cases can be misinterpreted.
Rather than apply the Rule of Law without fear or favor, the sitting justices will
become more sensitive to the demands of those who have political influence.
After all, in their minds, even if they do what is expected of them, this court may
still declare that the Sandiganbayan gravely abused its discretion.

The granting of bail is a judicial function circumscribed within the bounds of the
Constitution. Our duty is to ensure the realization of the Rule of Law even in
di ffi cult cases. This case does not really present any kind of legal complexity if
we blind ourselves as to who is involved. It is complex only because it is political.

The grant of provisional liberty to petitioner without any determination of

whether the evidence of guilt is strong violates the clear and unambiguous text
of the Constitution. It may be that, as citizens, we have our own opinions on or
predilections for how the balance of fundamental rights, liberties, and
obligations should be. It may be that, as citizens, such opinions are founded on
our wealth of knowledge and experience.

But, as members of this court, our duty is to enforce the exact textual
formulation of the fundamental document written and ratified by the sovereign.
This fealty to the text of the Constitution will provide us with a stable anchor
despite the potential political controversies that swirl over the legal questions
that we need to decide. It is also this fealty to the text of the Constitution that
gives this court the legitimacy as the final bastion and the ultimate sentinel of the
Rule of Law.

As the apex of the judiciary, the very sentinels of the Rule of Law, the court from
whom all other courts—like the Sandiganbayan—should find inspiration and
courage, we should apply the law squarely and without fear or favor. We should
have collectively carried the burden of doing justice properly and denied this
Petition.

Indeed, mercy and compassion temper justice. However, mercy and compassion
should never replace justice. There is injustice when we, as the court of last
resort, conveniently rid ourselves of the burden of enforcing the Rule of Law by
neglecting to do the kind of rigorous, deliberate, and conscious analysis of the
issues raised by the parties. There is injustice when we justify the result we want
with ambiguous and unclear standards.

Compassion as an excuse for injustice not only fails us as justices of this court. It
also fails us in our own humanity.

ACCORDINGLY, I vote to DISMISS the Petition. The Motion to Fix Bail should
be treated by the Sandiganbayan as a petition for bail under Rule 114, Section 5
of the Rules of Court.

1 Petition for Certiorari, Annex I.

2An Act Defining and Penalizing the Crime of Plunder, as amended by Rep. Act
No. 7659 (1993).

3 Ponencia, p. 2.

4 Id.

5 Id.

6 Petition for Certiorari, Annex I, pp. 4–5.

7 Id. at 5.

8 Id. at 6–7.

9 Petition for Certiorari, Annex J.

10 Petition for Certiorari, Annex K.

11 Petition for Certiorari, Annex H.

12 Id. at 2.

13 Id.

14 Id.

15 Id. at 3.

16 Petition for Certiorari, Annex O, p. 5.

17 Petition for Certiorari, Annex A.

18 Id. at 6 and 10.

19 Id. at 6.

20 Petition for Certiorari, Annex L.

21 Id. at 3–5.
[22] Petition for Certiorari, Annex B, p. 14.

[23] See Fiscal Gimenez v. Judge Nazareno, 243 Phil. 274, 278 (1988)
Gancayco, En Banc].
[Per J.

24 See REV. RULES OF CRIM. PROC., Rule 114, sec. 3.

25 75 Phil. 634 (1945) [Per J. Hilado, En Banc].

26 Id. at 644.

27 Id.

28Herras Teehankee v. Director of Prisons, 76 Phil. 756, 774 (1946)

[Per J. Hilado, En Banc].

29 77 Phil. 55 (1946) [Per C.J. Moran, En Banc].

30 Id. at 58.

31 112 Phil. 781, 782–783 (1961) [Per J. Natividad, En Banc].

32 149 Phil. 241, 247 (1971) [Per J. Makalintal, En Banc].

33 336 Phil. 214 (1997) [Per J. Romero, Second Division].

34Id. at 221–227, citing People v. Mayor Sola, et al., 191 Phil. 21

(1981) [Per C.J. Fernando, En Banc], People v. Hon. San Diego, etc., et al.,
135 Phil. 514 (1968) [Per
J. Capistrano, En Banc], People v. Judge Dacudao, 252 Phil. 507 (1989)
[Per J.
Gutierrez, Jr., Third Division], People v. Calo, Jr., 264 Phil. 1007 (1990) [Per
J. Bidin, En Banc], Libarios v. Dabalos, A.M. No. RTJ-89-286, July 11, 1991, 199
SCRA 48 [Per J. Padilla, En Banc], People v. Nano, G.R. No. 94639, January 13,
1992, 205 SCRA 155 [Per J. Bidin, Third Division], Pico v. Combong, Jr., A.M.
No. RTJ-91-764, November 6, 1992, 215 SCRA 421 [Per Curiam, En Banc], De
Guia v. Maglalang,
A.M. No. RTJ-89-306, March 1, 1993, 219 SCRA 153 [Per Curiam, En Banc],
Borinaga v. Tamin, A.M. No. RTJ-93-936, September 10, 1993, 226 SCRA 206,
216 [Per J. Regalado, En Banc], Aurillo, Jr. v. Francisco, A.M. No. RTJ-93-1097,
August 12, 1994, 235 SCRA 283 [Per J. Padilla, En Banc], Estoya v. Abraham-
Singson, A.M. No. RTJ-91-758, September 26, 1994, 237 SCRA 1 [Per Curiam, En
Banc], Aguirre v. Belmonte, A.M. No. RTJ-93-1052, October 27, 1994, 237 SCRA
778 [Per J. Regalado, En Banc], Lardizabal v. Reyes, A.M No. MTJ-94-897,
December 5, 1994, 238 SCRA 640 [Per J. Padilla, En Banc], Guillermo v. Judge
Reyes, Jr., etc., 310 Phil. 176 (1995) [Per J. Regalado, Second Division], Santos
v. Judge Ofilada, 315 Phil. 11 (1995) [Per
J. Regalado, En Banc], Sule v. Biteng, 313 Phil. 398 (1995) [Per J. Davide, Jr.,
En Banc], and Buzon, Jr. v. Judge Velasco, 323 Phil. 724 (1996) [Per J.
Panganiban, En Banc].

35 344 Phil. 415 (1997) [Per J. Romero, En Banc].

36 Id. at 430–431.

37Id., citing Basco v. Judge Rapatalo, 336 Phil. 214, 237 (1997) [Per J.
Romero, Second Division].
40 Id. at 49–50.

41 Id. at 56–57.

42 Id. at 56.

43 389 Phil. 372 (2000) [Per J. Ynares-Santiago, First Division].

44 Id. at 375 and 388.

45 486 Phil. 605 (2004) [Per J. Sandoval-Gutierrez, Third Division].

46 Id. at 611 and 618.

47 674 Phil. 324 (2011) [Per J. Bersamin, First Division].

48Id. at 340–341, citing Directo v. Judge Bautista, 400 Phil. 1, 5

(2000) [Per J. Melo, Third Division] and Marzan-Gelacio v. Judge Flores,
389 Phil. 372, 381 (2000) [Per J. Ynares-Santiago, First Division].

49 Petition for Certiorari, Annex A, p. 2.

[50] People v. Sandiganbayan, 490 Phil. 105, 116 (2005) [Per J. Chico-
Second Division], citing People v. Court of Appeals, G.R. No. 144332, June
Nazario,
10, 2004, 431 SCRA 610, 616 [Per J. Callejo, Sr., Second Division], Rodson
Philippines, Inc. v. Court of Appeals, G.R. No. 141857, June 9, 2004, 431
SCRA 469, 480 [Per J. Callejo, Sr., Second Division], Matugas v. Commission
on Elections, 465 Phil. 299, 313 (2004) [Per J. Tinga, En Banc], Tomas
Claudio Memorial College, Inc. v. Court of Appeals, 467 Phil. 541, 553
(2004) [Per J. Callejo, Sr., Second Division], and Condo Suite Club Travel,
Inc. v. National Labor Relations Commission, 380 Phil. 660, 667 (2000)
[Per J. Quisumbing, Second Division].

51 Petition for Certiorari, pp. 9–12.

52 Id. at 64.

53 219 Phil. 432 (1985) [Per J. Plana, First Division].

54 J. Leonen, Letter to Colleagues dated August 18, 2015.

55 Ponencia, p. 10.

56The enumeration of diseases on page 12 of the ponencia is based on

the certification of Dr. Gonzales. There was a hearing but for the purpose
of determining whether hospital arrest can continue. The hearing was not for
the purpose of determining whether bail should be granted on the basis of
his medical condition.

57 Rollo, p. 373.

58 A.M. No. RTJ-92-876, September 19, 1994, 236 SCRA 505 [Per Curiam, En
Banc].

59Id. at 521–522, citing 20 Am. Jur., Evidence, Sec. 17, 48, King v. Gallun,
et al., 109 U.S. 99, 27 L. ed. 870, and 31 C.J.S., Evidence, Secs. 6–7, 823.
60 Ponencia, p. 14.

61Re: Guidelines on the Jail Visitation and Inspection. New

guidelines are stated in OCA Circular No. 107-2013.

62 A.M. No. 07-3-02-SC (2008), sec. 1(3).

63 De la Rama v. People’s Court, 77 Phil. 461, 465 (1946) [Per J. Feria, En

Banc].

64 Petition for Certiorari, Annex O.

65 Petition for Certiorari, Annex P.

66 Petition for Certiorari, Annex O, p. 5.

67 Petition for Certiorari, Annex P, pp. 2–3.

68 536 Phil. 413 (2006) [Per J. Austria-Martinez, First Division].

69Id. at 428, citing Release of Accused by Judge Muro in Non-

Bailable Offense, 419 Phil. 567, 581 (2001) [Per Curiam, En Banc], People v.
Judge Gako, Jr., 401 Phil. 514, 541 (2000) [Per J. Gonzaga-Reyes, Third Division],
Ernesto Pineda, THE REVISED RULES ON CRIMINAL PROCEDURE 193 (2003)
which in turn cited De la Rama v. People’s Court, 77 Phil. 461, 465
(1946) [Per J. Feria, En Banc], Archer’s case, 6
Gratt 705, Ex parte Smith, 2 Okla. Crim. Rep. 24, 99 Pfc. 893, and Ma x Rothman,
Burton Dunlop, and Pamela Entzel, ELDERS, CRIME AND THE CRIMINAL JUSTICE
SYSTEM 233–234 (2000).

70 Ponencia, p. 15.

71 See REV. RULES OF CRIM. PROC., Rule 114, sec. 9, which states:

SEC. 9. Amount of bail; guidelines. – The judge who issued the warrant or
granted the application shall fix a reasonable amount of bail considering
primarily, but not limited to, the following factors:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required.

 72In Republic v. Sandiganbayan, 454 Phil. 504, 545 (2003) [Per J.
Carpio, En Banc], this court stated: “Although the signatories to the
Declaration did not intend it as a legally binding document, being only a
declaration, the Court has interpreted the Declaration as part of the
generally accepted principles of international law and binding on the State.”

73Universal Declaration of Human Rights, art. 1 states that “[a]ll human

beings are born free and equal in dignity and rights.”

74 550 Phil. 63, 72 (2007) [Per J. Sandoval-Gutierrez, En Banc].

75 Ponencia, pp. 10–11.

76 See Government of Hong Kong Special Administrative Region v.

Hon. Olalia, Jr.,
550 Phil. 63, 77 (2007) [Per J. Sandoval-Gutierrez, En Banc]. The dispositive
portion reads: “WHEREFORE, we DISMISS the petition. This case is REMANDED
to the trial court to determine whether private respondent is entitled to bail on
the basis of ‘clear and convincing evidence.’ If not, the trial court should order
the cancellation of his bail bond and his immediate detention; and thereafter,
conduct the extradition proceedings with dispatch.”

77 REV. PEN. CODE, art. 246.

78REV. PEN. CODE, art. 248, as amended by Rep. Act No. 7659 (1993), sec. 6,
and Rep. Act No. 9346 (2006), sec. 1.

79REV. PEN. CODE, art. 267, as amended by Rep. Act No. 7659 (1993), sec. 8,
and Rep. Act No. 9346 (2006), sec. 1.

80 REV. PEN. CODE, art. 294(1), as amended by Rep. Act No. 7659 (1993), sec. 9.

81 REV. PEN. CODE, art. 294(1), as amended by Rep. Act No. 7659 (1993), sec. 9.

82 REV. PEN. CODE, art. 294(2), as amended by Rep. Act No. 7659 (1993), sec. 9.

83 REV. PEN. CODE, art. 297.

84 REV. PEN. CODE, art. 266-A, as amended by Rep. Act No. 8353 (1997), sec. 2.

85REV. PEN. CODE, art. 266-A(1)(d), as amended by Rep. Act No. 8353 (1997),
sec. 2.

86 REV. PEN. CODE, art. 266-A(2), as amended by Rep. Act No. 8353 (1997), sec. 2.

87 REV. PEN. CODE, art. 266-B(1), as amended by Rep. Act No. 8353 (1997), sec. 2.

88 Rep. Act No. 6539 (1972), sec. 14, as amended by Rep. Act No. 7659 (1993), sec.
20 and Rep. Act No. 9346 (2006), sec. 1.

89 Rep. Act No. 9165 (2002), sec. 5.

90 Rep. Act No. 9165 (2002), sec. 11, 1st par. (3)(4)(5)(7)(8).

91 Rep. Act No. 9165 (2002), sec. 11, 2 nd par. (1).

92 Rep. Act No. 9165 (2002), sec. 11, 2 nd par. (2).

93 Rep. Act No. 7610 (1992), sec. 5.

94 Rep. Act No. 7610 (1992), sec. 7.

95 Rep. Act No. 7610 (1992), sec. 10(e)(1)

96 Rep. Act No. 7610 (1992), sec. 10(e)(2).

97 Rep. Act No. 7610 (1992), sec. 10(e)(3).

98 Rep. Act No. 7610 (1992), sec. 10.

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