Senator Juan Ponce Enrile has been released on bail even though he is charged with a non-bailable criminal offense, and we students of the law cannot help but be flummoxed.
Discombobulated. Befuddled. Throw in here any other word meaning confused or surprised or puzzled, and it could perhaps capture the feeling. How did the Senator do it? What could he have possibly argued so as to let the high and mighty Supreme Court allow him out on bail?
Apparently, there were a few reasons that persuaded them to let him skip merrily out of his cell. First, the Senator's "social and political standing". Because of this nebulous concept that pretty much means the lofty heights where he came from, the top creme de la creme levels of Manila society, the court concluded that he wasn't a flight risk.
Second, he immediately surrendered when he was charged with the crime. Again, that meant he wasn't a flight risk. Third, was his "personal disposition from the onset of his indictment for plunder (which) demonstrated his respect for the legal processes of this country." In layman's terms, that meant the Senator wasn't being bad ass. He was being very respectful to the court, and that meant brownie points.
Fourth, was the fragile state of his health, and his advanced age. All these factors combined led the majority of the court to conclude that he should be allowed to post bail and trade his stripes for suits. Not just that, the high court even castigated the Sandiganbayan court and characterized its actions as constitutive of "grave abuse of discretion" for disregarding these factors in denying the Senator his application for bail.
The dissenting opinion by the minority was impassioned and brought out what was troubling in the decision of the majority. The dissent pointed out that what had just happened, right there in its hallowed halls, was the application of selective justice. Because of what the majority had just done, justice would henceforth be administered based not "on clear legal provisions, but one that is unpredictable, partial, and solely grounded on the presence or absence of human compassion on that day that the justices of this court deliberate and vote."
Imagine if a criminal accused that was rich and well connected were to apply for bail citing just this ground of "social standing." What would happen to poor and disadvantaged defendants? This is a ground they would never be able to invoke, just because of the accident of their birth. And I, for one, would never be able to use "political standing" if I were ever accused of a crime. I have no such standing, I am a political non-entity. (That's so unfair! Does that mean I have to run for office?)
Imagine all the wealthy politicians lining up to invoke this ground of "political and social standing" for non-bailable offenses. (Former President Gloria Macapagal Arroyo! Senator Jinggoy Estrada! Senator Ramon Revilla!)
Worse, is the ground of "humanitarian reasons." This is so fluid a concept and so susceptible to interpretation that lawyers will have a field day proposing new theories before the court. Maybe it means an accused sick with terminal cancer. Then it will mean an incurable disease, but the accused has two years of useful life left. Next, it will be the loss of a limb that makes it difficult to navigate a jailcell. And so on and so forth, until the judges wouldn't know how to draw the dividing line between what humanitarian ground suffices for bail, and what doesn't. Indeed, let's look at the Senator: he cited frail health and old age, but he's going back to work at the Senate the very next instant! Use that as a model for other applicants, and what will we get?
The weird thing here is, there isn't anything in the laws of our country that allows using these grounds to grant bail. In fact, it's very specific that for this particular offense which he is charged, plunder of government funds, bail isn't allowed. So what gives?
This amounts to the judiciary making its own exceptions to what the law says. Or even, making its own laws, the much bandied about danger of "judicial legislation." As Justice Marvic Leonen says in his dissent, this decision amounted to the grant of a privilege ad hoc - and only to one person: the Senator himself.
Well, that worry of Justice Leonen is not going to last long. It won't be just one person that will be enjoying this privilege, as everyone else indicted for a non-bailable offense will come flocking to the courts (even lower courts!) alleging any or all of the grounds cited here by the Supreme Court majority. Old age, ill health, social status, political connections, all the sob stories they can think of to elicit compassion.
Somehow, unlike other stories where human compassion plays a central theme, this scenario doesn't make me feel warm and gooey.