You can introduce a terminological distinction between a ‘detainee’
and a ‘prisoner’, but the effects belie the verbal sleight-of-hand: A
person is deprived of his liberty in so many different ways. But while a
prisoner suffers incarceration as penalty for a crime of which he has
been duly, we hope, convicted, a detainee is detained (= incarcerated)
on suspicion (technically: on the basis of a probability) that he
committed an offense. Each acquittal merely proves how mistaken
suspicions can be, no matter that they are vested in the legalesse of
‘probable cause’
It is supposed to be common knowledge that most offenses are
‘bailable’, others are ‘non-bailable’. It was something I took too as
‘knowledge’, until one day, my father, Justice Hilarion Aquino, told my
brother, an RTC judge and me, that he did not think that there were any
non-bailable offenses. That sent me back looking up the text of the
Constitution once more, a document I thought I was sufficiently familiar
with. Section 13 reads: “All persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is
strong, 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.” Shall be bailable—in the law, ‘shall’ mandates. This has led
to the traditional formulation of the rule: In all cases except those
punishable by reclusion perpetua (or, under special penal laws, life
imprisonment) bail is a matter of right. When the offense of which a
person stands accused is punishable by reclusion perpetua or life
imprisonment, and evidence of guilt is strong, it does not follow that
bail must be denied, because that is not what the Constitution provides.
It only subjects the grant of bail to judicial discretion. Bail is
available then in all cases, if the judge would exercise discretion in
favor of its concession, and discretion precisely means that it is the
judge’s call. The judge must judge!
But so precious is the right to bail and the liberty that it
safeguards that not even the suspension of the privilege of the writ of
habeas corpus can impair it. John Rawls concluded, in theorizing on
justice, that reasonable people would like society to be organized
according to the principle that each person is entitled to the maximal
range of liberties compatible with a similar range for all others. While
liberty—in the sense of freedom from restraint and detention—was not
what he particularly thought of in this first of the principles of
justice, it certainly is among the bases of self-respect that the
principle covers.
In fact, if, as I think should be the case, the guarantees in the
Bill of Rights are read in lexical order, then the very first section
enshrines the fundamental right: “No person shall be deprived of life,
liberty or property without due process of law, nor shall any person be
denied the equal protection of the laws.” At the time a person is
deprived of liberty because he is denied bail, he has not yet been
convicted. All that ‘justifies’ the deprivation of liberty is suspicion,
known as ‘probable cause’. And the Supreme Court has qualified this
even further by teaching: “The term does not mean ‘actual and positive
cause’ nor does it import absolute certainty. It is merely based on
opinion and reasonable belief...It is enough that it is believed that
the act or omission complained of constitutes the offense charged.”
Fenequito v. Vergara (2012) Scholastic philosophers used to define
‘opinion’ as ‘holding a judgment with the radical fear that it is
false’. Is it reasonable to deny a person his liberty and curtail his
freedoms because of ‘opinion’, ‘belief’, ‘suspicion’? That would be
taking liberty—enshrined as the very first right protected by the
Constitution—with undue levity!
There is more to the argument for the grant of bail. When a person
who has suffered detention is subsequently acquitted, how does the State
make up for the injustice of his detention? Will it do to say that he
deserved to be detained because there was ‘belief’, ‘opinion’ or
suspicion that he was guilty? We are not talking here about such
vagaries as the stigma of imprisonment. What we deal with rather is the
curtailment of a basic human right, not least among these, the right to
the comfort of one’s home and the company of one’s family.
I was taken aback by the language of the Sandiganbayan when it turned
down the former President’s petition for bail. It said in what to me
was language shot through with utter insensitivity: The depression and
loneliness she suffers from are the conditions suffered by all who are
detained. And that I supposed to justify the denial of bail—because it
is commonly suffered by all detained? If anything at all, the suffering
underscores the injustice of being deprived of one’s liberty even before
one’s guilt has been established!
Am I for the universal grant of bail? Most assuredly, I am, and while
the Constitution cannot now be amended, judges can always exercise
discretion in favor of liberty. That is not a bad thing at all. In fact
the qualifier —‘when evidence of guilt is strong’ —makes the case for
the exercise of discretion in favor of bail stronger for one never knows
that the evidence of guilt is strong until after full trial on the
merits. Even if it appears that the prosecution has a strong case—and
the prosecution will always make its case appear strong—one must allow
for the possibility of a solid defense that causes the the prosecution
to totter. But at the time bail is denied, one has not yet heard the
defense!
Mine is not an argument from pity nor from some vague sense of
humaneness or humanity but from the values of our constitutional order
and from the demands of fairness, the first virtue, Rawls teaches, of
the social order!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com
source: Manila Standard Column By
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