Bail vis-à-vis Presumption of Innocence
WITH DUE RESPECT: JPE’s novel bid for bail
By: Artemio V. Panganiban
November 16th, 2014
Philippine Daily Inquirer
Novel and unusual is the petition for certiorari filed by detained Sen. Juan Ponce Enrile (JPE) in the Supreme Court to obtain his freedom from detention while awaiting his trial in connection with the charge of plunder and graft filed against him by the Office of the Ombudsman (OOO) for his alleged complicity in the pork barrel scam.
Long-standing procedure. After conducting a preliminary investigation (PI), the OOO filed last June 5 an information (or charge sheet) indicting JPE (and several others) with plunder and graft. Having “independently” determined the existence of “probable cause” from the information and its attached evidence, the Sandiganbayan (SBN) ordered JPE’s arrest and detention without bail.
Unquestionably, the SBN followed the long-standing and accepted procedure observed by all Philippine courts of ordering the arrest and detention without bail of those charged with capital offenses (like plunder, rape, murder and syndicated estafa).
Pursuant to this procedure, “bail hearings” are then immediately conducted, in which the prosecution is required to present evidence showing that the evidence of guilt is “strong.” If the prosecution’s evidence is judged to be “strong,” then the accused shall remain in detention without bail for the remainder of the trial (and during the appeal, in case of a “guilty” verdict).
On the other hand, if the court finds the evidence to be “not strong,” then the accused is released on bail while trial “on the merits” continues to determine guilt (or innocence), and the appropriate penalty, if the accused is eventually found guilty.
This procedure is used in the prosecution of all capital offenses, like those of former presidents Joseph Estrada and Gloria Macapagal-Arroyo, Senators Jinggoy Estrada and Bong Revilla, as well as the Ampatuan family members (in the Maguindanao massacre), who were all similarly detained without bail after their arrest (or surrender).
(Parenthetically, when the crime is not capital in nature, the accused is ordered arrested but released upon posting of bail in the amount stated in the arrest order.)
General rule. Through his counsels Estelito P. Mendoza and Eleazar B. Reyes, JPE however claims that this long-standing and long-revered procedure is unconstitutional and wrong.
JPE reasons that under the Constitution, “[i]n all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,” or until found guilty beyond reasonable doubt. Also, the Charter guarantees that “[a]ll persons, except those charged with [capital] offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable…”
Citing jurisprudence, he adds that bail is denied in capital offenses because an accused who faces a probable life sentence “has a particularly strong temptation to flee.”
Analyzing these constitutional provisions and the jurisprudential reason for the denial for bail in capital offenses, JPE explains that every person accused of any crime is constitutionally entitled to bail as a general rule.
Exception to rule. As an exception, however, bail is denied when two conditions are present: (1) the evidence of guilt is strong, and (2) the penalty prescribed for the offense is punishable by reclusion perpetua (or life imprisonment).
The first condition, he avers, can be determined only after the prosecution has finished presenting its evidence during the bail hearings and after the court has adjudged such evidence to be “strong.” Unconstitutional, illogical and wrong, therefore, he argues, is the present procedure of detaining the accused without bail prior to the court’s ruling that the evidence is indeed “strong.”
This long-standing practice, he adds, puts “the cart before the horse” and violates the constitutional presumption of innocence.
If the Supreme Court agrees with and frees him on bail, then for the same reason, all those currently accused of capital offenses, like former president Arroyo and the Ampatuan family as well as Senators Revilla and Estrada, should also be freed and granted bail while awaiting the ruling of the trial courts on whether the evidence of guilt in their respective cases is “strong.”
On the second condition, JPE asserts that in his particular case, the penalty to be imposed would not be reclusion perpetua even if he is found guilty, because he should be credited with the mitigating circumstances of (1) old age for being over 70 years (in fact, he is over 90) and (2) voluntary surrender. These two circumstances are uncontested. (Without waiting to be actually arrested, JPE surrendered to the authorities.)
Finally, JPE avers that the jurisprudential reason for detaining the accused in capital offenses is the probability of flight. In his case, flight is most improbable because of (1) his very old age and frail health, (2) his track record (in previous cases filed against him, he did not flee), and (3) his “official and social standing” (as a senator, Cabinet member and other high government positions he held from 1966 up to the present), which allegedly “shows his high respect for the law.”
Since JPE’s petition and those of Senators Estrada and Revilla are pending in the Supreme Court and therefore sub judice, I will refrain from making an extended legal opinion. However, as a concerned citizen, I will continue to monitor and report on high-profile cases especially as they relate to President Aquino’s daang matuwid program.
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Culpa is Imputable to Defect of Intellect while Dolus is to Defect of Heart
Enrile: What does ‘culpa’ mean?
By Michael Lim Ubac
Philippine Daily Inquirer
12:48 am | Tuesday, May 29th, 2012
His questions seem to augur ill for Chief Justice Renato Corona when the Senate impeachment court hands down its verdict Tuesday.
Senate President Juan Ponce Enrile had the last word in the closing arguments Monday, but he left the question hanging on whether Chief Justice Renato Corona willfully and intentionally fudged his statement of assets, liabilities and net worth (SALN) and should be convicted.
Before adjourning Monday, Enrile bombarded the defense lawyers with a series of questions over their contention the alleged nondeclaration and misdeclaration of certain assets and bank deposits in the Chief Justice’s SALNs did not amount to an impeachable offense.
“What injury or prejudice may arise if a depositor, who is a public officer or employee, of a foreign currency deposit would include that deposit or the amount represented by that deposit in his statement of assets, liabilities and net worth?” Enrile asked.
The lead defense counsel, Serafin Cuevas, replied that he was “not very sure … insofar as damage is concerned.”
Upon a clarification by Enrile, Cuevas said: “The probability of kidnapping, extortion and so on may come into the picture because, especially with the present trend of criminality in the country today, there is no assurance that one is immune from any of these offenses. That may be one.”
Enrile then asked whether this scenario had been contemplated by the framers of Republic Act No. 6426 (Foreign Currency Deposit Act of the Philippines), as well as the presidential decrees preceding it.
“The declaration of policy is entirely different from the disastrous consequences or unwarranted circumstances that may occur thereafter,” Cuevas insisted.
Enrile then asked, “Will a public officer or a public employee who maintains a foreign currency deposit incur the punitive penalty of RA 6426 if he would reflect that deposit in his SALN?”
Cuevas said, “I don’t see that probability, but it could amount to a (forced) consent, as distinguished from a voluntary provision on the part of the depositor.”
No Secrecy Law
Enrile explained: “We are forgetting that the law allows the exposure of a foreign currency deposit by expressed provision of RA 6426 if the depositor himself would give (the consent). There’s no monetary secrecy law in this country that prohibits or inhibits or proscribes the depositor from revealing his own deposits. What is prohibited is for a third party to reveal it, and that’s why they are penalized, but the depositor is not.”
Enrile also pointed Cuevas to Section 17, Article 11 of the Constitution, which says: “A public officer or employee shall upon assumption of office, and as often thereafter as may be provided by law, submit a declaration under oath of his assets, liabilities and net worth.”
“Do you consider that sentence as mandatory that requires to be obeyed by a public officer or public employee?” asked Enrile. “Do you consider that a command of the people, or is it something that can be disregarded?”
Cuevas said the Constitution could not be disregarded by public officials.
But, he added: “When there are gripes that arise from a different law, I don’t see any reason as to why it cannot be availed of, in this particular instant, the depositor. Why the law has granted that is beyond my comprehension. It’s a legislative function … I’m not privileged neither can define or fathom the reason behind it.”
Cuevas, a former Supreme Court associate justice, was citing the confidentiality invoked by the Chief Justice in refusing to declare in his SALNs the $2.4 million in dollar deposits.
Sovereign Command
Enrile then asked if disobedience of “a sovereign command” in the Constitution would constitute a culpable violation of the Constitution, which is an impeachable offense.
“I would not be in a position to make a statement to that unless the actual facts surrounding the circumstances are known to me,” said Cuevas, who said that this “would be a matter of conjecture or surmise on my part.”
Enrile then asked Cuevas about the difference in the Roman Law doctrine of “culpa” and “dolos” from where the constitutional intent of “culpable” was derived.
According to Cuevas, “dolos is intentional,” while “culpa is negligence.” Enrile disagreed, saying that “culpa is deserving of blame.”
When Cuevas claimed that “intention” was needed to ascertain whether disobedience to the provision of Section 17 of the Constitution deserved blame, Enrile pointed out that the provision did not call for any intent.
“Where in that provision will you find intent?” Enrile asked.
Willful, Intentional
Representative Rodolfo Fariñas, speaking for the prosecution, said that according to the records of the 1987 Constitutional Commission, “culpable violation of Constitution is understood to mean willful and intentional violation of the Constitution and not violation committed unintentionally, or involuntarily, or in good faith, or through an honest mistake of judgment.”
“And it implies deliberate intent, perhaps even a degree of perversity for it is not easy to imagine that individuals in the category of these officials would go so far as to defy knowingly what the Constitution commands.”
Defense lawyer Eduardo de los Angeles earlier insisted that Corona’s failure to disclose his $2.4 million in bank accounts did not amount to an “impeachable breach of trust.”
He said that at best, this omission would only amount to “a fine not exceeding P5,000, or imprisonment not exceeding five years, or both.”
CD: Catholic Vicar Apostolic v. CA
CATHOLIC VICAR APOSTOLIC v. CA
G.R. No. L-80294-95 September 21, 1988
Gancayco, J.
Doctrine:
The bailees’ failure to return the subject matter of commodatum to the bailor does not mean adverse possession on the part of the borrower. The bailee held in trust the property subject matter of commodatum.
Facts:
Catholic Vicar Apostolic of the Mountain Province (VICAR for brevity) filed an application for registration of title over Lots 1, 2, 3, and 4, said Lots being the sites of the Catholic Church building, convents, high school building, school gymnasium, school dormitories, social hall, stonewalls, etc. The Heirs of Juan Valdez and the Heirs of Egmidio Octaviano filed their Answer/Opposition on Lots Nos. 2 and 3, respectively, asserting ownership and title thereto since their predecessors’ house was borrowed by petitioner Vicar after the church and the convent were destroyed.. After trial on the merits, the land registration court promulgated its Decision confirming the registrable title of VICAR to Lots 1, 2, 3, and 4.
The Heirs of Juan Valdez appealed the decision of the land registration court to the then Court of Appeals, The Court of Appeals reversed the decision. Thereupon, the VICAR filed with the Supreme Court a petition for review on certiorari of the decision of the Court of Appeals dismissing his application for registration of Lots 2 and 3.
Issue:
Whether or not the failure to return the subject matter of commodatum constitutes an adverse possession on the part of the owner
Held:
No. The bailees’ failure to return the subject matter of commodatum to the bailor did not mean adverse possession on the part of the borrower. The bailee held in trust the property subject matter of commodatum.
Petitioner repudiated the trust by declaring the properties in its name for taxation purposes.
CD: Commissioner of Internal Revenue v. Mc.George Food Industries, Inc.
CIR v. MC.GEORGE FOOD INDUSTRIES, INC.
G.R. No. 174157 October 20, 2010
Carpio, J.
Doctrine:
Pursuant to the general rule on the prospective application of laws, the 1997 NIRC operates to govern the conduct of corporate taxpayers the moment it took effect on 1 January 1998.
Facts:
On 15 April 1998, respondent filed with the BIR its final adjustment income tax return for the calendar year ending 31 December 1997. The return indicated a net overpayment of P4,736,188. Exercising its option to either seek a refund of this amount or carry it over to the succeeding year as tax credit, respondent chose the latter, indicating in its 1997 final return that it wished the amount “to be applied as credit to next year.”
On 15 April 1999, respondent filed its final adjustment return for the calendar year ending 31 December 1998, indicating a tax liability of P5,799,056. Instead of applying to this amount its unused tax credit carried over from 1997 (P4,736,188), respondent merely deducted from its tax liability the taxes withheld at source for 1998 and paid the balance of P5,581,877.
On 14 April 2000, respondent simultaneously filed with the BIR and the Court of Tax Appeals (CTA) a claim for refund of its overpayment in 1997 of P4,736,188. The CTA held that refund was proper because respondent complied with the requirements of timely filing of the claim and its substantiation.
Petitioner sought reconsideration, contending that respondent is precluded from seeking a refund for its overpayment in 1997 after respondent opted to carry-over and apply it to its future tax liability, following Section 76 of the 1997 NIRC. Petitioner claimed that Section 76 applies to respondent because by the time respondent filed its final adjustment return for 1997 on 15 April 1998, the 1997 NIRC was already in force, having taken effect on 1 January 1998.
The CTA denied reconsideration, holding that the 1997 NIRC only covers transactions done after 1 January 1998.
The Court of Appeals affirmed the CTA, ruling that the right to claim for refund or tax credit must be governed by the law in effect at the time the excess credits were earned. Thus, the pertinent law applicable to the case at bar is Section 69 of the old Tax Code.
Issue:
Whether or not the 1997 NIRC is the governing law
Held:
Yes. Section 76 of the 1997 NIRC controls.
Section 76 should be applied following the general rule on the prospective application of laws such that they operate to govern the conduct of corporate taxpayers the moment the 1997 NIRC took effect on 1 January 1998.
The lower courts grounded their contrary conclusion on the fact that respondent’s overpayment in 1997 was based on transactions occurring before 1 January 1998. This analysis suffers from the twin defects of missing the gist of the present controversy and misconceiving the nature and purpose of Section 76. None of respondent’s corporate transactions in 1997 is disputed here. Nor can it be argued that Section 76 determines the taxability of corporate transactions. To sustain the rulings below is to subscribe to the untenable proposition that, had Congress in the 1997 NIRC moved the deadline for the filing of final adjustment returns from 15 April to 15 March of each year, taxpayers filing returns after 15 March 1998 can excuse their tardiness by invoking the 1977 NIRC because the transactions subject of the returns took place before 1 January 1998. A keener appreciation of the nature and purpose of the varied provisions of the 1997 NIRC cautions against sanctioning this reasoning.
Plea Bargaining 101
Plea Bargain
MY FOUR CENTAVOS By Dean Andy Bautista
The Philippine Star January 22, 2011
Given the continuing interest on the General Garcia plunder case, it may be worthwhile to discuss the concept of a plea bargain. This is essentially an agreement in a criminal case where the prosecution and the defense agree that the accused will plead guilty to a lesser charge than what is contained in the information. The equivalent of a plea bargain in a civil case is a compromise settlement.
Parties enter into a plea bargain for several reasons. Aside from escaping the rigors of a full blown trial, the accused may wish to avoid the risk of conviction to the original, more serious charge. As far as the prosecution is concerned, a plea bargain should mean reduced costs and the ability to focus more on other cases.
In the United States, a plea bargain can be one of several types. Charge bargaining occurs when an accused pleads guilty to a less serious crime (as in the Garcia case). In count bargaining, the accused pleads guilty to a subset of multiple original charges. In sentence bargaining, an accused knows in advance what sentence will be given. In fact bargaining, the prosecution and defense agree to a certain stipulation of facts which will affect what the penalty will be in accordance with the sentencing guidelines. Interestingly, in the US, plea bargaining has become the rule rather than the exception in criminal cases.
In the Philippines, the pertinent rule on plea bargaining is found in Rule 116, Section 2 of the Rules of Court which provides:
“Plea of guilty to a lesser offense — At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.”
In the Garcia case, the original charge was that of plunder which is a capital crime punished under Republic Act 7080. The lesser offense that he subsequently pleaded guilty to was direct bribery which is punished under Article 210 of the Revised Penal Code and facilitating money laundering covered under Republic Act 9160. Query as to whether the crime of direct bribery and money laundering are “necessarily included” in the offense of plunder? Note that both crimes are punished by different laws.
Note as well the requirement of obtaining the consent of the offended party before the trial court will allow the downgrading of the original offense charged. In this instance, who is the offended party? Is it the Armed Forces of the Philippines since the money seems to have been taken from its coffers or the Republic since public money is involved. In any event, if we follow the news reports, it would seem that neither of their consents was secured.
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