2017 Year of the Fire Rooster
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Nothing higher than liberty

The Supreme Court has yet to release its full-length decision on Senator Juan Ponce Enrile’s petition for bail, although we now know, through the High Court’s Public Information Office, that the court has ruled in favor of the former senate president’s liberty.   And that is good not only for Senator Enrile but for the country.   This is not the first time I write on my issues with the present rule in this jurisdiction on the detention of persons prior to conviction.   The points bear repetition.

As the rules are presently construed, a person charged with a crime that makes bail unavailable as a matter of right is detained pending trial, if the court finds that evidence of guilt is strong.   There is, to my mind, no way to defend this derogation of human liberty.   It is merely probable cause that supports the filing of a criminal information in court.   And no matter the pompousness of the formulation, “probable cause” simply means: a crime might have been committed, and the respondent might be guilty.   Two “mights” to be sure—but quite a long way from certitude.   When the judge orders the arrest of the accused, once more, all he goes by is probable cause.   In many cases, this means hardly anything more than being convinced that the prosecutor made no atrocious lapses of judgment.

But when a person is detained prior to conviction, there is very little to distinguish the privation of liberty he suffers from that suffered by one already convicted.   Calling him a detainee to distinguish him from a convicted felon is little consolation to one who is denied the consortium of family, the comforts of home and the liberty of movement.   And nothing supports this curtailment of liberty other than that the belief that a crime might have been committed and that the hapless detainee might be the guilty party!

It would be reckless, I concede, to allow a terrorist caught in flagrante delicto planting bombs free to roam our streets and carry on with his murderous escapades.   But we should be clever enough to craft rules to cover such cases.   Excepting cases however where the accused is apprehended “in flagrante delicto” and the offense constitutes a threat to life and limb, I cannot see any legal and moral justification for depriving anyone of liberty on the basis of a catena of “mights”.

Liberty is so precious a commodity that our Constitution requires nothing less than “proof beyond reasonable doubt,” also known as “moral certitude” to deprive a person of his liberty through a judgment of conviction.   In traditional epistemology, “moral certitude” meant that there was no other conclusion to be drawn in the ordinary course of events than that the accused was guilty.   But one does not have this PRIOR to conviction, and YET we cause an indictee to suffer the loss of liberty before we are sure!   Is that not appalling, atrocious and unconscionable?   Not even the risk of flight can warrant this assault on human liberty.   The burden of surveillance and vigilance is on the State, and should not be transferred to the citizens especially when this takes the form of derogating from basic liberties!

It seems that Senator Enrile—himself a brilliant lawyer—and counsel crafted a powerful argument.   A person can be denied bail in those cases where bail is not available as a matter of right ONLY when evidence of of guilt is strong.   But this can be determined only after the prosecution has been heard.   And so the practice of detaining persons before hearing the prosecution actually modifies the rule—and denies bail, even before it is known that evidence of guilt is strong. I am not worried at all that other detainees may demand that the same doctrine, if in fact the Supreme Court did lay it down, should be applied to them.   Every person can lawfully make a claim to liberty.   In dubiis, libertas!   I am glad things turned out the way they did for Senator Enrile.   This can only serve the country well.


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