MS 30th Anniversary XXX

Still on the right to bail

Verba legis...the words of the law are the necessary starting point for all juridical argument.  And so we must closely heed the ‘verba’ of Article III of the Constitution:

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 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 by sufficient sureties”—that is what those charged with offenses punishable by ‘reclusion perpetua’ WHEN evidence of guilt is strong are excepted from. “Shall be bailable by sufficient sureties”—which, in effect, is the imposition on the State of the duty to grant bail.  By Hohfeld’s analysis, to say that A has a right to x means, among other things, that A can compel that B give, grant or concede x.  For a right to be real, he who claims it must be able to pinpoint another against whom it can be claimed.  In this case, the other is clearly the State.  And when the crime is punishable by ‘reclusion perpetua’ when evidence of guilt is strong, what then?  Then sets in the difficulty with the modal proposition.  “Shall” in law, unless qualified by provisos or conditions, is “must”.  “X shall give Y” is the equivalent of “It is necessary that X give Y”.  In the square of modal opposition, the contradictory of a necessary proposition is a contingent proposition: “X need not give Y”.  “The State need not grant bail.”  And that is worlds apart from the necessary-negative: “The State shall not grant bail.”  Surely, when personal liberty, the company of one’s loved ones and the comfort of home, no matter how humble, are at stake, a logical excursus of this sort is far from otiose!  If “need not be bailable” is taken as the opposite of “shall be bailable”, then when charged with a crime for which ‘reclusion perpetua’ is the penalty decreed and evidence of guilt is strong, it is all up to the agent of the State, the court, to grant or to withhold what is no longer available as a matter of right.  Of course, if “shall not be bailable” is taken to be the opposite of “shall be  bailable” (which is not what logic says is its contradictory), then on those twin conditions, the court must deny bail.  I advocate the reading that the contingent properly opposes the necessary, otherwise all reference to “flight-risk” and similar considerations would be impertinent!

The other phrase that bears closer examination is “when evidence of guilt is strong”.  Presently, it is required that the judge conduct a bail-hearing at which the prosecution is afforded the opportunity to present its evidence to determine whether evidence of guilt is strong or not.  In practice, while this hearing is in progress, the accused is detained.  And that is what is truly troublesome: What is the basis for denying bail to the accused when it has not yet been established that evidence of guilt is strong?  What we can do, if we are so minded, is to establish, by statute, a different manner of determining whether evidence of guilt is strong or not, besides a full-length bail hearing.  Justice Roberto Abad’s proposal for civil cases, now in the pilot-test stage, for face-to-face hearings might be one option: The principal witness presented by the prosecution is confronted by the rebutting testimony of a defense witness on each material point.  This would skirt the long-winded direct and cross examinations so beloved to courtroom acrobats, allowing the Court immediate, though tentative, evaluation of the strength or the weakness of the prosecution.  All that the Constitution requires, after all, is that there be a determination that the evidence of the prosecution is strong.

The first of the principles Rawls believes by which rational individuals will want society organized is to allow each person the widest latitude of liberty possible that is compatible with a similar latitude for all others.  And while the liberty of which Rawls writes is not necessarily the liberty of movement, curtailed by detention, it certainly includes that.  An undue curtailment of liberty cannot be just!

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