The People of the Philippines, represented by the Office of the Special Prosecutor of the Office of the Ombudsman, have filed their Motion for Reconsideration to assail the decision promulgated on August 18, 2015 granting the petition for certiorari of the petitioner, and disposing thusly:

WHEREFORE, the Court GRANTS the petition for certiorari; ISSUES the writ of certiorari ANNUL[L]ING and SETTING ASIDE the Resolutions issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238 on July 14, 2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond of P1,000,000.00 in the Sandiganbayan; and DIRECTS the immediate release of petitioner Juan Ponce Enrile from custody unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.^[1]

The People rely on the following grounds for the reversal of the decision of August 18, 2015, to wit:

1. THE DECISION GRANTING BAIL TO PETITIONER WAS PREMISED ON A FACTUAL FINDING THAT HE IS NOT A FLIGHT RISK, ON A DETERMINATION THAT HE SUFFERS FROM A FRAGILE STATE OF HEALTH AND ON OTHER UNSUPPORTED GROUNDS UNIQUE AND PERSONAL TO HIM. IN GRANTING BAIL TO PETITIONER ON THE FOREGOING GROUNDS, THE DECISION UNDULY AND RADICALLY MODIFIED CONSTITUTIONAL AND PROCEDURAL PRINCIPLES GOVERNING BAIL WITHOUT SUFFICIENT CONSTITUTIONAL, LEGAL AND JURIS PRUDENTIAL BASIS.
   
   
   
   1. THE DECISION OPENLY IGNORED AND ABANDONED THE CONSTITUTIONALLY-MANDATED PROCEDURE FOR DETERMINING WHETHER A PERSON ACCUSED OF A CRIME PUNISHABLE BY RECLUSION PERPETUA OR LIFE IMPRISONMENT SUCH AS PLUNDER CAN BE GRANTED BAIL.
      
      
   2. THE DECISION ALSO DISREGARDED CONSTITUTIONAL PRINCIPLES AND RELEVANT COURT PROCEDURES WHEN IT GRANTED PETITIONER'S REQUEST FOR BAIL ON THE GROUND THAT HE IS NOT A FLIGHT RISK, PREMISED ON A LOOSE FINDING THAT THE PRINCIPAL PURPOSE OF BAIL IS MERELY TO SECURE THE APPEARANCE OF AN ACCUSED DURING TRIAL.
      
      
   3. CONTRARY TO THE STRICT REQUIREMENTS OF THE 1987 CONSTITUTION ON THE MATTER OF GRANTING BAIL TO PERSONS ACCUSED OF CRIMES PUNISHABLE BY RECLUSION PERPETUA OR LIFE IMPRISONMENT, THE DECISION ERRONEOUSLY HELD THAT PETITIONER SHOULD BE GRANTED BAIL BECAUSE OF HIS FRAGILE STATE OF HEALTH, AND BECAUSE OF OTHER UNSUPPORTED AND DEBATABLE GROUNDS AND CIRCUMSTANCES PURELY PERSONAL AND PECULIAR TO HIM, WITHOUT REFERENCE TO THE STRENGTH OF THE PROSECUTION'S EVIDENCE AGAINST HIM.
      
   
   
2. THE DECISION VIOLATES THE PEOPLE'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW SINCE IT WAS BASED ON GROUNDS NOT RAISED IN THE PETITION AND THEREFORE NEVER REFUTED OR CONTESTED.
   
   
3. THE DECISION GAVE PREFERENTIAL TREATMENT AND UNDUE FAVOR TO PETITIONER IN A MANNER INCONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE 1987 CONSTITUTION.^[2]
   

The People argue that the decision is inconsonant with deeply-embedded constitutional principles on the right to bail; that the express and unambiguous intent of the 1987 Constitution is to place persons accused of crimes punishable by reclusion perpetua on a different plane, and make their availment of bail a matter of judicial discretion, not a matter of right, only upon a showing that evidence of their guilt is not strong; and that the Court should have proceeded from the general proposition that the petitioner had no right to bail because he does not stand on equal footing with those accused of less grave crimes.

The People contend that the grant of provisional liberty to a person charged with a grave crime cannot be predicated solely on the assurance that he will appear in court, but should also consider whether he will endanger other important interests of the State, the probability of him repeating the crime committed, and how his temporary liberty can affect the prosecution of his case; that the petitioner's fragile state of health does not present a compelling justification for his admission to bail; that age and health considerations are relevant only in fixing the amount of bail; and that even so, his age and health condition were never raised or litigated in the Sandiganbayan because he had merely filed thereat a Motion to Fix Bail and did not thereby actually apply for bail.

Lastly, the People observe that the decision specially accommodated the petitioner, and thus accorded him preferential treatment that is not ordinarily enjoyed by persons similarly situated.

Ruling of the Court

The Court finds no compelling or good reason to reverse its decision of August 18, 2015.

To start with, the People were not kept in the dark on the health condition of the petitioner. Through his Omnibus Motion dated June 10, 2014 and his Motion to Fix Bail dated July 7, 2014, he manifested to the Sandiganbayan his currently frail health, and presented medical certificates to show that his physical condition required constant medical attention.^[3] The Omnibus Motion and his Supplemental Opposition dated June 16, 2014 were both heard by the Sandiganbayan after the filing by the Prosecution of its Consolidated Opposition.^[4] Through his Motion for Reconsideration, he incorporated the findings of the government physicians to establish the present state of his health. On its part, the Sandiganbayan, to satisfy itself of the health circumstances of the petitioner, solicited the medical opinions of the relevant doctors from the Philippine General Hospital.^[5] The medical opinions and findings were also included in the petition for certiorari and now form part of the records of the case.

Clearly, the People were not denied the reasonable opportunity to challenge or refute the allegations about his advanced age and the instability of his health even if the allegations had not been directly made in connection with his Motion to Fix Bail.

Secondly, the imputation of "preferential treatment" in "undue favor" of the petitioner is absolutely bereft of basis.^[6] A reading of the decision of August 18, 2015 indicates that the Court did not grant his provisional liberty because he was a sitting Senator of the Republic. It did so because there were proper bases - legal as well as factual - for the favorable consideration and treatment of his plea for provisional liberty on bail. By its decision, the Court has recognized his right to bail by emphasizing that such right should be curtailed only if the risks of flight from this jurisdiction were too high. In our view, however, the records demonstrated that the risks of flight were low, or even nil. The Court has taken into consideration other circumstances, such as his advanced age and poor health, his past and present disposition of respect for the legal processes, the length of his public service, and his individual public and private reputation.^[7] There was really no reasonable way for the Court to deny bail to him simply because his situation of being 92 years of age when he was first charged for the very serious crime in court was quite unique and very rare. To ignore his advanced age and unstable health condition in order to deny his right to bail on the basis alone of the judicial discretion to deny bail would be probably unjust. To equate his situation with that of the other accused indicted for a similarly serious offense would be inherently wrong when other conditions significantly differentiating his situation from that of the latter's unquestionably existed.^[8]

Section 2, Rule 114 of the Rules of Court expressly states that one of the conditions of bail is for the accused to "appear before the proper court whenever required by the court or these Rules." The practice of bail fixing supports this purpose. Thus, in Villaseñor v. Abaño,^[9] the Court has pronounced that "the principal factor considered (in bail fixing), to the determination of which most factors are directed, is the probability of the appearance of the accused, or of his flight to avoid punishment."^[10] The Court has given due regard to the primary but limited purpose of granting bail, which was to ensure that the petitioner would appear during his trial and would continue to submit to the jurisdiction of the Sandiganbayan to answer the charges levelled against him.^[11]

Bail exists to ensure society's interest in having the accused answer to a criminal prosecution without unduly restricting his or her liberty and without ignoring the accused's right to be presumed innocent. It does not perform the function of preventing or licensing the commission of a crime. The notion that bail is required to punish a person accused of crime is, therefore, fundamentally misplaced. Indeed, the practice of admission to bail is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. The spirit of the procedure is rather to enable them to stay out of jail until a trial with all the safeguards has found and adjudged them guilty. Unless permitted this conditional privilege, the individuals wrongly accused could be punished by the period of imprisonment they undergo while awaiting trial, and even handicap them in consulting counsel, searching for evidence and witnesses, and preparing a defense.^[12] Hence, bail acts as a reconciling mechanism to accommodate both the accused's interest in pretrial liberty and society's interest in assuring his presence at trial.^[13]

Admission to bail always involves the risk that the accused will take flight.^[14] This is the reason precisely why the probability or the improbability of flight is an important factor to be taken into consideration in granting or denying bail, even in capital cases. The exception to the fundamental right to bail should be applied in direct ratio to the extent of the probability of evasion of prosecution. Apparently, an accused's official and social standing and his other personal circumstances are considered and appreciated as tending to render his flight improbable.^[15]

The petitioner has proven with more than sufficient evidence that he would not be a flight risk. For one, his advanced age and fragile state of health have minimized the likelihood that he would make himself scarce and escape from the jurisdiction of our courts. The testimony of Dr. Jose C. Gonzales, Director of the Philippine General Hospital, showed that the petitioner was a geriatric patient suffering from various medical conditions,^[16] which, singly or collectively, could pose significant risks to his life. The medical findings and opinions have been uncontested by the Prosecution even in their present Motion for Reconsideration.

WHEREFORE, the Court DENIES the Motion for Reconsideration for lack of merit.

SO ORDERED.

Sereno, C. J., I join J. Leonen's dissent.
Velasco, Jr., Leonardo-De Castro, Peralta, Perez, and Mendoza, JJ., concur.
Carpio, J., I join the dissenting opinion of J. Leonen.
Brion, J., see separate concurring opinion
Del Castillo, J., I join the dissent of J. Leonen.
Reyes, J., on official leave.
Perlas-Bernabe, J., I join J. Leonen's dissent.
Leonen, J., I dissent. see separate opinion.
Jardeleza, J., no part.
Caguioa, J., I join the dissent of J. Leonen.

---

Sirs/Mesdames:

Please take notice that on July 12, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 28, 2016 at 1:40 p.m.

---

^[1] Rollo, pp. 624-625.

^[2] Id. at 686-687.

^[3] Id. at 152, 160-162, 253.

^[4] Id. at 611.

^[5] Id. at 309-311.

^[6] Id. at 712.

^[7] Id. at 620.

^[8] E.g., Stack v. Boyle, 342 U.S. 1 ("Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards, as expressed in the Federal Rules of Criminal Procedure, are to be applied in each case to each defendant.").

In his concurring opinion in Stack v. Boyle, Justice Jackson reminded:

It is complained that the District Court fixed a uniform blanket bail chiefly by consideration of the nature of the accusation, and did not take into account the difference in circumstances between different defendants. If this occurred, it is a clear violation of Rule 46(c). Each defendant stands before the bar of justice as an individual. Even on a conspiracy charge, defendants do not lose their separate-ness or identity. While it might be possible that these defendants are identical in financial ability, character, and relation to the charge — elements Congress has directed to be regarded in fixing bail — I think it violates the law of probabilities. Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them. The question when application for bail is made relates to each one's trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance. (Bold emphasis supplied.)

^[9] L-23599, September 29, 1967, 21 SCRA 312.

^[10] Id. at 317.

^[11] See Basco v. Rapatalo, A.M. No. RTJ-96-1335, March 5, 1997, 269 SCRA 220, 224.

^[12] Stack v. Boyle, supra note 8.

^[13] Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615 SCRA 619, 628.

^[14] See Justice Jackson's concurring opinion in Stack v. Boyle, supra note 8.

^[15] See Montana v. Ocampo, L-6352, January 29, 1953, 49 O.G. 1855.

^[16] (1) Chronic Hypertension with fluctuating blood pressure levels on multiple drug therapy;

(2) Diffure atherosclerotic cardiovascular disease composed of the following:

a. Previous history of cercbrovascular disease with carotid and vertebral artery disease;

b. Heavy coronary artery classifications;

c. Ankle Brachial Index suggestive of arterial classifications.

(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by Holter monitoring;

(4) Asthma-COPD Overlap Syndrome (ACOS) and postnasal drip syndrome;

(5) Ophthalmology:

a. Age-related mascular degeneration, neovascular s/p laser of the Retina, s/p Lucentis intra-ocular injections;

b. S/p Cataract surgery with posterior chamber intraocular lens.

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

b. High cholesterol levels/clyslipidemia;

c. Alpha thalassemia;

d. Gait/balance disorder;

e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;

f. Benign prostatic hypertrophy (with documented enlarged prostate on recent ultrasound).

---

BRION, J.:

I write this Separate Opinion to reflect my view and explain my vote on the deliberations of the Court En Banc on August 18, 2015 on the issue of the provisional release of petitioner Juan Ponce Enrile from detention. I also explain in this Opinion why I vote to deny the motion for reconsideration filed by the People of the Philippines.

On August 18, 2015, the Court, voting 8-4, granted the petition for certiorari filed by Enrile to assail and annul the resolutions dated July 14, 2014 and August 8, 2014 issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238. The dispositive portion of this decision provides:

WHEREFORE, the Court GRANTS the petition for certiorari; ISSUES the writ of certiorari ANNULING and SETTING ASIDE the Resolutions issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238 on July 14, 2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond of P1,000,000.00 in the Sandiganbayan; and DIRECTS the immediate release of petitioner Juan Ponce Enrile from custody unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.

The People, through the Office of the Special Prosecutor, moved to reconsider this decision, and claimed that the grant of bail to Enrile "unduly and radically modified constitutional and procedural principles governing bail without sufficient constitutional, legal and jurisprudential basis."^[1] It argued that since Enrile was charged with a grave crime punishable by reclusion perpetua to death, he cannot be admitted to bail as a matter of right unless it had been determined that evidence of his guilt was not strong.

The People further alleged that the ponencia erred in granting Enrile provisional liberty on the erroneous premise that the principal purpose of bail is to ensure the appearance of the accused during trial. It maintained that the grant of provisional liberty must be counter-balanced with the legitimate interests of the State to continue placing the accused under preventive detention when circumstances warrant.

The People further claimed that there is no obligation on the part of the State to allow Enrile to post bail even under international law since the latter's detention was an incident of a lawful criminal prosecution. It added that age and health are not relevant in the determination of whether the evidence of guilt against Enrile is strong; and that "there is no provision in the 1987 Constitution, in any statute or in the Rules of Court"^[2] that allows the grant of bail for humanitarian considerations.

The People likewise claimed that its constitutional right to due process had been violated since the Court granted provisional liberty to Enrile based on grounds that were not raised by Enrile in connection with his bail request.

Finally, the People alleged that the ponencia violated the equal protection clause of the 1987 Constitution when it "gave preferential treatment and undue favor"^[3] to Enrile.

My Position:

I reiterate that Enrile should be admitted to bail. I likewise vote to deny the motion for reconsideration filed by the Office of the Special Prosecutor.

The Right to Bail and the Court's Equity Jurisdiction

Our Constitution zealously guards every person's right to life and liberty against unwarranted state intrusion; indeed, no state action is permitted to invade this sacred zone except upon observance of due process of law.

Like the privilege of the writ of habeas corpus, the right to bail provides complete substance to the guarantee of liberty under the Constitution; without it, the right to liberty would not be meaningful, while due process would almost be an empty slogan.^[4] A related right is the right to be presumed innocent from where, the right to bail also draws its strength.

Bail is accorded to a person under the custody of the law who, before conviction and while he enjoys the presumption of innocence, may be allowed provisional liberty upon the filing of a bond to secure his appearance before any court, as required under specified conditions.^[5] State interest is recognized through the submitted bond and by the guarantee that the accused would appear before any court as required under the terms of the bail.

In Leviste v. Court of Appeals,^[6] the Court explained the nature of bail in the following manner:

Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be required, is the answer of the criminal justice system to a vexing question: what is to be done with the accused, whose guilt has not yet been proven, in the "dubious interval," often years long, between arrest and final adjudication. Bail acts as a reconciling mechanism to accommodate both the accused's interest in pretrial liberty and society's interest in assuring the accused's presence at trial.

The constitutional mandate is that "[a]ll 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. x x x."^[7]

Under this provision, bail is clearly a demandable constitutional right; it only ceases to be so recognized when evidence of guilt of the person - charged with a crime that carries the penalty of reclusion perpetua, life imprisonment, or death - is found to be strong. From the perspective of innocence, this degree of evidence apparently renders less certain the presumption of innocence that the accused enjoys before conviction.

But while bail is separately treated for those charged with a crime that carries the penalty of reclusion perpetua or higher, the Constitution does not expressly and absolutely prohibit the grant of bail even for the accused who are so charged.

If the evidence of guilt is not strong, as the courts may determine in their discretion, then the accused may be demanded still as of right.

If the evidence of guilt, on the other hand, is strong, this preliminary evaluation, made prior to conviction, may render the presumption of innocence lighter in its effects, but does not totally negate it; constitutionally, the presumption of innocence that the accused enjoys still exists as only final conviction erases it.

Hand in hand with these thoughts, I have considered the judicial power that the courts have been granted under the Constitution. This power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. It likewise encompasses the protection and enforcement of constitutional rights, through promulgated rules that also cover pleading, practice and procedure.^[8]

I hold the view that judicial power, by its express terms, is inclusive rather than exclusive: the specific powers mentioned in the Constitution do not. constitute the totality of the judicial power that the Constitution grants the courts. Time and again, the Supreme Court has given this constitutional reality due recognition by acting, not only within the clearly defined parameters of the law, but also within that penumbral area not definitively defined by the law but not excluded from the Court's authority by the Constitution and the law.

The Court has particularly recognized its authority to so act if sufficiently compelling reasons exist that would serve the ends of the Constitution - the higher interests of justice, in this case, the protection and recognition of the right to liberty based on the special circumstances of the accused.

A prime example of an analogous Court action would be in the case of Leo Echagaray where the Court issued a temporary restraining order (TRO) to postpone the execution of Echegaray and asserted its authority to act even in the face of the clear authority of the President to implement the death penalty.

In Echegaray v. Secretary of Justice,^[9] the public respondents (Secretary of Justice, et al.) questioned the Court's resolution dated January 4, 1999 temporarily restraining the execution of Leo Echegaray and argued, among others, that the decision had already become final and executory, and that the grant of reprieve encroaches into the exclusive authority of the executive department to grant reprieve.

In ruling that it had jurisdiction to issue the disputed TRO, the Court essentially held that an [a]ccused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. We further reasoned out that the powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life.^[10]

While Echegaray did not involve the right to bail, it nonetheless shows that the Court will not hesitate to invoke its jurisdiction to effectively safeguard constitutional rights and liberties.

In Secretary of Justice v. Hon. Lantion,^[11] the Court applied what it termed as "rules of fair play" so as not to deny due process to Mark Jimenez during the evaluation process of an extradition proceeding.

In this case, the United States Government requested the Philippine Government for the extradition of Mark Jimenez to the United States. The Secretary of Foreign Affairs forwarded this request to the Department of Justice. Pending the evaluation of the extradition documents by the DOJ, Jimenez requested for copies of the official extradition request and all pertinent documents, and the holding in abeyance of the proceedings.

When the DOJ denied his request for being premature, Jimenez filed an action for mandamus, certiorari and prohibition before the Regional Trial Court, Branch 25, Manila. The RTC issued an order directing the Secretary of Justice, the Secretary of Foreign Affairs, and the NBI to maintain the status quo by refraining from conducting proceedings in connection with the extradition request of the US Government. The Secretary of Justice questioned the RTC's order before this Court.

In dismissing this petition, the Court ruled that although the Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding, the evaluation process - understood as the extradition proceedings proper - belongs to a class by itself; it is sui generis. The Court thus characterized the evaluation process to be similar to a preliminary investigation in criminal cases so that certain constitutional rights are available to the prospective extraditee. Accordingly, the Court ordered the Secretary of Justice to furnish Jimenez copies of the extradition request and its supporting papers, and lo grant him a reasonable time within which to file his comment with supporting evidence.

The Court explained that although there was a gap in the provisions of the RP-US Extradition Treaty regarding the basic due process rights available to the prospective extradite at. the evaluation stage of the proceedings, the prospective extraditee faces the threat of arrest, not only after the extradition petition is filed in court, but even during, the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. It added that the Rules of Court guarantees the respondent's basic due process rights in a preliminary investigation, granting him the right to be furnished a copy of the complaint, the affidavits and other supporting documents, and the right to submit counter-affidavits and other supporting documents, as well as the right to examine all other evidence submitted by the complainant.

While the Court in Lantion applied the "rules of fair play" and not its equity jurisdiction, the distinction between the two with respect to this case, to me, is just pure semantics. I note in this case that the Court still recognized Jimenez's right to examine the extradition request and all other pertinent documents pertaining to his extradition despite the gap in the law regarding the right to due process of the person being extradited during the evaluation stage.

Based on these constitutional considerations, on the dictates of equity and the need to serve the higher interest of justice, I believe that it is within the authority of the Court to inquire if the special circumstances the accused submitted are sufficiently compelling reasons for the grant of bail to Enrile.

Equity jurisdiction is used to describe the power of the court to resolve issues presented in a case in accordance with natural rules of fairness and justice in the absence of a clear, positive law governing the resolution of the issues posed.^[12] Equity jurisdiction aims to do complete justice in cases where a court of law is unable to adapt its judgments to the special circumstances of a case because of the inflexibility of its statutory or legal jurisdiction. Equity is the principle by which substantial justice may be attained in cases where the prescribed or customary forms of ordinary law are inadequate.^[13]

In Daan v. Hon. Sandiganbayan (Fourth Division),^[14] we further expounded on this concept as follows:

Equity as the complement of legal jurisdiction seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do. Equity regards the spirit of and not the letter, the intent and not the form, the substance rather than the circumstance, as it is variously expressed by different courts.

I am not unaware that courts exercising equity jurisdiction must still apply the law and have no discretion to disregard the law.^[15] Equitable principles must always remain subordinate to positive law, and cannot be allowed to subvert it, nor do these principles give to the Courts authority to make it possible to do so.^[16] Thus, where the law prescribes a particular remedy with fixed and limited boundaries, the court cannot, by exercising equity jurisdiction, extend the boundaries further than the law allows.^[17] As the Court explained in Mangahas v. Court of Appeals:^[18]

For all its conceded merits, equity is available only in the absence of law and not as its replacement. Equity is described as justice outside legality, which simply means that it cannot supplant although it may, as often happens, supplement the law. x x x all abstract arguments based only on equity should yield to positive rules, which pre-empt and prevail over such persuasions. Emotional appeals for justice, while they may wring the heart of the Court, cannot justify disregard of the mandate of the law as long as it remains in force.

Similarly, in Phil. Rabbit Bus Lines, Inc. v. Judge Arciaga,^[19] the Court held [t]hat there are instances, indeed, in which a court of equity gives a remedy, where the law gives none; but where a particular remedy is given by the law, and that remedy is bounded and circumscribed by particular rules, it would be very improper for the court to take it up where the law leaves it and to extend it further than the law allows.

Where the libertarian intent of the Constitution, however, is beyond dispute; where this same Constitution itself does not substantively prohibit the grant of provisional liberty even to those charged with crimes punishable with reclusion perpetua where evidence of guilt is strong; and where exceptional circumstances are present as compelling reasons for humanitarian considerations, I submit that the Court does not stray from the parameters of judicial power if it uses equitable considerations in resolving a case.

I note in this regard that together with Section 13, Article III of the Constitution which provides that:

[a]ll 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. x x x

Section 7 of Rule 114 of the Revised Rules of Court states that no person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action. Thus, seemingly, there exists a law or, to be exact, a remedial rule, that forecloses the grant of bail to an accused who falls within the exception identified under Section 13, Article III of the Constitution.

Rule 114 of the Revised Rules of Court, however, cannot foreclose the exercise by the Court of a discretionary grant of bail because the constitutional provision on bail speaks only of bail as a matter of right and does not prohibit a discretionary grant by the courts, particularly by the Supreme Court which is the fountainhead of all rules of procedure and which can, when called for, suspend the operation of a rule of procedure. In hierarchal terms, the constitutional provision on bail occupies a very much higher plane than a procedural rule.

Notably, Rule 114 directly addresses the grant of a right under the constitutional provision - a situation where no equitable considerations are taken into account. In this situation, the Court's hands are in fact tied as it must comply with the direct command of the Constitution.

But when compelling circumstances exist, as has been described above, the situation cannot but change and shifts into that penumbral area that is not covered by the exact parameters of the express words of the Constitution yet is not excluded by it. In this domain, when compelling reasons exist to carry into effect the intent of the Constitution, equity can come into play.

I reiterate that the fundamental consideration in confining an accused before conviction is to assure his presence at the trial. The denial of bail in capital offense is on the theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face a verdict in court. Hence, the exception to the fundamental right to be bailed should be applied in direct ratio to the extent of the probability of the evasion of the prosecution.^[20]

As the ponencia recognized, these circumstances are Enrile's advanced age (91), his state of health (he has been in and out of hospital before and since his arrest, a condition that is not surprising based on his age alone), and the almost nil chance that Enrile would evade arrest.

Dr. Jose C. Gonzales, the Director of the PGH, testified that Enrile underwent clinical and laboratory examinations, as well as pulmonary evaluation and pulmonary function tests on various dates on August 2014, and was found to be suffering from the following conditions:

(1)	Chronic Hypertension with fluctuating blood pressure levels on multiple drug theraphy;
(2)	Diffuse atherosclerotic cardiovascular disease composed of the following:
	a.	Previous history of cerebrovascular disease with carotid and vertebral artery disease;
	b.	Heavy coronary artery calcifications;
	c.	Ankle Brachial Index suggestive of arterial calcifications.
(3)	Atrial and ventricular Arrhythmia (irregular heartbeat) documented by Holter monitoring;
(4)	Asthma-COPD Overlap Syndrome and postnasal drip syndrome;
(5)	Ophthalmology:
	a.	Age-related macular degeneration, neovascular s/p laser of the Retina, s/p Lucentis intra-ocular injections
	b.	S/p Cataract surgery with posterior chamber intraocular lens
(6)	Historical diagnoses of the following:
	a.	High blood sugar/diabetes on medications;
	b.	High cholesterol levels/dyslipidemia;
	c.	Alpha thalassemia;
	d.	Gait/balance disorder;
	e.	Upper gastrointestinal bleeding (etiology uncertain) in 2014;
	f.	Benign prostatic hypertrophy (with documented enlarged prostate on recent ultrasound).

In his Manifestation and Compliance, Dr. Gonzales further added that "the following medical conditions of Senator Enrile pose a significant risk for life-threatening events": (1) fluctuating hypertension, which may lead to brain or heart complications, including recurrence of stroke; (2) arrhythmias, which may lead to fatal or nonfatal cardiovascular events; (3) diffuse atherosclerotic vascular disease may indicate a high risk for cardiovascular events; (4) exacerbations of asthma-COPD Overlap Syndrome may be triggered by certain circumstances (excessive heat, humidity, dust or allergen exposure) which may cause a deterioration in patients with Asthma or COPD.

During the July 14, 2014 hearing, the witness-cardiologist expounded on the delicate and unpredictable nature of Enrile's arrhythmia under the following exchange with the court:

AJ MARTIRES:
Q:	So, the holter monitoring was able to record that the accused is suffering from arrhythmia?
	What is arrhythmia, Doctor?
CARDIOLOGIST:
A:	Arrhythmia is an irregular heartbeat. We just reviewed the holter of Senator Enrile this morning again, prior to coming here, and we actually identified the following irregularities:

There were episodes of atrial fibrillation, which is a very common arrhythmia in elderly individuals, pre-disposing elderly dangers for stroke;

There were episodes of premature ventricular contractions of PVCs; and episodes of QT tachy cardia.

x x x x

Q:	So, what are these different types of arrhythmia?
A:	Okay, Senator Enrile actually has three (3) different types of arrhythmia, at least, based on our holter.

One is atrial fibrillation. I would say that it is the most common arrhythmia found in our geriatric patients. It is a very important arrhythmia, because it is a risk factor for stroke, and Senator Enrile actually already has one documentation of previous stroke based on an MRI study.

Second, he has premature ventricular contractions (PVCs). Again, very normal in patients who are in his age group; and

Third, is the atrial tachy cardia, which is another form of atrial fibrillation. He has these three types of irregular heartbeat.

Q:	These three types are all dangerous?
A:	Yes, your Honor. These arrhythmias are dangerous under stressful conditions. There is no way we can predict when these events occur which can lead to life-threatening events.

x x x x.^[21] (Emphasis supplied)

Dr. Gonzales likewise classified Enrile as a patient "under pharmacy medication" owing to the fact that for arrhythmia alone, he is taking the following medications: cilostazol; telmisartan; amlodipine; Coumadin; norvasc; rosuvastin; pantoprazole; metformin; glycoside; centrum silver; nitramine and folic acid.

The records further disclosed that: (1) Enrile has "diabetes mellitus, dyslipidemia, essential hypertension, extensive coronary artery calcification in the right coronary, left anterior descending and left circumflex, multifocal ventricular premature beats, episodes of bradycardia, colonic diverticulosis, thoracic and lumbar spondylosis L4-L5, alpha thalassemia and mucular degeneration, chronic lacunar ischemic zones, scattered small luminal plaques of proximal middle segments of basilar artery, both horizontal and insular opercural branches of middle cerebral arteries," and that he takes approximately 20 medicines a day; and (2) Enrile needs to undergo "regular opthlamologic check-up, monitoring and treatment for his sight threatening condition;" and that since 2008, he has been receiving monthly intravitreal injections to maintain and preserve his vision.

Notably, when Dr. Gonzales (PGH Medical Director) was asked during the July 14, 2014 hearing on whether Enrile - based on his observation - was capable of escaping, he replied that Enrile "has a problem with ambulation;" and that "even in sitting down, he needs to be assisted."

Significantly, the use of humanitarian considerations in the grant of bail on the basis of health is not without precedent.

In Dela Rama v. People,^[22] accused Francisco Dela Rama filed a motion before the People's Court asking for permission to be confined and treated in a hospital while his bail petition was being considered. The People's Court ordered that the Dela Rama be temporarily confined and treated at the Quezon Institute. It also rejected Dela Rama's bail application.

During Dela Rama's stay in the hospital. Dr. Miguel Canizares of the Quezon Institute submitted a report to the People's Court stating that Dela Rama suffered from a minimal, early, unstable type of pulmonary tuberculosis, and chronic granular pharyngitis. He also recommended that Dela Rama continue his stay in the sanatorium for purposes of proper management, treatment and regular periodic radiographic check-up up of his illness.^[23]

Dela Rama re-applied for bail on the grounds of poor health, but the People Court rejected his petition for bail was again rejected. Instead, it ordered that Dela Rama be further treated at the Quezon Institute, and that the Medical Director of the Quezon Institute submit monthly reports on the patient's condition.

Acting on Dela Rama's second petition for certiorari, this Court ruled that the People's Court had acted with grave abuse of discretion by refusing to release Dela Rama on bail. It reasoned out as follows:

The fact that the denial by the People's Court of the petition for bail is accompanied by the above quoted order of confinement of the petitioner in the Quezon Institute for treatment without the letter's consent, does not in any way modify or qualify the denial so as to meet or accomplish the humanitarian purpose or reason underlying the docfrine adopted by modern trend of courts decision which permit bail to prisoners, irrespective of the nature and merits of the charge against them, if their continuous confinement during the pendency of their case would be injurious to their health or endanger their life.

x x x x

Considering the report of the Medical Director of the Quezon Institute to the effect that the petitioner "is actually suffering from minimal, early, unstable type of pulmonary tuberculosis, and chronic, granular pharyngitis," and that in said institute they "have seen many similar cases, later progressing into advance stages when treatment and medicine are no longer of any avail;" taking into consideration that the petitioner's previous petition for bail was denied by the People's Court on the ground that the petitioner was suffering from quieseent and not active tuberculosis, and the implied purpose of the People's Court in sending the petitioner to the Quezon Institute for clinical examination and diagnosis of the actual condition of his lungs, was evidently to verify whether the petitioner is suffering from active tuberculosis, in order to act accordingly in deciding his petition for bail; and considering further that the said People's Court has adopted and applied the well-established doctrine cited in our above quoted resolution, in several cases, among them, the cases against Pio Duran (case No. 3324) and Benigno Aquino (case No. 3527), in which the said defendants were released on bail on the ground that they were ill and their continued confinement in New Bilibid prison would be injurious to their health or endanger their life; it is evident and we consequently hold that the People's Court acted with grave abuse of discretion in refusing to release the petitioner on bail. (Emphasis ours).

Contrary to what the People insinuated in its motion, there has been no Court decision expressly abandoning Dela Rama. That the amendments to Rule 114 did not incorporate the pronouncement in Dela Rama (that bail may be granted if continued confinement in prison would be injurious to their health or endanger their life) did not ipso facto mean that the Court was precluding an accused from citing humanitarian considerations as a ground for bail.

In United States v. Jones,^[24] the United States Circuit Court held that [w]here an application for bail showed that the prisoner's health was bad, his complaint pulmonary, and that, in the opinion of his physician, confinement during the summer might so far increase his disorder as to render it ultimately dangerous, x x x [t]he humanity of our laws, not less than the feelings of the court, favor the liberation of a prisoner upon bail under such circumstances. According to the court, it is not necessary that the danger which may arise from his confinement should be either immediate or certain. If, in the opinion of a skillful physician, the nature of his disorder is such that the confinement must be injurious and may be fatal, the prisoner "ought to be bailed."

I also point out that per the testimony of Dr. Servillano, the facilities of the PNP General Hospital (where Enrile had been detained) were inadequate to address emergency situations, such as when Enrile's condition suddenly worsens. Thus, Enrile's continued confinement at this hospital endangered his life.

While it could be argued that Enrile could have been transferred to another, better-equipped, hospital, this move does not guarantee that his health would improve. The dangers associated with a prolonged hospital stay were revealed in court by the government's own doctor, Dr. Gonzales. To directly quote from the records:

AJ QUIROZ:
Q:	Being confined in a hospital is also stressful, right?
DIRECTOR GONZALES:
A:	Yes, your Honor, you can also acquire pneumonia, hospital intensive pneumonia, if you get hospital acquired pneumonia, these are bacteria or micro organisms that can hit you, such that we don't usually confine a patient.
	If it is not really life threatening, such that it is better to have a community acquired pneumonia, because you don't have to use sophisticated antibiotics. But if you have a prolonged hospital stay, definitely, you would get the bacteria in there, which will require a lot of degenerational antibiotics.
	x x x x[25]

I therefore reiterate, to the point of repetition, that Enrile is already 91- years old, and his immune system is expectedly weak. His body might not adjust anymore to another transfer to a different medical facility.

To be sure, Enrile's medical condition was not totally unknown to the prosecution. To recall, Enrile filed his Motion for Detention at the PNP General Hospital and his Motion to Fix Bail before the Sandiganbayan on July 4, 2014 and July 7, 2014, respectively. In the former motion, Enrile claimed that that "his advanced age and frail medical condition" merited hospital arrest in the Philippine National Police General Hospital under such conditions that may be prescribed by the Sandiganbayan. He additionally prayed that in the event of a medical emergency that cannot be addressed by the Philippine National Police General Hospital, he may be allowed to access an outside medical facility. In his motion to fix bail, Enrile argued that his age and voluntary surrender were mitigating and extenuating circumstances. The Office of the Ombudsman filed its Opposition to the Motion to Fix Bail on July 9, 2014; the prosecution also submitted its Opposition to the Motion for Detention at the PNP General Hospital. To be sure, the prosecution had not been kept in the dark as regards the medical condition of Enrile.

I also submit, on the matter of evasion, that we can take judicial notice that Enrile had been criminally charged in the past and not once did he attempt to evade the jurisdiction of the courts; he submitted himself to judicial jurisdiction and met the cases against him head-on.^[26]

The People's insinuation that Enrile has shown "propensity to take exception to the laws and rules that are otherwise applicable to all, perhaps out of a false sense of superiority or entitlement" due to his refusal to enter a plea before the Sandiganbayan; his act of questioning the insufficiency of the details of his indictment; a motion to fix bail that he filed instead of a petition for bail; and his act of seeking detention in a hospital instead of in a regular facility, were uncalled for. Enrile was well within his right to avail of those remedies or actions since they were not prohibited by the Rules.

We are well aware that Enrile, after posting bail, immediately reported for work in the Senate. This circumstance, however, does not ipso facto mean that he is not suffering from the ailments we enumerated above (as found and testified to by the physicians).

To be fair, the majority did not hold that Enrile was so weak and ill that he was incapacitated and unable to perform his duties as Senator; it merely stated that he should be admitted to bail due to his old age and ill health.

Surely, one may be ill, and yet still opt to report for work. We note that Enrile told the media that he reported to work "to earn my pay," adding that, "I will perform my duty for as long as I have an ounce of energy."^[27] If Enrile chose to continue reporting for work despite his ailments, that is his prerogative.

Misplaced reliance on the equal protection clause

Contrary to the Ombudsman's claim, the grant of provisional liberty to Enrile did not violate the equal protection clause under the Constitution.

The guarantee of equal protection of the law is a branch of the right to due process embodied in Article III, Section 1 of the Constitution. It is rooted in the same concept of fairness that underlies the due process clause. In its simplest sense, it requires equal treatment, i.e., the absence of discrimination, for all those under the same situation.^[28]

In Biraogo v. Philippine Truth Commission of 2010,^[29] the Court explained this concept as follows:

x x x [E]qual protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly situated individuals in a similar manner. The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the state's duly constituted authorities. In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.

Hence, any claim of violation of the equal protection clause must convincingly show that there exists a classification that is blatantly arbitrary or capricious, and that there is no rational basis for the differing treatment. The present motion for reconsideration had not shown that there were other nonagenarian charged with a capital offense who are currently behind bars.

We note in this regard that Resolution No. 24-4-10 (Re: Amending and Repealing Certain Rules and Sections of the Rules on Parole and Amended Guidelines for Recommending Executive Clemency of the 2006 Revised Manual of the Board of Pardons and Parole) directs the Board to recommend to the President the grant of executive clemency of, among other, inmates who are seventy (70) years old and above whose continued imprisonment is inimical to their health as recommended by a physician of the Bureau of Corrections Hospital and certified under oath by a physician designated by the Department of Health. If convicted persons (i.e., persons whose guilt have been proven with moral certainty) are allowed to be released on account of their old age and health, then there is no reason why a mere accused could not be released on bail based on the same grounds.

The Joint Resolution of the Ombudsman did nor show any direct link of Enrile to the so-called PDAF scam

As the ponente of another Enrile case, I also made a painstaking cross-reference to the 144-page Joint Resolution of the Office of the Ombudsman dated March 28, 2014 (which became the basis of Enrile's indictment before the Sandiganbayan), but did not see anything there to show that Enrile received kickbacks and/or commissions from Napoles or her representatives.

This Joint Resolution contained an enumeration of the amounts of Special Allotment Release Order (SARO) released by the DBM; the projects and activities; the intended beneficiaries/LGUs; the total projects/activities cost; the implementing agency; the project partners/NGOs; the disbursement vouchers and their respective amounts and dates; the check numbers; the paying agencies/claimant or payee; the signatories of the vouchers; and the signatories of the Memorandum of Agreement (MOA).

Notably, Enrile's signature did not appear in any of the documents listed by the prosecution. The sworn statements of the so-called whistleblowers, namely Benhur Luy, Marina Sula, Merlina Suñas, as well as Ruby Tuason's Counter-Affidavit, also did not state that Enrile personally received money, rebates, kickbacks or commissions. In her affidavit, Tuason also merely presumed that whatever Reyes "was doing was with Senator Enrile's blessing" since there were occasions when "Senator Enrile would join us for a cup of coffee when he would pick her up." Luy's records also showed that that the commissions, rebates, or kickbacks amounting to at least P172,834,500.00 (the amount alleged in the plunder charge) were received by either Reyes or Tuason.

My findings were verified by recent news reports stating that the prosecutors admitted that they had no evidence indicating that Enrile personally received kickbacks from the multi-billion-peso pork barrel scam during the oral summation for the petition to post bail of alleged pork scam mastermind Janet Lim-Napoles before the Sandiganbayan Third Division. These reports also stated that prosecutor Edwin Gomez admitted that the endorsement letters identifying the Napoles-linked foundations as the beneficiaries of Enrile's PDAF were not signed by Enrile (Gomez said six of the endorsement letters were signed by Reyes while the rest were signed by Enrile's other chief of staff, Atty. Jose Antonio Evangelista).^[30]

I make it clear that I am not in any way prejudging the case against Enrile before the Sandiganbayan. I am simply pointing out that based on the records available to me as the ponente of a related Enrile case, there was no showing that Enrile received kickbacks or commissions relating to his PDAF. Whether Enrile conspired with his co-accused is a matter that needs to be threshed out by the Anti-Graft Court.

WHEREFORE, premises considered, I vote to DENY the present motion for reconsideration.

---

^[1] Motion for Reconsideration, pp. 3-4.

^[2] Id. at 21.

^[3] Id. at 28.

^[4] See Separate Opinion of Chief Justice Reynato Puno in Government of the United States of America v. Hon. Purganan, 438 Phil. 417, 471 (2002).

^[5] See Heirs of Delgado v. Gonzalez, 612 Phil. 817 (2009).

^[6] G.R. No. 189122, March 17, 2010, 615 SCRA 619, 627-628.

^[7] Article III, Section 13 of the 1987 Constitution.

^[8] Article VIII, Section 5(5), Constitution

^[9] 361 Phil. 73 (1999).

^[10] In his Separate Opinion. Associate Justice (ret.) Jose C. Vitug supported this view, and explained that:

x x x the authority of the Court to see to the proper execution of its final judgment, the power of the President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or modify the law that could benefit the convicted accused are not essentially preclusive of one another nor constitutionally incompatible and may each be exercised within their respective spheres and confines. Thus, the stay of execution issued by the Court would not prevent either the President from exercising his pardoning power or Congress from enacting a measure that may be advantageous to the adjudged offender.

^[11] 379 Phil. 165 (2000).

^[12] See Riano, Willard, Civil Procedure (A Restatement for the Bar), 2007. p. 30.

^[13] See Reyes v. Lim, 456 Phil. 1, 10 (2003).

^[14] 573 Phil. 368, 378-379 (2008), citing Poso v. Judge Mijares, 436 Phil. 295, 324 (2002).

^[15] Arsenal v. IAC, 227 Phil. 36 (1986).

^[16] See J.B.L. Reyes, The Trend Toward Equity Versus Positive Law in Philippine Jurisprudence, 58 Phil. L.J. 1, 4).

^[17] Alvendia v. Intermediate Appellate Court, G.R. No. 72138, January 22, 1990, 181 SCRA 252.

^[18] 588 Phil. 61 (2008).

^[19] 232 Phil. 400, 405 (1987). See also Agra v. Philippine National Bank (368 Phil 829, 844, [1999]) where the Court declared that:

"As for equity, which has been aptly described as 'justice outside legality,' this is applied only in the absence of, and never against, statutory law or, as in this case, judicial rules of procedure. Aequetas nunquam contravenit legis. This pertinent positive rules being present here, they should pre-empt and prevail over all abstract arguments based Only on equity. x x x"

^[20] Herrera, Oscar M., Remedial Law, vol. IV, 2007 ed., p. 466 (citation omitted).

^[21] TSN, July 14, 2014, pp. 22-24.

^[22] 77 Phil. 461 (1946).

^[23] See also http://www.globalhealthrights.org/asia/francisco-c-de-la-rama-v-the-peoples-court/ (last visited or August 15, 2015).

^[24] 3 Wn. (C.C.) 224, Fed. Cas. No. 15,495.

^[25] TSN, July 14, 2014, p. 33.

^[26] See Enrile v. Salazar, G.R. No. 92163, June 5, 1990, 186 SCRA 217.

^[27] See http://www.gmanetwork.com/news/story/534135/news/nation/out-on-bail-enrile-returns-to-work-at-the-senate (last visited, September 21, 2015).

^[28] See Separate Opinion of Justice Brion in Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 73.

^[29] G.R. No. 192935, December 7, 2010, 637 SCRA 78, 167 (citations omitted).

^[30] http://www.gmanetwork.com/news/story/536830/news/nation/no-proof-enrile-got-kickbacks-from-napoles-prosecution (last visited September 15, 2015); and http://newsinfo.inquirer.net/721987/court-told-no-proof-enrile-got-kickbacks (last visited September 16, 2015).

---

DISSENTING OPINION

LEONEN, J:

After his release solely on the basis of his frail health, Senator Juan Ponce Enrile immediately reported for work at the Senate.^[1]

Until the end of his term on June 30, 2016, he actively and publicly participated in the affairs of the Senate.^[2] The majority maintains that his release on humanitarian grounds due to his frail health still stands.^[3] This is a contradiction I cannot accept.

With due respect to my esteemed colleagues, I maintain my dissent.

The reversal of the Sandiganbayan Decision on its actions on the Motion to Fix Bail filed by petitioner is an unacceptable deviation from clear constitutional norms and procedural precepts. Carving this extraordinary exception is dangerous. The ponencia opens the opportunity of unbridled discretion of every trial court. It erases canonical and textually based interpretations of our Constitution. It undermines the judicial system and weakens our resolve to ensure that we guarantee the rule of law.

I

Fundamental to resolving this Petition for Certiorari is Article III, Section 13 of the Constitution:

ARTICLE III
BILL OF RIGHTS

. . . .

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.

Bail is a constitutional right of the accused. It should be correctly read in relation to his fundamental right to be presumed innocent.^[4] However, contrary to the position of the ponencia and of Associate Justice Arturo Brion in his Separate Opinion, availing of this right is also constrained by the same Constitution.

When the offense charged is not punishable by reclusion perpetua, bail is automatic. The only discretion of the court is to determine the amount and kind of bail to be posted.^[5] When the crime is not punishable by reclusion perpetua, there is no need for the court to determine whether the evidence of guilt is strong.

Equally fundamental, from the clear and unambiguous text of the provision of the Constitution, the Rules of Court, and our jurisprudence, is that when the offense charged is punishable by reclusion perpetua, bail shall be granted only after a hearing occasioned by a petition for bail. The phrase "except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong" found in the Constitution is a sovereign determination that qualifies the presumption of innocence and the right to bail of persons detained under custody of law. There is no room for equity when the provisions of the law are clear.

The Sandiganbayan, in that hearing, provides the prosecution with the opportunity to overcome its burden of proving that the evidence of guilt is strong.

The opportunity granted to the prosecution to prove that evidence of guilt is strong so as to defeat the prayer of an accused to be released on bail is a mandatory constitutional process.^[6] It is part of the prosecution's right to due process. It is an elementary requirement of fairness required by law and equity. In criminal prosecutions, it is not only the accused that is involved. The state represents the People. Thus, violating the prosecution's right to due process of law trivializes the interest of the People in criminal actions.

Thus, when the offense charged is punishable by reclusion perpetua, bail is regarded as a "matter of discretion."^[7]

When bail is a matter of discretion,^[8] an application for bail must be filed and a bail hearing must be mandatorily conducted to determine if the evidence of guilt is strong.^[9] Absent this, bail can neither be granted nor denied.

Accused was charged with plunder. Under Republic Act No. 7080,^[10] plunder is punishable by reclusion perpetua to death. Accused, through counsel, submitted a Motion to Fix Bail and thereby precluded any determination on whether the evidence against him was strong. Accused, through counsel, disregarded the fundamental requirements of the Constitution, the Rules of Court that this Court promulgated, and the unflinching jurisprudence of this Court.

The strength or weakness of the evidence has not been conclusively determined by the Sandiganbayan. The Sandiganbayan could not do so because accused's Motion to Fix Bail did not provide the prosecution the opportunity to present proof of whether the evidence of guilt is strong. Rather, the Motion to Fix Bail was premised on the following grounds:

First, the mitigating circumstances of accused's advanced age and his alleged voluntary surrender.^[11] Second, his allegation that his age and physical condition ensured that he was not a flight risk.^[12]

To repeat for purposes of emphasis, the prosecution did not have the opportunity to present evidence of whether the evidence of guilt was strong. This opportunity was truncated by accused himself when his counsel filed a Motion to Fix Bail, and not an application or a petition for bail as required by existing rules.

Justice Brion reveals that he has weighed the evidence still being presented before the Sandiganbayan.^[13] In his Separate Opinion, he points to his evaluation of the annexes attached to another Petition filed before this Court, which had nothing to do with the weight of the evidence or with whether accused is entitled to bail.

Enrile v. People,^[14] docketed as G.R. No. 213455, has nothing to do with this case. It cannot even be consolidated with this case docketed as G.R. No. 213847. That case raised the issue of whether there were sufficient allegations in the Information to sustain an arraignment.^[15] It did not occasion a hearing to determine whether the evidence of guilt was strong. To sustain the relief of petitioner, there was no need to examine the admissibility and weight of the evidence.

Documentary annexes attached to the pleadings in G.R. No. 213455 do not appear to have been evidence presented, admitted, and weighed by the Sandiganbayan in an application for bail. Neither, then, should a news report^[16]—hearsay in character—be accepted by any Justice of the Supreme Court as proof without the news report having undergone the fair process of presentation and admission during trial or in a proper hearing before the Sandiganbayan. Not only is it improper; it is unfair to the prosecution, and it is another extraordinary deviation from our Rules of Court.

II

I am also unable to accept the ponencia's ruling that:

Clearly, the People were not denied the reasonable opportunity to challenge or refute the allegations about his advanced age and the instability of his health even if the allegations had not been directly made in connection with his Motion to Fix Bail.^[17] (Emphasis in the original)

With all due respect, this conclusion is based on an inaccurate appreciation of what happened before the Sandiganbayan and the content of the present Petition for Certiorari. To recall:

On June 5, 2014, Senator Juan Ponce Enrile (Enrile) was charged with the crime of plunder punishable under Republic Act No. 7080. Section 2 of this law provides:

SEC. 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death[.]

On June 10, 2014, Enrile filed an Omnibus Motion before the Sandiganbayan, praying that he be allowed to post bail if the Sandiganbayan should find probable cause against him. On July 3, 2014, the Sandiganbayan denied the Omnibus Motion on the ground of prematurity since no warrant of arrest had been issued at that time. In the same Resolution, the Sandiganbayan ordered Enrile's arrest.

On the same day the warrant of arrest was issued and served, Enrile proceeded to the Criminal Investigation and Detection Group of the Philippine National Police in Camp Crame, Quezon City.

On July 7, 2014, Enrile filed a Motion to Fix Bail, arguing that his alleged age and voluntary surrender were mitigating and extenuating circumstances that would lower the imposable penalty to reclusion temporal. He also argued that his alleged age and physical condition indicated that he was not a flight risk. His prayer states:

WHEREFORE, accused Enrile prays that the Honorable Court allow Enrile to post bail, and forthwith set the amount of bail pending determination that (a) evidence of guilt is strong; (b) uncontroverted mitigating circumstances of at least 70 years old and voluntary surrender will not lower the imposable penalty to reclusion temporal; and (c) Enrile is a flight risk [sic].

The Office of the Ombudsman filed its Opposition to the Motion to Fix Bail dated July 9, 2014. Enrile filed a Reply dated July 11, 2014.

Pending the resolution of his Motion to Fix Bail, Enrile filed a Motion for Detention at the PNP General Hospital dated July 4, 2014, arguing that "his advanced age and frail medical condition" merit hospital arrest in the Philippine National Police General Hospital under such conditions that may be prescribed by the Sandiganbayan. He also prayed that in the event of a medical emergency that cannot be addressed by the Philippine National Police General Hospital, he may be allowed to access an outside medical facility. His prayer states:

WHEREFORE, accused Enrile prays that the Honorable Court temporarily place him under hospital confinement at the PNP General Hospital at Camp Crame, Quezon City, with continuing authority given to the hospital head or administrator to exercise his professional medical judgment or discretion to allow Enrile's immediate access of, or temporary visit to, another medical facility outside of Camp Crame, in case of emergency or necessity, secured with appropriate guards, but after completion of the appropriate medical treatment or procedure, he be returned forthwith to the PNP General Hospital.

After the prosecution's submission of its Opposition to the Motion for Detention at the PNP General Hospital, the Sandiganbayan held a hearing on July 9, 2014 to resolve this Motion.

On July 9, 2014, the Sandiganbayan issued an Order allowing Enrile to remain at the Philippine National Police General Hospital for medical examination until further orders of the court.^[18]

What is clear is that there were two (2) Motions separately filed, separately heard, and were the subjects of separate orders issued by the Sandiganbayan.

The Motion to Fix Bail was filed on July 7, 2014.^[19] The Ombudsman filed its Opposition to the Motion to Fix Bail on July 9, 2014.^[20] Accused filed his Reply on July 11, 2014.^[21] The Sandiganbayan Resolution denying accused's Motion to Fix Bail for being premature was issued on July 14, 2014.^[22]

It is this Resolution dated July 14, 2014—only this Resolution, together with the denial of the Motion for Reconsideration of this Resolution, and no other—that is the subject of the present Petition for Certiorari.

The other motion was a Motion for Detention at the Philippine National Police General Hospital dated July 4, 2014. It was in this Motion that accused argued "his advanced age and frail medical condition."^[23] The prosecution submitted an Opposition to this Motion on July 7, 2014.^[24] This Motion was orally heard on July 9, 2014.^[25] There was a separate Order allowing accused to remain at the Philippine National Police General Hospital. This Order was dated July 9, 2014.^[26]

The Order dated July 9, 2014, which allowed accused's detention in a hospital, is not the subject of this Petition for Certiorari. Apart from his hospital detention not being the subject of this Petition, accused did not question the conditions of his detention. The prosecution had conclusive basis to rely on accused's inaction. While evidence of his advanced age and frail medical condition was presented, accused was satisfied with hospital arrest and not release.

The basis for the Motion to Fix Bail was not the frail condition of accused. Rather, it was the Motion's argument that there were two (2) mitigating circumstances: advanced age and voluntary surrender.

Thus, the Sandiganbayan Resolution, the subject of this Petition for Certiorari, states:

[I]t is only after the prosecution shall have presented its evidence and the Court shall have made a determination that the evidence of guilt is not strong against accused Enrile can he demand bail as a matter of right. Then and only then will the Court be duty-bound to fix the amount of his bail.

To be sure, no such determination has been made by the Court. In fact, accused Enrile has not filed an application for bail. Necessarily, no bail hearing can even commence. It is thus exceedingly premature for accused Enrile to ask the Court to fix his bail.^[27]

Accused, through counsel, filed a Motion for Reconsideration^[28] based on the same argument, but this was similarly denied.^[29] Accused only raised his frail health in relation to the conclusion that he was not a flight risk.^[30]

Accused did not justify, on the basis of his frail health, his allowance to bail without a hearing on whether the evidence of guilt was strong. As extensively discussed in the Dissenting Opinion filed with the first resolution of this case, the majority in this Court granted bail on a ground other than that which was argued or prayed for in this Petition.

Furthermore, the certification relied upon by the majority was presented not for having accused released on bail. The hearing relating to this certification was to determine whether accused's detention in a hospital should continue.^[31] It was not for determining whether there were serious reasons for his urgent release.

Dr. Jose C. Gonzales' certification was in a Manifestation and Compliance dated August 28, 2014.^[32] This certification was submitted as an annex to a Manifestation^[33] before this Court regarding the remoteness of the possibility of flight of accused. This certification was not submitted to release accused on bail due to his ailments.

Finally, we imposed an arbitrary amount of P1,000,000.00 as bail for accused.^[34] The prosecution was not given the opportunity to comment on the amount of bail. The sufficiency of this amount, in relation to the net worth of accused or his sources of income, has not been presented in evidence. Whether it suffices to guarantee his appearance in further court proceedings, therefore, is the product of the collective conjecture of this Court. We are bereft with factual basis. Our rules are designed to have the Sandiganbayan or a trial court determine these facts. It is not within our competence to receive this type of evidence. Certainly, it is not within our jurisdiction to go beyond the provisions of the Constitution.

In my view, these observations show a quintessential disrespect for the inherent due process rights of the prosecution. We have sprung a surprise on the prosecution, and have given an unexpected gift to accused.

This is not fairness as I understand it.

III

Justice Brion further suggests that the prosecution was unable to show any other nonagenarian who is incarcerated and is in the same position as petitioner in this case.^[35]

This certainly is not the point. Again, the point is whether there is basis in our Constitution or in our Rules of Court to grant exceptional treatment to petitioner. I maintain that there is none.

Even if there were, there are still those whose conditions are worse off than that of petitioner.

Those of us who have prosecuted or defended an accused at various levels in our court system know the conditions of detention facilities in this country. Many of my colleagues have had the privilege of serving as judges of both the first- and second-level trial courts. They have more intimate knowledge of the conditions of our detention because they have supervised detention facilities as executive judges of their various stations.

To say that detention facilities are overcrowded is an understatement. In many places, detention prisoners have nowhere to get sound sleep. These facilities are populated by those who are under detention for allegedly selling less than one (1) gram of shabu, for allegedly stealing a cell phone, for allegedly committing estafa against their employers, and for the countless allegations of crimes committed only by those who do not have as many opportunities as petitioner in this case. They do not have the resources to hire their own medical specialists. They do not have the ability to pay for focused legal assistance. Thus, they suffer in silence. They await the ordinary course of justice required by our law and our Rules of Court. They do not have the resources to craft exceptions to what is contained in our law.

Indeed, petitioner is a nonagenarian who suffers from some medical ailments. Yet, we should not erase the privileges he was given.

Petitioner is accused of plunder, which requires a charge that he has defrauded the people of at least P75,000,000.00 or more and has taken advantage of his public office.^[36] He was not accused of stealing bread because he was driven by the hopelessness of fearing that his children would go hungry.

Petitioner did not share the crowded spaces of the impoverished hordes in detention facilities. He was given the privilege of being incarcerated in special quarters, and then later, in a government hospital. There was a constant stream of clothes and food that came to him through his friends, family, and staff.

Upon his release, petitioner would have mansions to go home to, with facilities full of comfort. He would not need to live in unnumbered shanties that could barely survive the vagaries of our weather systems.

Narrowing our vision and making his privileges invisible will result in unfounded judicial exceptionalism. Judicial exceptionalism, consciously or unconsciously, favors the rich and powerful. Injustice entrenches inequality. Inequality assures poverty. Poverty ensures crimes that provide discomfort to the rich. But crimes are expressions of hopelessness by many, no matter how illegitimate.

There may be no more nonagenarians who suffer in special confinement in government hospitals. Certainly, there are many more languishing in our ordinary detention centers.

All these should bother our sense of fairness.

IV

A lot of media coverage was given to my statements in Part IV of my Dissenting Opinion of the first resolution of this case. Many have concluded that my point was to imply that my colleagues who voted for the majority did not have the opportunity to read and reflect on the final contents of the Decision. Memes were generated to cast the result of this case as a battle between the Justices of this Court.

That was neither my express nor implied intention. No opinion of this Court should be interpreted in that manner. Every member of this Court knew the consequences of his or her position.

The purpose of that narrative was to explain why another Associate Justice chose not to write her separate dissenting opinion^[37] and to put in context the "apparent delay in the announcements regarding the vote and the date of promulgation"^[38] of the judgment.

A dissenting opinion, in my view, should be read to express the principled view of its author regarding the facts, issues, legal principles, and interpretative methodologies that should be applied in a case. It is never the forum to cast doubt on the character of esteemed colleagues.

Dissents, by their very nature, cause a degree of discomfort to those whose views are different. This discomfort is part of a collegiate court and a vibrant judiciary. It should be appreciated by the public as reflecting competing points of view on matters of principle, not as a staged and puerile clash of gladiators. The drama lies on the points raised, not on the personalities that are mediums for these standpoints.

Effective dissents strive to be articulate, but not caustic. An effective dissent is an effort to call attention to details and principles that may have been overlooked by the majority. It is never a means to undermine the competence of any member of this Court. It is the result of a constitutional duty to lay down what each of us views as a more convincing standpoint as well as a more reasoned and just conclusion.

Thus, I maintain my dissent. Justice should always be in accordance with law. Accommodations given to select accused on very shaky legal foundations weaken the public's faith on our judicial institutions.

I urge that we reconsider.

ACCORDINGLY, I vote to GRANT the Motion for Reconsideration.

---

^[1] See Patricia Lourdes Viray, Enrile returns to work at Senate, PHILIPPINE STAR, August 24, 2015 <http://www.philstar.com/headlines/2015/08/24/1491693/enrile-retums-work-senate> (visited July 7, 2016).

^[2] See Maila Ager, Enrile returns to Senate after dengue bout, gives warning to non-performing agencies, PHILIPPINE DAILY INQUIRER, October 5, 2015 <http://newsinfo.inquirer.net/728017/enrile-returns-to-senate-after-dengue-bout-gives-warning-to-non-perfonning-agencies> (visited July 7, 2016); Leila B. Salaverria, Enrile seeks reopening of Mamasapano probe, PHILIPPINE DAILY INQUIRER, November 10, 2015 <http://newsinfo.inquirer.net/738231/enrile-seeks-reopening-of-mamasapano-probe> (visited July 7, 2016); Maila Ager, Enrile proposes to raise OVP's 2016 budget to P500 million, INQUIRER.NET, November 23, 2015 <http://newsinfo.inquirer.net/741700/enrile-proposes-to-raise-ovps-2016-budget-to-p500-million> (visited July 7, 2016); Ruth Abbey Gita, Enrile question P250M intel fund for Aquino office, SUNSTAR Daily, November 23, 2015 <http://www.sunstar.com.ph/manila/local-news/2015/11/23/enrile-questions-p250m-intel-fund-aquino-office-443088> (visited July 7, 2016); Charissa Luci, Enrile: Senate could override presidential veto on SSS pension hike bill, MANILA BULLETIN, January 17, 2016 <http://www.mb.com.ph/enrile-senate-could-override-presidential-veto-on-sss-pension-hike-bill> (visited July 8, 2016); Maila Ager, Enrile blocks confirmation of COA, CSC officials, PHILIPPINE DAILY INQUIRER, February 3, 2016 <http://newsinfo.inquirer.net/761183/enrile-blocks-confirmation-of-audit-civil-service-appointments-officials> (visited July 7, 2016); and Enrile censures AMLC over stolen Bangladesh millions, GMA News Online, March 29, 2016 <http://www.gmanetwork.com/news/story/560759/money/companies/enrile-censures-amlc-over-stolen-bangladesh-millions> (visited July 7, 2016).

^[3] See Ponencia, p. 4.

^[4] CONST., art. Ill, sec. 14 (2) provides:

SECTION 14. . . . .

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

^[5] RULES OF COURT, rule 114, sec. 4 provides:

SEC. 4. Bail, a matter of right; exception. — All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognize as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment.

^[6] CONST., Art. III, sec. 13.

^[7] See RULES OF COURT, rule 114, sec. 5.

^[8] See RULES OF COURT, rule 114, secs. 4 and 5.

^[9] See Teehankee v. Rovira, 75 Phil. 634, 640-643 (1945) [Per J. Hilado, En Banc]; Herras Teehankee v. Director of Prisons, 76 Phil, 756, 774 (1946) [Per J. Hilado, En Banc]; Ocampo v. Bernabe, 11 Phil. 55, 62-63 (1946) [Per C.J. Moran, En Banc]; Feliciano v. Pasicolan, 112 Phil. 781 (1961) [Per J. Natividad, En Banc]; Siazon v. Presiding Justice of Circuit Criminal Court, 16^th Judicial District, Davao City, 149 Phil. 241, 249 (1971) [Per J. Makalintal, En Banc]; Basco v. Repatalo, 336 Phil. 214, 219-221 (1997) [Per J. Romero, Second Division]; People v. Honorable Presiding Judge of the Regional Trial Court of Muntinlupa (Branch 276), G.R. No. 151005, June 8, 2004, 431 SCRA 319, 324 [Per J. Panganiban, First Division]; and People v. Gako, 401 Phil. 514, 536-537 (2000) [Per J. Gonzaga-Reyes, Third Division].

^[10] An Act Defining and Penalizing the Crime of Plunder (1989).

^[11] Rollo, pp. 252-253, Motion to Fix Bail.

^[12] Id.

^[13] See J. Brion, Separate Opinion, pp. 15-16.

^[14] Enrile v. People, G.R. No. 213455, August 11, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/august2015/213847.pdf> [Per J. Brion, En Banc].

^[15] Id. at 5-8.

^[16] See J. Brion, Separate Opinion, pp. 15-16.

^[17] Ponencia, p. 3.

^[18] J. Leonen, Dissenting Opinion in Enrile v. Sandiganbayan (Third Division), G.R. No. 213847, August 18, 2015. <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/august2015/213847_leonen.pdf> 3-4 [Per J. Bersamin, En Banc], citing Petition for Certiorari, Annex I, pp. 4-5, 6-7; Annex J; Annex K; Annex H; and Annex O, p. 5.

^[19] Id.

^[20] Id.

^[21] Id.

^[22] Id.

^[23] Rollo, p. 245, Petition for Certiorari, Annex H.

^[24] Id. at 307, Petition for Certiorari, Annex O.

^[25] Id. at 306.

^[26] Id. at 306-308.

^[27] Id. at 84, Petition for Certiorari, Annex A.

^[28] Id. at 271-277, Petition for Certiorari, Annex L.

^[29] Id. at 89-102, Petition for Certiorari, Annex B.

^[30] Id. at 274-275.

^[31] Id. at 309-312, Petition for Certiorari, Annex P.

^[32] Id. at 373-375, Manifestation, Annex B.

^[33] Id. at 323-328.

^[34] RULES OF COURT, rule 114, sec. 9 provides:

SEC. 9. Amount of bail; guidelines. — The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required.

^[35] J. Brion, Separate Opinion, p. 15.

^[36] Rep. Act No. 7080 (2007), sec. 2.

^[37] See J. Leonen, Dissenting Opinion in Enrile v. Sandiganbayan (Third Division), G.R. No. 213847, August  18, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/august2015/213847.pdf> 16 [Per J. Bersamin, En Banc].

^[38] Id. at 17.