How the Supreme Court decided detainees’ plea for release amid pandemic

Twenty-two "vulnerable" detainees who had asked for provisional liberty on humanitarian grounds amid the COVID-19 pandemic hoped the release order would come from the Supreme Court (SC) itself.

They did not get it — the SC treated their petition as an application for bail and asked the trial courts to decide, signalling what the detainees' relatives said would be "another long wait" for their loved ones in jail.

The detainees' relatives and representatives filed the petition on April 8, the SC promulgated a decision on July 28, released it on September 10, and the petitioners' lawyers got a copy only on October 9.

The decision is only eight pages long: It says the SC is not the proper place for the petition because the bail eligibility of the petitioners, who are accused of crimes punishable by reclusion perpetua, is a question of fact that requires the evaluation of evidence to resolve. The SC does not try facts.

"...Being a court of last resort, this Court ingeminates and reminds the Bench and the Bar that it is not the proper avenue or forum to ventilate factual questions especially if they are presented for adjudication on the first instance," the court said.

The SC referred the petition, which it considers the petitioners' application for bail, to the trial courts and ordered them to resolve it with "utmost dispatch."

The decision does not indicate which of the justices wrote it; court spokesman Brian Keith Hosaka said the ruling is considered per curiam.

What follows the decision proper is almost 300 pages of separate opinions from eight justices that covered topics ranging from the bail case of former Senate President Juan Ponce Enrile to the relief that a magistrate believes should have been given to the newborn child of one of the petitioners.

Bail, Enrile

Bail is a matter of right except in cases where the alleged crimes are punishable by reclusion perpetua or up to 40 years of imprisonment, in which case it becomes a matter of court discretion, according to the court.

If the evidence of guilt is strong, bail petitions are rejected. It is granted otherwise. To determine the weight of the evidence, trial courts hold hearings.

The SC was unanimous in concluding to treat the petition as an application for bail or recognizance.

One of the issues that figured in the justices' deliberations was how to treat the court's 2015 ruling granting bail to former senator Juan Ponce Enrile, who faces a plunder case, on humanitarian grounds. The detainees in the 2020 case invoked the Enrile ruling in their petition.

Associate Justices Marvic Leonen Leonen, Estela Perlas-Bernabe and Alfredo Benjamin Caguioa said the Enrile ruling is pro hac vice, or applicable only to Enrile's case and not as precedent.

Chief Justice Diosdado Peralta disagreed, saying the court did not say the ruling had a pro hac vice application. He added that the promulgation of pro hac vice decisions has already been declared illegal by the SC.

Associate Justice Amy Lazaro-Javier was of the same position, saying that the SC did not say the Enrile ruling was only for the benefit of the veteran politician.

"The Majority could not have said that Enrile was pro hac vice because that would have only validated what Justice Leonen has long been articulating about the decision — that we have a justice system for the powerful and another justice system for the powerless. Any reading of Enrile will never elicit that admission," Javier wrote in her opinion.

Writ of kalayaan

The petitioners had cited dismal jail conditions as additional risk factors for COVID-19. The justices discussed jail congestion in their separate opinions, but Leonen took a step further and suggested a new writ: the writ of kalayaan.

In his 81-page opinion, Leonen said the writ of kalayaan, which he said would be similar to the writ of kalikasan, would be issued "when all the requirements to establish cruel, inhuman, and degrading punishment are present."

He said the writ of kalayaan "should provide an order of precedence in order to bring the occupation of jails to a more humane level."

"Those whose penalties are the lowest and whose crimes are brought about, not by extreme malice, but by the indignities of poverty may be prioritized," he wrote.

"Certainly, the writ of kalayaan will be the distinguishing initiative of the Peralta Court -- a measure that is grounded on social justice."

Baby River

In the time it took the court to decide, one of the petitioners, 23-year-old activist Reina Mae Nasino, gave birth and was ordered separated from her child.

Justice Lazaro-Javier took particular notice of Nasino and her child, saying in her 35-page opinion that she believed the detainee's baby is entitled to separate protection apart from what her mother would be entitled to.

"Hence, while I recognize and adhere to the primordial if not exclusive role of the Executive Branch in the fight against COVID-19, I believe that we have a role to play in protecting the baby from adverse consequences that are not of the baby's own doing," Javier wrote.

Javier did not specify what relief she was proposing, and her idea was not discussed in the court's short main decision. 

Nasino is now grieving — her daughter, River, died of pneumonia last Friday at three months old. She is pleading with the Manila Regional Trial Court for a chance to attend the child's wake and burial.

Political question doctrine

Justice Edgardo delos Santos, whose opinion was the longest at 92 pages, wrote that there is no constitutional provision or law that automatically grants bail to inmates who are sickly, elderly, pregnant, or otherwise "clinically vulnerable."

He also said that during times of emergency, the political question doctrine "will often tip the balance in favor of general welfare acts or policies in view of the State's duty to primarily protect general interests."

Javier disagreed.

"This is a recipe for authoritarianism which I am sure even respondents and the OSG (Office of the Solicitor General) are not advocating at present," she said. — RSJ, GMA News