Last January, while campaigning in Bacoor City, presidential candidate Rodrigo Duterte promised Cavite voters that their former governor, Sen. Bong Revilla, would be released on bail if he becomes president. Today, Supreme Court justices are meeting to discuss the Revilla case for plunder, a capital and therefore non-bailable offense; tomorrow the court formally deliberates on the senator’s petition for bail. As it did in the case of Gloria Arroyo and the Marcos burial, will the Court help President Duterte keep another of his campaign promises?

The Sandiganbayan anti-graft court has twice rejected Revilla’s petition for bail in his pork barrel case, in large part because the senator had admitted in writing that the signatures in 168 key documents were either his or his representative’s. A reversal of the Sandiganbayan’s finding of “strong evidence” — the standard required to deprive a petitioner in a capital case of the constitutional right to bail — would be a shock to the judicial system. It would demoralize prosecutors and undermine the Supreme Court’s own standing. But under the present Court, it would not be unprecedented.

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Revilla supporter

On January 21, in Bacoor, candidate Duterte was asked by a Revilla supporter if he can assure a fair trial for the senator (“patas po ba kayo sa paglilitis”) if he were president. The long-time mayor of Davao City replied: “Ako, you can be very sure, lalabas ‘yan, lalabas ‘yan sa [he will leave] prison. I cannot guarantee na yung kaso, ma-e-erase, erase sa korte, pero [that the case will be erased at the courts but] I will see to it that they are also afforded the right to bail.”

A lawyer and former prosecutor himself, Duterte later told reporters that he meant that Revilla should enjoy the right to bail if the evidence against him wasn’t strong enough. Speaking before the enthusiastic crowd, however, he had not qualified his statement; he simply made a categorical promise. “Lalabas ‘yan.”

A Court still facing criticism for its decision allowing the burial of the late dictator Ferdinand Marcos at the Libingan ng Mga Bayani —another Duterte campaign promise — is now about to undergo another test. Will it disregard the work of the Sandiganbayan’s First Division and, as it did in the case of Sen. Juan Ponce Enrile, who is also accused of plundering the pork barrel system, find grave abuse of discretion on the part of the anti-graft court? The Enrile outcome was especially jarring to lawyers because the Court ruled that there was grave abuse of discretion without explaining how the Sandiganbayan committed it. (It just restated a definition.)

“The issue of whether the evidence was ‘strong’ enough to justify the continued detention of the accused is essentially ‘factual’ in nature,” former Supreme Court Chief Justice Artemio Panganiban wrote in his column shortly after the First Division’s first resolution dated December 1, 2014 and denying Revilla’s motion for bail was released.

“True, the accused have asked the [Sandiganbayan] for a reconsideration, saying the resolution was ‘speculative’ and, failing in that, may elevate the ruling to the Supreme Court via a petition for certiorari. This petition may prosper on only one ground: grave abuse of discretion, specifically, that the [Sandiganbayan] acted whimsically or arbitrarily.”

Panganiban concluded: “Seldom, however, does the Supreme Court reverse trial courts … in their factual assessments. This is because the high tribunal relies merely on the records or transcripts of the proceedings while trial judges observe the demeanor of the witnesses on the stand …”

Enrile precedent

But that comment was written before Enrile vs Sandiganbayan, a ruling promulgated on August 18, 2015 and penned by Associate Justice Lucas Bersamin. Despite Sandiganbayan rulings rejecting Enrile’s application for provisional release, the Supreme Court still found in his favor.

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Will the Court apply the new Enrile precedent to Revilla, the movie star and action hero, extending to him the same humanitarian considerations the nonagenarian Enrile enjoyed, or will it find that the popular senator enjoys the same “social and political standing” as veteran politician Enrile?

“In our view, his social and political standing and his having immediately surrendered to the authorities upon his being charged in court indicate that the risk of his flight or escape from this jurisdiction is highly unlikely,” Bersamin wrote. The same can be said of Revilla, but as many commentators wrote after the Enrile ruling came down, this standard actually cements the divide between the rich and the poor, between the powerful and the powerless.

This newspaper’s editorial of August 21, 2015 zeroed in on what may be the real precedent-setting consequence of the Enrile case: “the heart of Enrile’s case lies not in emphasizing his old age and frail health but in challenging the very concept of prima facie evidence, the cornerstone of our prosecutorial system: One of only two exceptions allowing the accused to post bail even in nonbailable crimes involves the presence of ‘strong evidence of guilt.’ Enrile’s challenge is that the evidence can be found strong (or not) only by the court, and only after the prosecution has finished presenting its evidence.”

Pork barrel scam

The rulings by the Sandiganbayan’s First Division of December 1, 2014 and of March 26, 2015, denying Revilla’s motion for reconsideration and to add evidence, comprehensively present the case against granting Revilla’s application for bail. (“However, the Court cautions that such conclusion shall not be regarded as a prejudgment on the merits of the case that are to be determined only after a full-blown trial.”)

First: Revilla, his representative Richard Cambe, and alleged pork barrel scam mastermind Janet Lim Napoles are accused of conspiring to “wilfully, unlawfully, and criminally amass, accumulate and/or acquire ill-gotten wealth” amounting to P224.5 million. They did so through fraudulent schemes involving the Priority Development Assistance Fund.

Second: The Sandiganbayan was already able to determine that, of the P224.5 million total, “the prosecution has so far strongly proven the amount of P103,000,000 … the total amount received by accused Cambe for Revilla.”

Third: The witnesses against Revilla, Cambe, and Napoles gave credible testimony that stood up in court, corroborated by the electronic and other forms of evidence.

Thus: “After a solicitous assessment of the evidence so far presented by the prosecution, the Court finds and declares that there is a strong proof to believe that accused Revilla, Cambe and Napoles committed the crime of plunder. Hence, they should be denied bail.”

This categorical finding is diametrically opposite candidate Duterte’s categorical promise.

At the Bacoor assembly, the Revilla supporter who asked Mr. Duterte prefaced his question with a confession: “Namimiss na namin ang aming mahal na senador [We miss our beloved senator].” Without skipping a beat, Mr. Duterte replied: “Pareho tayo, kaibigan ko man [Me too, he’s my friend].”

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