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Question No. - The Regional Trial Court case of Illegal Detention against Cedric Lee, et al is not bailable.

Seeming to be of the same category as Murder where the evidence of guilt is strong and committed by a
band, and seems to be of equal gravity as rape and other heinous drug cases above 200 grams. Why is
it so? What is the rationale behind during the deliberations in the Congressional Chambers prior to its
passage into law?

In answering the question above, the legislative history of these articles must be considered. The
legal thesis that can be propounded is that the non-bailable nature of the offense is not directly related to
the statute itself (Act 3815, known as the Revised Penal Code) or may it be found on its deliberation
thereof. As originally enacted in 1928, the Revised Penal Code (Act 3815 of the pre-Commonwealth
Philippine Legislature) provided, in its Articles 267, the following:
Art. 267. Detencion ilegal grave. Sera castigado con la pena de reclusion
temporal el particular que secuestrare o encerrare a otro o en cualquier forma le
privare de libertad:
1. Si el encierro o detencion hubiere durado mas de veinte dias.
2. Si se hubiere ejecutado con simulacion de autoridad publica.
3. Si se hubieren causado lesiones graves a la persona, encererada o detenida,
o se le hubiere amenazado de muerte.

Clearly, in the above Spanish texted provision, the original penalty imposed upon the felony of Serious
Illegal Detention is reclusion temporal. Only during 1946 when Republic Act No. 18 was enacted that Kidnapping
for purposes of ransom was made an independent variant with a heavier penalty (reclusion temporal to death) and
also added the last paragraph of Article 267, to wit;

"The penalty shall be reclusion perpetua to death where the kidnapping or
detention was committed for the purpose of extorting ransom from the victim or any
other person, even if none of the circumstances above mentioned were present in the
commission of the offense."

But still even after this, the penalty for Illegal Detention remains as reclusion temporal. Only during 1954,
after the enactment of Republic Act No. 1084 that the penalty was raised to reclusion perpetua to death. In
conclusion therefore, the non-bailable nature of the above-mentioned offense cannot be found in the
Congressional Records during when the said statute was still being deliberated upon. The reason is that the
penalty originally imposed was never intended to be capital punishment.

The provision which provides for the non-bailability of offenses penalized by capital punishment, can be
found in no less than the 1987 Philippine Constitution (Art. III Sec. 14) and reiterated in the Revised Rules of Court
(Rule 114 Sec. 7 and in relation to Sec. 5), to wit:

Art. III, Sec. 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.

Asistio, et al vs. Hon. San Diego, G.R. No. L-21991, March 31, 1964
Rule 114, Sec. 7. Capital offense of an offense punishable by reclusion
perpetua or life imprisonment, not bailable. No person charged with a capital
offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal

Further research on the matter suggests that said constitutional provision was present in both the 1973
and 1935 Constitution. It is widely known that the 1935 Philippine Constitution was substantially based on the
United State Constitution and the United States Bill of Rights at that time. Thus the non-bailable offense provision
most likely would have come from the Eight Ammendment to the United States Constitution which was based on
the English Bill of Rights of 1689. Nevertheless, it did not determine the distinction between bailable and non-
bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied if the
charges are sufficiently serious.

In 1789, the same year that the United States Bill of Rights was introduced, United States Congress passed
the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge's discretion
in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain
a suspect, prior to trial, was to be left to the judge.

The Judiciary Act states, "Upon all arrests in criminal cases, bail shall be admitted, except where
punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a
justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein."

As to the rationale why offenses penalized with capital punishment such as reclusion perpetua or death, it
is found on the celebrated case of Montano v. Ocampo (G.R. No. L-6352, January 29, 1953). The doctrine in this
case has been reiterated in other landmark case such as People vs Hernandez (99 Phil 515) and Enrile vs Salazar
(G.R. No. 92163, June 5, 1990), to wit:

Individual freedom is too basic, too transcendental and vital in a republican state, like
ours, to be denied upon mere general principles and abstract consideration of public
safety. Indeed, the preservation of liberty is such a major preoccupation of our political
system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of
section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3),
(4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1)
to the protection of several aspects of freedom. Thus, in line with the letter and spirit of
the fundamental law, we said in the aforementioned case of Montano vs. Ocampo

Exclusion from bail in capital offenses being an exception to the otherwise absolute
right guaranteed by the constitution, the natural tendency of the courts has been
toward a fair and liberal appreciation, rather than otherwise, of the evidence in the
determination of the degree of proof and presumption of guilt necessary to warrant a
deprivation of that right.

x x x x x x x x x

In the evaluation of the evidence the probability of flight is one other important factor
to be taken into account. The sole purpose of confining accused in jail before conviction,
it has been observed, is to secure his presence at the trial. In other words, if denial of
bail is authorized in capital cases, it is only on the theory that the proof being strong, the
Defendant would flee, if he has the opportunity, rather than face the verdict of the jury.
Hence, the exception to the fundamental right to be bailed should be applied in direct
ratio to the extent of the probability of evasion of prosecution.

Even in cases involving capital offenses, for the purpose of a bail petition, the
probability of flight is one important factor to be taken into consideration. The sole
purpose of confining an accused before conviction is to assure his presence at the trial.
If a denial of bail in capital offenses, is authorized, it is only on the theory that the proof
of guilt being strong, the defendant would flee, if he has the opportunity, rather than
face trial. Hence, exception to the fundamental right to bail should be applied in direct
ratio to the probability of evasion of prosecution.

People vs. Hernandez, G.R. Nos. L-6025-26 citing Montano vs. Ocampo
Ong See Hang vs. The Hon. Commissioner of Immigration, G.R. No. L-9700

Question No. 4 - Assuming that you are a brilliant lawyer or de campanilla and that your legal services was
solicited by Napoles, Enrile, Jinggoy and Revilla. What will be your legal, procedural and jurisprudential defenses I
order to acquit your clients case?

Considering that the above-mentioned persons have different circumstances in the alleged pork-barrel
scam/plunder charge, it would be difficult to file a single pleading for all. Hypothetically speaking however, some
common defenses viable for all would be as follows:

o Collectively, they put the blame on the implementing agencies for the pork barrel scam for
allowing the use of their pork barrel allocations to dubious non-governmental organizations.

o They do not have control over their pork barrel funds.

o They all cleared their staff of involvement in the scandal Reyes (Enriles supposed paramour),
and Jose Antonio Evangelista for Enrile; Pauline Labayen for Estrada, and Richard Cambe for

o Their signatures in the documents were all forged by the whistleblowers who should be charged

o The charge that they supposedly got kickbacks was all hearsay testimony.

Further argumentative points would be as follows:

The implementation of PDAF project is the exclusive function and responsibility of the executive
department such that the implementing agencies (IAs) and the Department of Budget and Management (DBM)
should have strictly complied with laws and rules on government expenditures to prevent possible misuse or

Therefore, IAs are responsible for ensuring that the NGOs tasked to implement the projects were
legitimate. It must be stressed that their only involvement as lawmakers, in the use of PDAF was to endorse
specific projects for local government units (LGUs).

Municipal Circuit Trial Court
Catarman-Lope de Vega



Submitted by:

Alexander F. Opena