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Why Enrile's bail efforts were to no avail

In the middle of June, JPE sought to jumpstart the process by filing, as a part of an Omnibus motion to dismiss, even before he was arrested, an AD CAUTELAM MOTION FOR BAIL. (Caps Enrile’s)

“AD CAUTELAM” is Latin for “with caution.” It is legal gobbledygook that is often used tongue-in-cheek by litigation practitioners to insert something into the record of the case that, at the moment introduced, appears innocuous but could later on be useful to have in the record – should the case be raised on appeal.

In JPE’s motion, his caution seems to be more of insistence. He wanted bail to be granted, “BEFORE, PENDING and EVEN AFTER THE DETERMINATION OF STRONG EVIDENCE OF GUILT” (Caps in JPE’s motion). Thus, though usually the phrase AD CAUTELAM (with the word “abundancia” inserted to rub it in) seeks to project an aura of respect for the court, JPE’s use appears more of a subtle warning to the Sandiganbayan that denial of bail, at this time, may be reversed on appeal, thereby causing the collateral damage of exposing the ineptness of the hearing justices.

JPE argued that before and pending the determination that the evidence against him is strong, he enjoys the presumption of innocence. Hence, bail at that point was a matter of right. But even after the prosecution shall have made its case that the evidence is strong, he, nevertheless may still be granted bail because, among other reasons, he was not a flight risk, “already 90 years old, with poor and frail physical condition requiring constant medical attention,” and he had always been well-behaved, “has never violated the conditions of previous bails granted to him.”

Not content with the Ad Cautelam motion, JPE filed a follow up motion to fix bail dated July 7, 2014. He reiterated his previous arguments and pointed out that, considering the mitigating circumstances of his being “over 70 years old” and his voluntary surrender, the penalty likely to be imposed on him is only reclusion temporal, (i.e., 20 years max or a shade lower than “perpetua”) and therefore he is entitled to the application of the general rule.

Bail denied

The arguments are ingenious but they failed to convince the Third Division where his case was eventually raffled to. The Third Division pointed out that the determination of the strength or weakness of the evidence of the prosecution has not yet been made by the court simply because it had not yet been given an opportunity to do so.

The court said, “To be sure, no such determination (of whether the evidence is strong or weak) 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.”

Why had Enrile refrained from frontally confronting the issue of the strength or weakness of the prosecution’s evidence in an honest-to-goodness bail hearing? The reason, I submit, is embedded in Section 8 of Rule 114 of the Rules of Court.

Section 8 states, in part, that “the evidence presented during the bail hearing shall be considered automatically reproduced at the trial ....” That will require abbreviating the trial process and that is not something the defense ordinarily wants at an early stage of the game.

In any case, after more pleadings and counterpleadings ensued, the Third Division, according to the media, on August 8, denied bail with finality. And the mills of the gods, albeit grinding slowly, continue to move on grinding exceedingly fine. –

 Reynaldo "Gerry" Geronimo is a partner at the Romulo, Mabanta, Buenaventura Sayoc & De los Angeles law office. He is known as The Trust Guru and maintains a website,