MANILA, Philippines – Is Senator Juan Ponce Enrile truly entitled to hospital arrest?

Critics have decried preparations at the Camp Crame General Hospital for Enrile, following announcements from the senator’s camp that if arrested, he would ask to be detained in a hospital, considering his age and declining medical condition.

President Benigno Aquino III’s statements that he would support such a request, did not help ease discomfort either.

But is the request of the 90-year-old Enrile fair?

Enrile, who is among 3 senators charged with plunder for allegedly earning kickbacks from the illegal diversion of their development funds, is awaiting the decision of the anti-graft court Sandiganbayan on whether the charges against him have probable cause.

His other two allies in the opposition – senators Ramon Revilla Jr and Jinggoy Estrada – are already detained in Camp Crame. The 3 are accused of channeling their Priority Assistance Development Fund (PDAF) to bogus non-governmental organizations (NGOs) linked to alleged scam mastermind Janet Lim Napoles, in exchange for hefty kickbacks.

Aside from hospital arrest, Enrile has asked the court to allow him to post bail, citing again his advanced age and poor health. He is also seeking the dismissal of the charges against him due to weak evidence.

But age and poor health are not enough ground to grant bail, according to the law. Age is also not enough reason to allow him hospital arrest.

Only for serious illness

According to a veteran lawyer, hospital arrest is only possible if the accused is “suffering from serious illness, as in the case of former president Gloria Macapagal Arroyo.” Arroyo, who is facing plunder charges in connection with the alleged diversion of Philippine Charity Sweepstakes Office funds, is now under hospital arrest at the Veteran’s Memorial Medical Center in Quezon City.

But Enrile himself has said he has no health issues, admitting in fact, during one television interview that he had undergone stem cell treatment. This is a far cry from his lawyers’ statements regarding his deteriorating health.

The law has no special considerations for age either – unless a person is already convicted.

Under Article 13 of the Revised Penal Code, one of the circumstances that may mitigate criminal liability is when “the offender is under 18 years of age or over 70 years.”

As such, the corresponding jail penalty may be suspended based on the discretion of the court or waived by virtue of executive clemency by the President, according to a Sandiganbayan justice.

The Supreme Court, however, clarified in a recent ruling that old age is not applicable as a mitigating circumstance if the offender was not yet 70 years of age at the time the crime was committed.

Enrile was over 70 when he supposedly committed the crime, according to whistleblowers.

Thus, Enrile may cite his advanced age as a mitigating factor in case of conviction, and his jail penalty could be waived by the court – in this case, the Sandiganbayan.

But while the case is pending, Enrile could not cite old age to avoid spending time in jail. So far, there is no jurisprudence that could favor him, according to the veteran lawyer.

Age not a reason

The same is true for bail.

Neither health nor age are grounds to escape detention, said the veteran lawyer. “I have not encountered a case where old age was grounds for granting bail in a non-bailable offense. The only grounds for granting bail in a non-bailable offense is if the evidence of guilt is not strong,” he told Rappler.

Constitutionalist and former SC Justice Vicente Mendoza stressed that plunder, being a capital offense, is generally non-bailable. But bail can be granted on two grounds:

• If the evidence is weak
• If life will be endangered as a result of incarceration

“[Old] age alone is not reason to be granted bail. As to health, that is a question of fact and you must show proof that your life is endangered with incarceration,” Mendoza said.

For example, a mere cardiac problem is not sufficient basis to seek temporary liberty, Mendoza said. “This must be supported by doctor’s recommendations and findings by medical evidence.”

Someone suffering from tuberculosis may have better chances of staying out of jail if the accused can show that being in detention will further lead to the deterioration of one’s health, Mendoza said.

The World Health Organization observed that detention or prison cells serve as “reservoir for TB, pumping the disease into the civilian community, through staff, visitors and inadequately treated former inmates. TB does not respect prison walls.”

But TB is not among Enrile’s ailments. And it is unlikely that he is going to spend time in an ordinary jail.

‘Consideration’

However, Enrile may just get away with hospital arrest, despite his previous insistence he is healthy.

Levito Baligod, counsel for some former employees of Napoles who turned whistleblowers, told Rappler they would not oppose Enrile’s request. The point of detention is to restrict the movement of the accused, which a hospital arrest can achieve, he said.

It is also meant to ensure the respondent appears in court, he said, and Enrile is not a flight risk either.

The President also said the court should consider the age and medical condition of Enrile.

“I’m sure the courts will be cognizant of fulfilling the obligations,” Aquino said, but added that “the advanced age of Senator Enrile” should also be a factor. Aquino cited the Bill of Rights, which prohibits inhuman or cruel punishment.

It will, however, be up to the court to decide if Enrile deserves hospital arrest. This will depend on his medical check-up that will be conducted by law enforcers if and when a warrant of arrest is released against him.

The prosecution also can request whether to commit detainees in certain places, which the court will have to decide on. – Rappler.com