THE

Supreme

Court

Minute

Resolution of the First Division reads in part:

GR 254838 – “The petition is meritorious. Petitioner is entitled to the writ of habeas corpus.

Her confinement, though in accordance with a court order of the Sandiganbayan, has become oppressive thus infringing upon her right to liberty. xxx

“Otherwise stated, when the custody of a person becomes illegal due to the grave abuse of his or her constitutional rights, the person deprived of liberty may avail of the writ of habeas corpus.”

First, an important distinction. The writ of habeas corpus is the order of the court (writ) to any person holding another in confinement to enable the court to determine the legality of detention. The privilege of the writ is the relief that the court grants when it orders the release of the detainee after finding his or her detention to be irregular. Notice that the Constitution does not grant the president the power to suspend the writ, but to suspend the privilege of the writ.

Attorney Gigi Reyes argues that her continued detention violated her constitutional right to liberty, insofar as her detention has dragged on for such a long time, and there is no telling how long her trial will last. In other words, she was being held in detention and denied her liberty absent due process of law — as trial is still ongoing. The Supreme Court ruled that habeas corpus was proper under the circumstances. Even if already charged, detention had become unconstitutional by reason of the length of the detention without conviction.

Ted Te is right. This rule should be availed of by former senator Leila de Lima and others who are languishing in jail and have been there for a prolonged period — resulting in an unconstitutional deprivation of their liberty.

This is an exciting development for students of the philosophy of law because it makes clear the priority that the Supreme Court — and the Philippine legal system — places on personal liberty over the need to hold someone in detention to answer for a serious offense. It is not so much the confection of a new writ. It is reading more broadly — and more justly — the basis for the grant of the privilege of the writ!

I am glad about this development. Repeatedly, I have maintained that it is iniquitous to deprive a person of liberties and to submit him to the torment of detention — separated from his family, the comforts of his home, and his work and livelihood — merely on the basis of “probable cause,” because that is all it takes for an Information to be filed and for a warrant of arrest to issue.

I also repeat a point raised by my father, Justice Aquino, in his Metrobank Lecture for the Philippine Judicial Academy: While it is true that the prosecutor must have at least probable cause to file an Information in court against an accused, it is wrong for him to proceed to file the Information if he knows that he does not have the evidence sufficient to convict the accused. So the prosecutor exercises his discretion in two stages. First: Do I have probable cause against the respondent? If there is none, then drop the case. If there is, proceed to the next question. Second: Do I have the evidence sufficient to secure the conviction of an accused? If there is none, do not file the Information. If you have the evidence, proceed to file the Information.

Really, there is no such thing as an “unbailable” offense. Rather, there are crimes for which bail is not available as a matter of right. That is to say, the application for bail is addressed to the discretion of the judge, and unfortunately, many judges are inclined to exercise discretion against the accused — a reversal of what should in fact be discretion in favor of the liberty of the accused.

There was no bail demanded in Reyes’ case because she did not apply for bail but for the writ of habeas corpus.