Baby River, Enrile's release and the long wait on political prisoners' plea
MANILA, Philippines — For five months since they first knocked on the doors of the Supreme Court, Marites Asis, mother of a jailed activist, went to Padre Faura in Manila nearly every Tuesday.
She and the other petitioners, waiting outside while the court met en banc, hoped for action on their petition to allow the temporary release of their loved ones, including her daughter Reina Mae Nasino, who was pregnant at the time.
It took the justices five months to release their ruling, only to direct the issues to the trial courts and tell them to “conduct the necessary proceedings and resolve the incidents immediately,” which political prisoner support and advocacy group Kapatid said only meant an even longer wait for the families.
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The SC, on September 10, also closed its doors on the petition that sickly and at-risk to COVID-19 detainees be allowed temporary release on bail and recognizance. Its Public Information Office said: “The SC also considered the proceedings before it closed and terminated.”
7 pages, 8 separate opinions
The main decision, later explained by the SC PIO was per curiam or a unanimous agreement among justices, only consisted of seven pages. But eight justices wrote and filed their own opinions on the case, citing the need to expound on the issues of the case.
At least two justices took note of the case of Nasino, who was pregnant during the filing of the petition and gave birth during the petitioners’ months-long wait. Associate Justice Amy Lazaro-Javier, in her separate opinion, said she would like the court to offer relief to Nasino’s baby, but this was not included in the main ruling on the case.
Justices also noted that the Supreme Court and the executive branch addressed the situation of Philippine jails, when the COVID-19 pandemic set in the country through its circulars order the release of inmates.
Ultimately, the justices were unanimous in referring their petition, treated as applications for bail or recognizance, to lower courts that will “resolve these incidents with utmost dispatch.”
RELATED: KAPATID: SC 'inaction' on plea for temporary release puts sickly inmates at more risk
Baby River’s rights and a potential 'writ of kalayaan'
Associate Justice Edgardo Delos Santos said they could not “automatically and unfairly assume” that the Bureau of Corrections is ill-equipped and inept in handling pregnant inmates.
“Besides, it is premature to order any protective measure for safe delivery of pregnant inmates who have yet to give birth to their children,” he added.
Justice Lazaro-Javier meanwhile said the baby was entitled to separate protection apart from her mother. “I believe that we have a role to play in protecting the baby from adverse consequences that are not of the baby’s own doing. After all, her mother is in this state of panic because the lower court has issued processes for her preventive detention,” she said.
Lazaro-Javier said she would like the court to “give relief to Nasino’s baby,” noting that this is the result “of the reality of the greater risks facing petitioner Nasino’s baby coming from facts about this pandemic.”
But she did not specify what relief should be given to the baby. This was also not included in the main ruling of the court.
Nasino gave birth to River on July 1 at the Fabella Memorial Hospital. Her baby, whom she carried in her womb while in prison, was born underweight.
Nasino and her lawyers fought at the lower courts to be with her newborn child, but the Manila court ruled to separate them.
Associate Justice Marvic Leonen meanwhile proposed a "writ of kalayaan" that would be geared toward addressing jail congestion.
Leonen said: “It shall be issued when all the requirements to establish cruel, inhuman, and degrading punishment are present” and “provide an order of precedence to bring the occupation of jails to a more humane level.”
The ruling on Enrile
The petitioners raised Enrile vs Sandiganbayan in making their case. They noted that the SC explained: “[T]he Philippine authorities are under obligation to make available to every person under detention such remedies, which safeguard their fundamental right to liberty.”
They also stressed that the petitioners are not flight risks—a reason cited by the SC in the release of former Sen. Juan Ponce Enrile’s release—as they are old, frail, sickly and have mo capacity to flee. They added: “While they are charged with common crimes, the arrest, detention and charges against petitioners are due to their political beliefs. They are not hardened criminals.”
But some justices said they cannot cite the Enrile case in their petition.
Chief Justice Diosdado Peralta said Enrile was “not shown to be a danger to the community and his risk of flight was nil—a conclusion that was impelled not only by his social and political standing, but also his voluntary surrender to authorities.”
Leonen, who dissented in the Enrile case, called the ruling a “stray decision that cannot be a binding precedent.”
Associate Justice Alfredo Bejamin Caguioa meanwhile said the Enrile ruling “skirted the minimum requirements under the Constitution regarding bail.”
“A reading of the ruling in Enrile shows that there is no discernible standard for courts to decide involving discretionary bail on the basis of humanitarian considerations. It should not be used as the benchmark in deciding cases involving the question on whether bail may be allowed,” Caguioa added.
But Lazaro-Javier pointed out that petitioners are correct in invoking Enrile, noting that it is a legally binding decision and must be applied to all.
“To conclude otherwise is to institutionalize the forbidden thought that some people are better treated in and under the law than others upon dubious grounds,” she said.
Lazaro-Javier said the petitioners may still not be released on bail or recognizance unless they are able to muster the two-step in Enrile: A detainee will not be a flight risk or danger to community, and there exist special, humanitarian and compelling circumstances.
Delos Santos’ 92-page opinion
Justice Delos Santos, who was reportedly the member-in-charge on the case, penned a 92-page opinion that was discussed and refuted by other justices in their own Opinions filed.
It is unclear how Delos Santos’ writing became a separate opinion and not the main decision on the case.
Delos Santos voted to deny the petition for lack of merit and lack of jurisdiction. In his extensive separate opinion, he raised that the Nelson Mandela Rules or the United Nations Standards Minimum Rules for the Treatment of Prisoners cannot be enforced in the Philippines.
He opined a “realistic assessment” of the Philippine correctional system will show that our government’s financial position cannot cope with the standards laid down by the Nelson Mandela Rules.
But Leonen disagreed and said that the Court can compel the Bureau of Corrections to comply with the law requiring the safekeeping of inmates that complies with United Nations standards.
Delos Santos also took note that the petitioners are charged with heinous crimes and are alleged to be members of the Communist Party of the Philippines-New Peoples’ Army and the National Democratic Front of the Philippines—a point raised by Solicitor General Jose Calida in his comment.
Citing this, Delos Santos said there is wisdom in their continued detention. “As earlier discussed, the government cannot afford to gamble its chances and resources by allowing the petitioners who are allegedly key members of the CPP-NPA-NDF to roam free while the COVID-19 pandemic remains an imminent and grave threat,” he said.
But Leonen said he cannot find the “reasonable link” between the continued detention of the petitioners and the State’s objective of suppressing the pandemic.
He also cautioned on making “premature” pronouncements on the petitioners’ pending cases “based on unverified information.”
Lazaro-Javier also pointed out that these are merely allegations against the petitioners and the issue at hand is their “inability to provide concrete circumstances and bail plan.”
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