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Arroyo's Arrest: Evidence and Philippine Discovery Practice

JURIST Columnist Edsel Tupaz of Tupaz & Associates examines the recent "rearrest" of former Philippine President Gloria Macapagal-Arroyo and argues that Arroyo's bail arrangement is not necessarily a strong indication of the strength of evidence against her...

Last July, and after eight months under hospital arrest, the Regional Trial Court of Pasay City, Philippines, released former Philippine President Gloria Macapagal-Arroyo on bail on the ground that the evidence against her was "weak." However, some distinctions are in order. Arroyo has been charged with the separate crimes of electoral sabotage and plunder. The charge of electoral sabotage is pending before the regional trial court (which is a court of general jurisdiction) and the charge of plunder is before the country's specialized anti-graft and corruption court: the Sandiganbayan. Simply put, the statutes for both crimes require different venues and operate under distinct substantive rules.

Arroyo's release on bail in July was immediately controversial, and her defense lawyers were quick to proclaim victory: if the prosecution failed to meet the evidentiary test for purposes of bail — a lesser threshold than proof beyond reasonable doubt — this indicates that the case-in-chief against Arroyo, at least with respect to the charge of electoral sabotage is, indeed, weak. But on October 4, the Sandiganbayan issued an order placing Arroyo under arrest. Her defense counsel immediately filed a motion with the Sandiganbayan to allow for hospital arrest instead of a detention facility. Although a hearing on the issue was scheduled for October 18, the prosecution withdrew its opposition to hospital arrest on October 15.

While it may be said that Arroyo was "rearrested," that statement can be misinterpreted to mean that the same judge simply changed his mind about Arroyo which isn't the case. In fact, plunder and electoral sabotage are distinct offenses which, as intimated, require different venues and courts. One case ought to have no bearing upon the other. Specifically on the count of plunder, Arroyo was charged with plundering the national treasury by diverting approximately 7.5 million USD from the funds of the Philippine Charity Sweepstakes Office. Arroyo is also facing a second plunder charge alleging that she unduly intervened in a state contract with a Chinese firm, ZTE Corp., involving the national broadband network. Whereas in the electoral sabotage case pending before the court of general jurisdiction, Arroyo is accused of conspiring with officials in Mindanao (the southern region of the Philippines) to rig the 2004 and 2007 national elections.

So much for the plunder charges. Although there is no question that these charges can be outcome determine of each other, one could also ask whether Arroyo's bail in the electoral sabotage case is, in fact, indicative of an eventual acquittal. The fact that the Philippine legal system trumps the right to bail even in life imprisonment cases may be attributed to the fact that the right to bail is constitutionally enshrined in the the Philippine Constitution. Section 13 of Article III states: "All persons, except those charged with offenses punishable by reclusion perpetua (life imprisonment) when evidence of guilt is strong, shall, before conviction, be bailable[.]" Section 13 also declares that "[t]he right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended." Thus when a trier of fact makes the kind of proportionality analysis implicated in bail hearings in the Philippines — if compared to other jurisdictions — those findings will tend to favor the accused.

In Philippine pleading and practice, bail motions typically come early and are unrelated to the eventual verdict in a given case. More importantly, Philippine lawyers and judges do have a propensity — right or wrong — to avoid pretrial discovery despite its availability, if not outright requirement, under the rules of civil and criminal procedure. This propensity to avoid modes of discovery means that the element of surprise is the true "rule," while pretrial transparency is the exception. It is not unusual for verdicts of conviction to be issued even as the accused remains at large, perhaps even brimming with confidence of an eventual acquittal. Without a legal culture favoring discovery tends towards court-enforced fishing expeditions or the gathering of evidence after trial has already commenced.

While Arroyo's defense panel may play up the point that the evidence against her in the electoral sabotage case is "weak" and failed to meet a "lower" threshold, a converse observation can be made with respects to the multiple counts of plunder. Will the former president's arrest in the plunder cases this month be indicative of her guilt? With the element of surprise as the "rule," it remains to be seen.

Edsel Tupaz is the owner of Tupaz and Associates and a professor of international and comparative law, based in Manila, Philippines. He is a graduate of Harvard Law School and Ateneo Law School.

Suggested citation: Edsel Tupaz, Arroyo's Arrest: Evidence and Philippine Discovery Practice, JURIST - Sidebar, October 16, 2012, http://jurist.org/sidebar/2012/10/edsel-tupaz-arroyo-evidence.php.

This article was prepared for publication by the staff of JURIST's professional commentary service. Please direct any questions or comments to them at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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