Arroyo's Release on Bail: A Bad Omen for the Philippines

Can a leopard (the Philippines) really change its spots? If so, can it be achieved meaningfully in such a short period of time? It seems the same old shenanigans are occurring, even while President Aquino is in power.
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After nearly eight months under hospital arrest, a trial court judge this week ordered former Philippine President Gloria Macapagal-Arroyo released on bail, on the grounds that the evidence against her was 'weak.' Having been charged with electoral sabotage and plundering of the national treasury, Arroyo and her husband were arrested in November of last year. The former First Gentleman appeared headed toward a guilty verdict -- until her release.

Given this development, and its rather curious timing, we cannot help but wonder whether the judge's bail order does in fact indicate that the case-in-chief against her is weak, or whether this is evidence that the judicial system in the Philippines remains tainted. Did Arroyo really deserve bail after all this time, or is this yet another instance of a corrupt judge intervening on behalf of a high profile, powerful, and wealthy defendant? Beyond possible legal or evidentiary merit, the granting of Arroyo's motion for bail raises serious question about whether President Aquino's fight against corruption is swimming against an inexorable tide.

The cases pending before the judge who ordered Arroyo's bail were filed by the Commission on Elections, which accused Arroyo of conspiring with officials in Mindanao of rigging the 2004 and 2007 national elections. In addition, a case accusing Arroyo of plunder is now pending with the Sandiganbayan, the nation's main anti-graft and corruption court -- a wholly different venue from the ordinary trial courts.

Framed as a strictly legal question, bail motions typically come early on in a case and are unrelated to the eventual verdict. Given the propensity of local lawyers and judges to avoid all forms of pre-trial discovery, the Philippine legal system is weighted -- rightly or wrongly -- towards court-enforced fishing expeditions, or the gathering of evidence during the trial and as the trial unfolds.

This means that the element of surprise is the rule; pre-trial transparency is the exception. Thus it is not uncommon for verdicts of conviction to be issued even as the accused remains at large. In fact, Philippine courts -- including its Supreme Court -- are consistent in ruling that because the evidentiary test for purposes of bail is distinct from the test of proof beyond reasonable doubt, any determination in bail hearings and bail motions do not bear upon the substance of the case, or the case-in-chief. On the other hand, one can argue that because the prosecution failed to meet a lower threshold of evidence this early, the case against Arroyo may indeed be 'weak.'

That the Philippine legal system (or system failure, depending on one's vantage point) trumps the right to bail even in life imprisonment cases (capital punishment is banned in Philippine statute books) may be attributed in large part to the fact that the right to bail is constitutionally entrenched in the bill of rights. Section 13 of the Philippine Bill of Rights 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 even declares that "[t]he right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended). This makes any judicial balancing act implicated in bail hearings (compared with other states and jurisdictions) systemically skewed in favor of the accused in all cases.

Despite the fact that Arroyo and her lawyers did win the bail motion, and while the judge's order granting her bail effectively ended her detention pending trial (at least for now), the hold departure order issued by the justice secretary remains effective. This means that Arroyo and her husband, while out on bail, cannot leave the country. In fact, Philippine law assumes that persons admitted to bail do not necessarily have the right to leave the country, and, if the prosecution can make a successful argument for a "change in circumstances" indicating a flight risk, the trial judge can legitimately change his mind.

Arroyo was, and remains, a flight risk. Her much publicized attempts to flee the Philippines for medical treatment for a previously undisclosed 'ailment' last year are all the evidence any judge should need to indicate as much. The hold departure orders relate to the plunder cases which are under the control of the Ombudsman, and not the electoral sabotage cases where Arroyo is on bail.

On strictly on legal terms, therefore, it is too early to tell whether Arroyo deserves an acquittal. But in a country whose judicial system allows for the element of surprise as the rule, and pre-trial transparency and discovery as the exception, the sanctity of the greater "rule of law" issue is questionable. Institutionally, the state's witness protection program remains weak, and the incidence of extra-legal killings and enforced disappearances remain high.

In the ongoing Maguindanao massacre cases, which involve the murder of 57 people (31 of whom were journalists) in 2009, a number of witnesses for the prosecution have been, in similar vein, extra-legally murdered, or have disappeared. Ironically, but not unexpectedly, the Maguindanao massacre -- the worst politically driven mass murder in recent times -- is tied to the electoral sabotage case against Arroyo, who is accused of conspiring with Maguindanao high officials in the 2007 elections.

Several questions arise from these developments. First, whether and to what degree, Arroyo's bail can be considered an outcome determinative of the eventual verdict in the electoral sabotage case. Second, what impact, if any, the fact that bail was granted in the electoral sabotage case could impact the government's case against Arroyo on the plunder issue. Third, to what extent public perception of the government's evidence in both cases will ultimately stand, or be torn apart by a combination of genuine evidentiary weakness, a corrupt judiciary, or both.

That Arroyo was granted bail after eight months in detention even though she remains a flight risk, and so close to a verdict on her husband's complicity in her alleged crimes, does not bode well for President Aquino's efforts to clean up the Philippine judiciary. After seven consecutive sovereign upgrades, and a string of favorable economic data pointing to the Philippines as a rising 'Asian Tiger,' Arroyo's release should indeed be seen as a wake-up call for sovereign analysts and prospective investors alike.

Can a leopard (the Philippines) really change its spots? If so, can it be achieved meaningfully in such a short period of time? It seems the same old shenanigans are occurring, even while President Aquino is in power. We wonder what will happen when he leaves the scene, and whether the country will quickly settle into its unfortunate 'business as usual' ways.

Edsel Tupaz was a private prosecutor of the House prosecution panel in the recently concluded impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School, owner of Tupaz and Associates, and a professor of international and comparative law, based in Manila.

Daniel Wagner is CEO of Country Risk Solutions, a cross-border risk management consultancy based in Connecticut (USA), and author of the new book Managing Country Risk (

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