Rule 114 - Inigo

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Rule 114 Bail

Rule 114

BAIL Q: Define Bail. A: Under Section 1: SECTION 1. Bail defined. – person in custody of the law, appearance before any court specified. Bail may be given cash deposit, or recognizance.

Bail is the security given for the release of a furnished by him or a bondsman, to guarantee his as required under the conditions hereinafter in the form of corporate surety, property bond, (1a)

Ano ba yang bail? Pyansa! As a general rule, once a case is filed in court and there is probable cause, the judge will issue a warrant. So sa presohan ka. Paano yan because you are still presumed innocent? Ang tawag diyan is preventive detention. That is why if you are convicted, that is already credited as advanced service under Article 29 of the Revised Penal Code. But that will be too tedious. You are already detained, and you are still presumed innocent. The remedy is you apply for bail – you post bail – because bail is, as a rule, a constitutional right. Q: And what is the primary purpose of bail? A: American jurisprudence says the purpose of bail is (a) to combine the administration of criminal justice with the convenience of a person accused but not yet proven guilty; (b) to relieve the accused of imprisonment, and the State of burden of keeping him, pending trial. (6 Am. Jur. 61) Can you imagine without the provision on bail? There will be thousands of people who are already in jail and all at the expense of the government. So, we have to combine these two – the convenience of the accused and the convenience of the State. Now, let us go to some political law basic questions: When there is invasion or rebellion, the Constitution authorizes the Commander-In-Chief to suspend the privilege of the writ of habeas corpus. You can be arrested on suspicion that you are engaged in rebellion even if there is no warrant and there is no case. Q: Are you entitled to bail? Does the suspension of the privilege of the writ of habeas corpus also carry with it the suspension of the right to bail? A: That issue bugged the Supreme Court several times prior to the 1987 Constitution where the SC gave conflicting answers. In the case of NAVA VS. GATMAITAN, (90 Phil. 172) the SC said, Yes, he is entitled to bail once the case has been filed in court. At least 5 out of 9 justices said that. Very close fight! Once the case is filed in court, the right to bail can be availed of. So, the right to bail is different from the suspension of the privilege of the writ of habeas corpus. But when that issue came out during the martial law regime, the SC gave a different answer eh. So, that issue came out again in the case of BUSCAYNO VS. MILITARY COMMISSION (109 SCRA 273), GARCIA-PADILLA VS. ENRILE (121 SCRA 472). Is there a right to bail when the privilege of the writ of Habeas Corpus is suspended? Ang sabi ng Supreme Court, NO! because the government’s campaign to suppress rebellion might be ineffective. Captured rebels, would no doubt rejoin their comrades in the field and jeopardize the success of the government efforts to end the rebellion. That sounds logical. Just imagine, why are you suspending the privilege of the writ? To arrest suspected rebels. Pag naaresto, and then entitled to bail, balik na naman sila sa mga kasama nila! Anong klaseng campaign ito? That is the reasoning in the case of Buscayno and Ponce Enrile. I think that debate is already moot and academic. There is now a direct provision in the Constitution, Article 3 Section 13 which says that the right to bail exists and is not suspended by the suspension of the privilege. Talagang settled na.

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Another interesting case on bail. These are the cases that cropped up after the 1989 coup d’ etat attempt against Cory Aquino because some of the RAM suspects were detained. Many of them were detained because of court martial charges. They are charged for violating military law pero nakakulong sila. Some of them applied for bail. Q: Are the same military officers facing charges before a court martial entitled to bail? A: In COMMENDADOR VS. DE VILLA (200 SCRA 80) the SC said: NO, “the right to bail has traditionally not been recognized and it is not available in the military as an exception to the general rule as embodied in the Bill of Rights.” There is no such thing as bail in the military. So, that’s an exception to the general rule. “The right to speedy trial is given more emphasis in the military where the right to bail does not exist.” The dissenter in the case of Commendador is Abraham Sarmiento. Diyan mo makikita pagiging humanitarian lawyer niya. During the time of Marcos he hates the military [gi-lubot siguro siya]. But he was the one who said that they are entitled to bail [nalamian siguro siya] because sabi niya, “according to the majority the right to bail has traditionally hot been recognized in the military. I’ve been looking in the bill of rights and I cannot find that exception. Where did the majority get that? You mean to tell me the military before are not citizens of the Philippines anymore?” According to Isagani Cruz who is the ponente in that case, “They are not entitled to bail as a matter of tradition in the military!” Sarmiento: “No! We are a government of laws, not a government of traditions.” Mag-isa lang siya, wala siyang nagawa. PROBLEM: Tato is charged with a capital crime. So, no bail. Ayaw mag-surrender. Gusto niya bail muna bago surrender. (Anyway, even if you are charged with a capital crime, you can file a petition for bail.) But he got a lawyer and the lawyer filed a petition for bail in his behalf. Q: In this case, can Tato apply for bail? A: NO. The SC said, We cannot entertain the petition for bail because Tato is not in custody! Simple: what is the definition of bail? “Security given for the release of a person in custody of law.” You are even at large then you’re asking for bail? Surrender first bago ka makahingi ng bail. (Marigbasa vs. Luna, 98 Phil. 466; Feliciano vs. Pasicolan, July 31, 1961) Q: What do you mean by “in custody of law”? A: “In custody of law” may mean 1. physical or actual custody; or 2. constructive custody. (Panderanga vs. CA, 247 SCRA 41) PANDERANGA vs. COURT OF APPEALS 247 SCRA 417 FACTS: This case originated in CDO. The accused was charged of murder – non-bailable. So, ayaw niyang magpahuli. Pero actually, he wants to face the case pero dapat lang may bail. Pero problema niya how can he file a petition for bail when you are not even in custody? (In custody, you have to surrender or you must be arrested. Kaya nga ayaw niya yun eh. As much as possible, pagsurrender niya, meron ng bail. Then what happened?) He entered the hospital, may sakit daw and then his lawyer filed a petition for bail before the RTC, “We are appearing for the accused for his petition for bail. We would like to manifest that he is right now in the hospital. Will you please consider him already in the custody of the court?” Sabi ng court, “ [Sure!] OK, let’s proceed.” ISSUE: Is the accused already in custody? Can the court entertain his petition for bail even if he was not arrested, and the lawyer said he was in the hospital and the court never bothered to ask a policeman to go there, check, verify, bantayan mo yung hospital until he gets well? HELD: YES, he is already in the CONSTRUCTIVE custody of the law. “It may

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Rule 114 Bail

be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience thereof, be considered as being constructively and legally under custody. Thus, in the likewise peculiar circumstances which attended the filing of his bail application with the trial court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. The undeniable fact is that Panderanga was by then in the constructive custody of the law. Q: What are the types of bail? A: There are four (4) types of bail under Section 1: 1. Corporate surety; 2. Property bond ; 3. Cash deposit; and 4. Recognizance. Q: What are the conditions of a bail? A: Section 2: SEC. 2. Conditions of the bail; requirements. – All kinds of bail are subject to the following conditions: (a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it; (b) The accused shall appear before the proper court whenever required by the court of these Rules; (c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and (d) The bondsman shall surrender the accused to the court for execution of the final judgment. The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail. (2a)

Q: So, for example in the MTC, you are arrested, natalo ka, you will appeal. How about pag-appeal mo sa RTC, what will happen to your bail? A: Tuloy-tuloy pa rin yan because under paragraph [a], your bail is effective up to the RTC. Q: Another example: na-convict ka sa RTC and you want to go to the CA, are you still entitled to bail? A: The answer is MAYBE. This is one instance where bail is discretionary. Q: But assuming that the court will say, “OK, you are entitled to bail on appeal.” What happens now to your bail? A: The GENERAL RULE is you get another bail bond because your bail is only up to the level of the RTC. This is back to the 1964 rules. In the 85 Rules, iba naman – the bail is tuloy-tuloy up to the CA. Now, RTC level lang. You have to ask for another bail bond if you want to go further to the CA. So, it’s back to the 64 rules ‘no? Q: Paragraph [b] – you will appear before the proper court whenever required by the court or these rules. Normally, when is a person required by the court to appear? A: Generally, ARRAIGNMENT or PROMULGATION lalo na pag convicted ka. But there are others for example, let’s read Rule 115 Section 1 [c]: “(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. x x x x x x”

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That is one instance where the court may require his presence. His presence there is not a privilege but an obligation. Q: Now supposed you failed to appear in court without justification. Like for example, you escaped, you jumped bail and disappeared? What will happen to the case? A: Tuloy pa rin according to paragraph [c] because that would be a waiver of your right. Q: Anong tawag niyan? A: TRIAL IN ABSENTIA pursuant to Section 14, 2nd paragraph, Article 2 of the Constitution. Q: A bail bond required the bondsmen to pay the fine of the accused, in addition to the usual condition. Is this additional condition valid? A: NO. The additional condition is void because it made the obligation of the bondsmen more onerous, in violation of the constitutional provision that no excessive bail shall be required may not impose additional conditions because it might prevent or render it impossible for the accused to secure his liberty during the trial. (Bandoy vs. CFI of Laguna, 14 Phil. 620) Q: A condition in a bail bond states that the sureties do not undertake to deliver the person of the accused if the reading of the sentence is postponed to a later date, nor do they consent to such extension. Is this condition valid? A: YES, the condition is valid, because it is not contrary to law or public policy, and, besides, it lightens the obligation of the bondsmen, which is allowable. Conditions restricting liability on the bond when accepted by the court and not contrary to public policy are valid. (People vs. Wong Pun, 48 Phil. 713) SEC. 3. No release or transfer except on court order or bail. – No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. (3a)

Now, we go to these important issues on bail: 1. When bail is a matter of right; 2. When bail is discretionary; 3. When bail is not available. As a general rule, bail is a matter of right. That is a constitutional right. And Section 4 tells us what are the instances when bail is a matter of right.

BAIL AS A MATTER OF RIGHT Q: When is bail a matter of right? A: Section 4: SEC. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a)before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (4a)

Q: So you are charged in the MTC; no conviction yet. So you are still an innocent. Are you entitled to bail? A: Yes, as a matter of right. Q: Suppose you have been convicted already, found guilty by the MTC, maybe sentenced to 2 years imprisonment but you would like to appeal to the RTC. While your appeal is going on, can you still post bail? A: YES. Whether it is before or after conviction by the MTC, bail is a matter of right.

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Q: But suppose you are charged in the RTC, for example homicide punishable by reclusion temporal, are you entitled to bail? A: YES, it is also a matter of right. For as long as the prescribed penalty is not life imprisonment, perpetua or death, it is a matter of right. So, up to reclusion temporal it is a matter of right. So based on the provision of law, let us try to outline – Q: When is bail a matter of right: A: Bail is a matter of right – 1. Before conviction by the MTC, MTC, or MCTC (Section 4 [a]); 2. After conviction by the MTC (Section 4 [a]); 3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment (Section 4 [b]) 4. Before conviction by the RTC of an offense punishable by death reclusion or life imprisonment when evidence of guilt is not strong. (People vs. Donato, infra) Under the law, when a person charged in court for example murder, non-bailable man yan ba. What is the procedure under Section 8 if he wants to post bail? He must file an application or petition for bail. And that is when the prosecution will have to present evidence immediately to prove that the evidence of guilt is strong. Q: Suppose after hearing for the petition for bail, the court is convinced that the evidence of guilt is not strong and the court said so, what happens now to bail? A: Bail becomes a matter of right. (People vs. Donato, 198 SCRA 130) PEOPLE vs. DONATO 198 SCRA 130 HELD: “If the offense charged is punishable by death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right.”

BAIL AS A MATTER OF DISCRETION Q: When is bail discretionary? Meaning, the court may grant bail or may not grant bail. A: Section 5: SEC. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. x x x x

Q: Supposed you are charged with homicide. The maximum penalty there is temporal. You are convicted. The court found you guilty of homicide. It sentenced you to 20 years imprisonment and you would like to appeal. Can you ask for bail? A: YES. Q: What will the court do? A: The court may or may not grant. Yan ang discretion. Now, the second sentence is new:

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The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. (Section 5, first paragraph, second sentence)

This is a reversal of a ruling in the case of OMOSA vs. COURT OF APPEALS 266 SCRA 281, January 16, 1997 FACTS: The court convicted the accused for homicide. So temporal. The accused said: “Your honor, we intend to appeal this case but may we be asked to post bail while the appeal is going on. The court said, “Granted! [discretionary man!]. We will fix your bail at P50,000.” Two days before, the accused filed a notice of appeal. After filing the notice of appeal, he applied for bail which was approved by the court. ISSUE: Can the court approve the bail? HELD: NO, because when the accused filed his notice of appeal, from that very moment the court has lost jurisdiction over the case. Dapat, inuna muna yung approval of bail bago mag-file ng notice of appeal. When the court fixed the bail, he has must not yet filed his notice of appeal, so the court has the power to fix the bail. The trouble is he immediately filed a notice of appeal bago niya ging-post ang bail. So the court has no more jurisdiction to approve the bail. It should have been approved by the Court of Appeals. That is the ruling in the Omosa. Obviously, the SC wanted to change it. The application for bail may still be filed and acted upon by the trial court despite the filing of a notice – that is a modification of the Omosa ruling – Puwede, provided it has not transmitted the original record. Based on the Omosa ruling, once the notice of appeal is filed, the trial court has no more jurisdiction to act on the application for bail. But NOW under the NEW RULES, puwede pa even if there is already a notice of appeal on the condition that the records are still with the RTC. If the records are already in the appellate court, you better apply for bail before the Court of Appeals. Now the next sentence However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. (Section 5, first paragraph, last sentence)

This is also a recognition and modification of the ruling of Omosa vs. CA, supra. In the case of Omosa, the accused was charged with murder – non-bailable. But after the trial the court convicted him only for homicide, a lesser offense. And homicide is bailable – discretionary in the court. If he was convicted for murder, wala talagang pagasa. But he was convicted for homicide. So he applied for bail. And the court granted the bail. And the SC said the trial court should not grant bail because the accused is appealing. For all you know on appeal, the appellate court may reinstate the original charge for murder because when you appeal, the whole case is open for review. So, because of the possibility that the penalty of murder would be imposed, then there should be no bail. That was the ruling of Omosa vs. CA. Now, of course it is now modified in the sense that, bail could be granted in that situation because he was charged with a non-bailable offense but found guilty of bailable offense. However, if there is any court which should grant the bail, it should be the CA and not the trial court. So these are new provisions which were somehow taken from the ruling in Omosa which is also now modified. That is the history of that provision. Alright. Now let us go to the second paragraph:

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Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. (Section 5)

That is more or less an exception to Section 2[a] that we already discussed. When you are charged in the RTC and you post bail, the bail is good up to when? The bail is only valid in the RTC. If you want to appeal, and the court grants bail on appeal, you have to post another bail. But this provision grants the court the authority to say, “Alright, your bail which you posted here will continue.” Nasa court yan kung gustong ipatuloy. Puwede rin yun. Ok. We will continue, subject to the consent of the bondsman. That is now the condition. The bondsman may say, “Delikado na ito, baka ma-convict na ito. Mamaya baka lumayas na ito at tumakbo, patay na ako. Ako ang magbabayad.” Alright, let us go now to the next sentence: If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (5a)

Alright. Let us go back to the basic: What is the jurisdiction of the RTC? The penalty is 6 years and 1 day up to death. If the penalty is prision mayor to reclusion temporal [6 yrs and 1 day to 20 years] yan, sa phrase na yan, bail could be granted on appeal but it is discretionary. However, even if the bail is granted the prosecution tells the court, “Judge, this guy was found guilty of homicide and you grant bail. Iba pala ito eh because he is a recidivist, or etc or any of the conditions mentioned in [a] – [e],” the court will now cancel the bail. So bail is discretionary provided it will not fall under [a], [b], [c], [d], or [e]. You are a recidivist; you are habitual delinquent; you have previously escaped from a confinement; you have committed an offense while under probation, parole or conditional pardon; or when the circumstances of the case indicates the probability of flight (there is a risk ba!); or there is an undue risk that the you might commit another crime during the pendency of the appeal, the court will not grant the bail. The discretion there will not be in your favor. If the court has already granted, the bail will be cancelled. Take note of that. Q: When is bail discretionary? A: Based on that provision, after conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, provided the case does not fall under Section 5, third paragraph [a]-[e] of the same law because once the case falls under any of these, no bail even if it is a matter of discretion. Take note of the second instance – bail as a matter of discretion. The first instance is when bail is a matter of right – Section 4. When is bail discretion – Section 5. Yung Section 4, walang problema, that is absolute even if you are a recidivist.

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CASE: The accused was charged with homicide, there was no conviction yet. And then bail. He jumped bail – lumayas! But he was arrested again. When arrested apply na naman for bail. Binigyan na naman ng bail. After a few months, layas na naman. He escaped again. Nahuli na naman. And then he applied for bail for the third time. This time, sabi ng judge, “Ayaw ko na. Because of your character, di na puwede for jumping bail twice already. I will not grant you bail.” And he questioned it before the court. Is the denial of bail correct because of the past record of the accused? The SC said NO because the bail is a matter of right. He falls under Section 4 there. Wala pang conviction. Even if he jumps bail 100 times you cannot deny him bail for as long as the crime is not punishable by perpetua to death. (Sy Guan vs. Amparo, 79 Phil. 670; People vs. Alano, 81 Phil. 19) Q: What is the remedy to this kind of accused? Remedy? A: Taasan mo ang bail. So magkano bail mo dati? P30,000? Alright, ngayon P70,000 na! Tingnan natin kung tatakbo pa yan. [putulin kaya ang paa?] Previous abscondence or escape is not a ground for the denial of the bail; it merely gives the court discretion to increase the amount of the bond as will reasonably tend to assure the presence of the accused. (Sy Guan vs. Amparo, 79 Phil. 670; People vs. Alano, 81 Phil. 19) Now, I am amused by what happened in Section 5. Did you hear the promulgation of the Robillo case one month ago? I don’t know how many were convicted. I think 3 or more were convicted. One of them is a radioman. I know where he hangs around. One day before the promulgation, he is no longer hanging around. He disappeared already, naamoy na niya siguro. Some were military men. They were convicted. At least one of them was acquitted. Many were convicted. The penalty was reclusion perpetua. And after the trial everybody left, including the convicted accused. I was visiting the jail the following day. The warden was telling me, “What happened to this case? Since yesterday we were expecting the convicted person to be brought here. Convicted eh.” So I asked the fiscal kung anong nangyari dyan because from what we know, if you are found guilty for murder, for example, and sentenced to reclusion perpetua on the spot, you will be sent to jail. “Teka muna! Hindi pa final yung conviction!” Never mind! You can appeal but you are now detained indefinitely. Wala nang labas labas ‘yan. From the court room, diretso ka na sa jail. “But the judgment is not yet final?” But there’s already the judgment of conviction. Even when there’s still no of conviction, when the evidence of guilt is strong, your bail will be denied. Even in the middle or at the start of the case, if the evidence of guilt is strong, bail will be denied lalo na kung capital punishment. How much more here when there is already a judgement of conviction?! Logic! simple logic. And the branch clerk of court, I think you know her – Atty. Morales. She called me up in the office. Sabi niya, “Anong nangyari dito? di ba walang bail yan?”. Sabi ko “Yes”. I wonder bakit walang bail. Bakit hindi ikinancel? Kailangan daw i-cancel pa ang bail. That was what the judge said. Sabi ko, NO! The bail is automatically cancelled. That is what I said so. Sabi niya (clerk of court), “I was pointing to the judge Section 5. Eh sabi niya (judge), ‘No. Bail is discretionary because of this paragraph 3 – if the penalty imposed by the trial court is imprisonment exceeding 6 years the accused should be denied bail or bail should be cancelled upon showing by the prosecution with notice of the accused of the following. Therefore, bail could be granted because the penalty is exceeding 6 years.’” That implies that bail is discretionary because in Section 5, the heading is “Bail, when discretionary” so hindi cancelled. I said, “Tingnan mo ang opening paragraph of Section 5 – upon conviction of the RTC of an offense not punishable by death, perpetua or life imprisonment, admission to bail is discretionary. So itong paragraph 3, upon 6 years but less than perpetua. So up to 20 years. We have to connect paragraph 3 with the first paragraph. Sabi niya (clerk of court), “This is what I know eh. Since I am new in this job. I cannot insist.” Dean I: “Sabihin mo sa judge na nagkamali sya. Ako ang nagsabi.” And after 2 days, pinacancel niya (judge).

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I’ve talked that judge. He was my friend personally. When I see him sabi ko nagkamali ka man dun ba. Dapat yun, on the spot. That’s why everybody is wondering bakit nakaganun yun. Well, that was his first experience with a capital heinous crime. Dio siya naiiba eh. He’s not used to trying this kind. Yung sasabihin mong bail may continue – that assumes that the penalty is above 6 years but not more than 20 years. Pag naging perpetua, wala na. Yung wala pang conviction bail could be denied, lalo na pag may conviction na! The evidence of guilt is now strong! It’s simple logic. That is why this provision will be tricky if we do not know how to interpret this rule.

WHEN BAIL IS DENIED SEC. 6. Capital offense defined. – A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death. (6a)

Take note that the crime is punishable by DEATH not only at the time of its commission but also at the time of the application for bail. The law uses the conjunction “and.” C.f. RA 7659 gives us a list of capital offenses. SEC. 7. Capital offense or an offense punishable by reclusion perpetua life imprisonment, not bailable. – No person charged with a capital offense, an offense punishable by reclusion perpetua or life imprisonment, shall admitted to bail when evidence of guilt is strong, regardless of the state the criminal prosecution. (7a)

or or be of

This means if the accused is charged with a crime which is punishable by death, reclusion perpetua, or life imprisonment, there is NO BAIL even at the start of the trial or even before judgment of conviction, provided that the two (2) conditions are present. “xxx regardless of the state of the criminal prosecution.” Meaning, NO BAIL before conviction. Lalo na pag after conviction! That’s why I told (Atty.) Evalyn Morales na ipakita mo [sa judge] yung Section 7 – “xxx regardless of the state of criminal prosecution.” You already found him guilty beyond reasonable doubt and sentenced him to perpetua, huwag mo sabihing ‘the evidence of guilt is not strong’! How come you convict him?! Yaan! Now, this is where lalabas yung application for bail – Section 8: SEC. 8. Burden of proof in bail application.– At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify. (8a)

Arestado ka, nakulong ka. Under the law, what is the procedure? You file an application for bail. And once an application for bail is filed, it is now MANDATORY for the court to conduct a hearing for the prosecution to present evidence to prove that the guilt is strong, not guilt beyond reasonable doubt because the latter is conviction na yan! Ang ibig sabihin niyan, mag-sample ka lang. You present some of the witnesses but not all. Sample-an mo lang ba. Parang preliminary injunction ba! You present some of your evidence. after that, the court will now consider whether the evidence of guilt is strong or not strong. Either way the court will grant bail or deny bail – tuloy pa rin ang trial! Yaan!

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Q: What happens now to those witnesses? Balik na naman sila sa trial? A: NO. Under Section 8, the evidence received during the bail hearing is automatically reproduced at the trial. Di na kailangang ulitin pa. But you can add more witnesses and more evidence. After that, we will now determine if the accused is guilty or not guilty. Yan na ang guilt beyond reasonable doubt. Now, [Atty.] Ceniza had a problem in Davao Oriental. He told me about it. An offense is, I think punishable by perpetua or higher. Then pag-hingi ng bail, sabi ng prosecutor, “No objection!” Siguro sabi ng court, “No objection? O sige, grant bail!” The prosecutor did not present evidence. Meaning, the prosecutor admits that the evidence of guilt is not strong – wala ng hearing! Puwede ba yan? NO! The SC said that there must be a hearing. Even if the prosecution will not want to present evidence, the court must require a hearing. And the court cannot dispense with the hearing. Let’s go to some decided cases. TUCAY vs. JUDGE DOMAGAS [Adm. Matter No. RTJ-95-1286] March 2, 1995 HELD: “Although the Provincial Prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should nevertheless have set the petition for bail for hearing and diligently ascertained from the prosecution whether the latter was not really contesting the bail application.” “He should have called a hearing for the additional reason of taking into account the guidelines in Rule 114 in fixing the amount of the bail. Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114, sec. 6 for fixing bail should respondent judge have granted the petition for bail and ordered the release of the accused.” Assuming na sabi ng prosecution, “for tactical reason, we will not object.” The court will still have to conduct a hearing – kung pila ang bail. Yaan! You still have to conduct a hearing. You look at Section 9 – Amount of bail; guidelines. In determining how much is the bail, may mga guidelines eh! So if we will grant bail, at least we will have to find out how much. These guidelines must be met. So you still have to conduct a hearing. GUILLERMO vs. JUDGE REYES, JR. January 18, 1995 HELD: “A hearing, in the nature of a summary proceeding entailing judicial determination is required where the grant of bail is addressed to the discretion of the court. The prosecution should be given the opportunity to adduce evidence thereat after which the court should then spell out at least a summary or resume of the evidence on which the order, whether it be affirmative or negative, is based. Otherwise, the order is defective or voidable.” Meaning, if you grant or deny bail, may court order yan. Kailangang i-summarize mo ang evidence. then you state why you believe it is strong or it is weak. Otherwise the judge is administratively liable for not complying with the requirement.

AURILLO vs. FRANCISCO 235 SCRA 283

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HELD: In a hearing for petition for bail, affidavits will not suffice. Witnesses must be present to testify. Affidavits will suffice only when it determines probable case for the purpose of whether or not to issue search warrant. The judge has the personal duty of calling the witnesses one by one to hear them for or review the evidence, i.e. affidavits presented at the fiscal’s office. “Verily, it was patent error for him to base his order granting bail merely on the supporting affidavits attached to the information since those were merely intended to establish probable cause as basis for the issuance of an arrest warrant, and not to control his discretion to deny or grant bail in all situations” AGUIRRE vs. JUDGE BELMONTE October 27, 1994 HELD: “Even if the prosecution fails to adduce evidence in opposition to an application for bail of an accused, the court may still require that it answer questions in order to ascertain not only the strength of the state's evidence but also the adequacy of the amount of bail.” So kahit na sabihin pa ng prosecution that it is not opposing in the application of the bail, sabi ng SC: Ah, hindi puwedee! The court will have to ask the prosecution, why are you not opposing? Yaan! Whether to grant or deny bail, a hearing is a 100% requisite. Otherwise the order granting or denying bail is defective, and the judge may lose his job. Let’s go to this important question: Q: For bail to be denied, what are the requirements? A: Under the law: 1. the evidence of guilt is strong; 2. the crime is punishable by death, reclusion perpetua or life imprisonment; 3. [based on jurisprudence] if the accused is convicted in all probability the penalty will also be death, reclusion perpetua or life imprisonment. So you have to look at the probable penalty. This principle has been illustrated in the case of BRAVO, JR. vs. BORJA 134 SCRA 466 FACTS: The accused was charged with murder – perpetua to death – talagang non-bailable yan. The accused filed a petition for bail where the case is pending on the argument that when he committed a crime, he was only 16 years old. He attached his birth certificate in the application for bail. Sabi niya, if found guilty, the penalty is automatic one (1) degree lower – so, temporal. The worst that will happen to him is temporal. Therefore, bail now becomes a matter of right. ISSUE #1: In the hearing for bail, should the court allow the presentation of evidence of mitigating or aggravating circumstances? HELD: NO. Bravo, Jr. is wrong. In the hearing for a petition for bail, the presentation of aggravating and mitigating circumstances is NOT covered because if the court will required the presentation of said circumstances, then there would be a need for a trial on the merits of the case. All the court has to do after the bail hearing would be to render a decision. That would defeat the purpose of the hearing for bail.

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ISSUE: #2: Whether or not Bravo, Jr. is entitled to bail. HELD: YES. Although the presentation of aggravating and mitigating circumstances is NOT allowed, the SC said, However, we cannot close our eyes to the fact that when Bravo, Jr. committed the crime he was only 16 years old. Normally, we close our eyes, but in this case, we cannot close it because he alleged it. As a matter of fact, his birth certificate was attached to this petition and the prosecution DID NOT challenge his minority. Since the plea of minority is already before us and the accused did not challenge it, we cannot close our eyes to the fact that even if we fin him guilty, the penalty to be imposed would not be reclusion perpetua or death but lower. Since the probable penalty is not death or perpetua, then he is entitled to bail as a matter of right. Q: So what are the principle points to remember in the case of Bravo, Jr? A: The following: 1. that in a petition for bail there should be no evidence of any aggravating or mitigating circumstances. It should not be presented in a petition for bail. This should be presented during the trial; 2. however, despite the fact that it should not be presented, if it is alleged and presented there and the prosecution did not dispute it, the court should consider it just the same; and 3. even if the accused is charged with a crime punishable by death, perpetua or life imprisonment and the evidence of guilt is strong, if the probable imposable penalty is less than perpetua, bail becomes a matter of right.

PEOPLE vs. CALO 186 SCRA 620 [1990] FACTS: Three (3) people were accused of murder for the death of the victim. The prosecution recommended no bail. After a hearing to determine whether the evidence of guilt is strong, the trial court issued the order granting bail. The son of the victim went to the SC questioning the order granting the bail of the accused. ISSUE: Whether or not the son of the victim has sufficient legal personality to question the order granting bail? (Normally, if there is anyone who should question it, it should be the Solicitor General representing the people of the Philippines) HELD: While the rule is, only the Solicitor General may represent the People or the State in criminal proceedings pending in this Court and the Court of Appeals, the ends of substantial justice would be better served, and the issues in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against the judge's order granting bail to the alleged murderers of his (private petitioner's) father. So, the case of Calo was considered an exception because he is also an aggrieved party – the aggrieved parties are the People and the family of the victim. So in this case, the son is also an aggrieved party. So based on what we have gone so far, let us now try to summarize the instances under Rule 114 where bail is a matter of right, discretion, or is denied. Q: When is bail a MATTER OF RIGHT: A: Bail is a matter of right –

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1. Before conviction by the MTC, MTC, or MCTC; 2. After conviction by the MTC; 3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; and 4. Before conviction by the RTC of an offense punishable by death reclusion or life imprisonment when evidence of guilt is not strong. This is because once the court finds that the evidence of guilt is strong, bail becomes a matter of right. Q: When is bail DISCRETIONARY? A: Bail is discretionary after conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment provided, the case does not fall under the 3rd paragraph of Section 5 [a] – [e]. Q: When shall bail be DENIED? A: The bail shall be denied under the following instances: 1. before conviction by the RTC of an offense punishable by death, reclusion perpetua or life imprisonment when the evidence of guilt is strong; 2. after conviction by the RTC and the penalty imposed is death, reclusion perpetua or life imprisonment. He can appeal but in the meantime, there is no bail; and 3. after conviction by the RTC where the penalty imposed is imprisonment exceeding 6 years but no more than 20 years, and the case falls under Section 5 [a] – [e]. So, recidivist, or you escaped from confinement, or there is undue risk, etc. ayan! Pagnahulog ka diyan, bail shall not be granted. And this is where the question of Ms. Masepequeña will come in: Q: Mr. Peloton was charged with a crime (sorry kaayo Gay! ) punishable by temporal. He was convicted but the penalty is 6 years or less (for instance, there are mitigating circumstances) and he wants to appeal to the CA. Is it a matter of right or a matter of discretion? A: My view is, it is a matter of discretion but even if these circumstances (recidivist, etc.) still bail can be granted. That is the effect. Whereas, if the penalty is 6 years 1 day to 20 years and he is a recidivist, etc., bail shall not be granted. But if it is only 6 years or less, it may be granted although it is not a matter of right. SEC. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) Financial liability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required. (9a)

Q: When bail shall be granted, how much is the amount of it? A: There are guidelines under Section 9 – marami eh! Of course one of the factors is paragraph [c] – penalty for the offense charged. That’s why the DOJ has a guidelines eh na kapag ganito ang penalty, ganito a ng i-recommend mo. But that is only one of the factors. The court can either follow the recommendation or raise it or lower it because aside from that, marami pa eh like financial ability of the accused, character or reputation of the accused, etc. And all these guidelines where taken from the ruling in the case of VILLASEÑOR VS. ABANO (21 SCRA 312) Q: What do you mean by corporate surety? A: Section 10:

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SEC. 10. Corporate surety. – Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors. (10a)

Q: What do you mean by a property bond? A: Section 11: SEC. 11. Property bond, how posted. – A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention. (11a) SEC 12. Qualifications of sureties in property bond. – The qualifications of sureties in a property bond shall be as follows: (a) Each must be a resident owner of real estate within the Philippines; (b) Where there is only one surety, his real estate must be worth at least the amount of undertaking; (c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded. In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution. (12a) SEC. 13. Justification of sureties. – Every surety shall justify by affidavit taken before the judge that he possesses the qualification prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified. (13a)

Q: What do you mean by cash deposit? A: Section 14: SEC. 14. Deposit of cash as bail. – The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. (14a)

RECOGNIZANCE Let’s go to the 4th type of bail – recognizance – which are not understood by many how it operates. SEC. 15. Recognizance. – Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person. (15a)

So, no money – nothing is filed in court. “On my word of honor, I will appear when the court requires me to appear. If I’m convicted, don’t be afraid. I will not runaway.” Court: “Word of honor ha? [promise ha] OK!” – Yan! Yan ang recognizance. Or, instead of going to jail, “Payag man ang mayor na doon na lang daw ako sa kanya. Siya daw ang bahala sa akin.” Court: “OK. You will be in the custody of the mayor. Kung

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may problema, or anytime you are required to appear, you appear!” And the mayor will promise, “Akong bahala dito. Hindi ito tatakbo [puputulan ko ng paa!] Sagot ko ito.” – Yan ang recognizance – word of you word or word of a responsible person. Para bang character loan – you borrow money, no collateral and I promise to pay you. Creditor: “Believe ako sa iyo. Your word is as good as a security. OK!” Q: Is recognizance possible in all criminal cases? A: NO. Under the rules, recognizance is only allowed whenever allowed by law or these Rules. So, if it is not allowed by law or the rules, hindi puwede. Q: How do you define recognizance? A: A recognizance is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. (People vs. Abner, 87 Phil. 566, 569) The next question is, what are the instances where recognizance is allowed by the law or this Rules? There are four (4) instances originated and as mentioned by the SC in the 1997 case of ESPIRITU VS. JOVELLANOS (280 SCRA 579). But even before JOVELLANOS came out, the 1985 Rules says that recognizance is possible if allowed by law or the Rules. Ano man yang “by law or this Rules”? So as early as 1985, I was already gathering the instances when the law or the rules allow it. And I gathered four (4). Meron pa man sigurong iba, pero di ko pa siguro nakita. That is why when the case of Jovellanos came out, tiningnan ko – exactly the very four! – not more, not less. [ehem! ehem!] Q: What are the instances when recognizance is allowed by the law or this Rules? A: In the case of ESPIRITU VS. JOVELLANOS (280 SCRA 579): 1. Under RA 6036 – when the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in R.A. No. 6036; 2. Rule 114, Section 16, last paragraph: “A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.”

3. Rule 114, Section 24: “No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.”

4. Under PD 603 (Child and Youth Welfare Act) – in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in P.D. No. 603, as amended. Those are the four instances where recognizance is allowed. So it is not possible in all cases. This reminds of a former student of this law school who graduated way back in 1977. He is from Agusan. I remember during the mid-80’s, I went to Cagayan. Wala pa itong Buda, so I have to travel via Butuan. On my way back at around 4 P.M., we were riding in a private vehicle, we stopped at a town in Agusan. We took a break kay kapoy eh. There

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were numerous big houses there. And then I saw this attorney so and so and I recognized him because he was a graduate of this school. Anyway I’m not in a hurry, I went there. So I met this lawyer and I gave my name. ATTY: “Uy! You! We did not see each other for a long time. Kumusta? [videoke ta!]” DEAN: “I was just passing by. What are you doing now? [na kay fundador diha?]” ATTY: “I’m practicing law. Karamihan criminal.” And I noticed marami siyang helpers sa bahay niya. So I asked him, “Ba’t karami mo namang houseboys?” ATTY: “They are not houseboys, Sir. They are all accused!” DEAN: “Why are they with you?” ATTY: “Recognizance.” DEAN: “Ano pala mga crimes nila?” ATTY: “Murder, Homicide.” Na-shock ako!! Paano nakakuha ng recognizance ito eh hindi man puwede yan because recognizance is only possible if allowed by law or the rules. Pero nobody is complaining naman there. SEC. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be required when the law or these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. (16a)

Let’s go further. As a general rule, when the criminal case is filed, there will be warrant of arrest. If there is warrant of arrest, there must be a bail either in cash or recognizance. But Section 16 provides that no bail shall be required when the law or these Rules so provide. This is now the question: Q: What are the instances where despite the pendency of the criminal case, the accused is not required to post bail? Meaning, he is exempt from putting up a bail bond because the law or the rules says so. A: The following are the instances: 1. Under RA 6036 – yung mga 6 months or less under the conditions mentioned therein; 2. When the crime is covered by the Summary Rules because of Section 16 of Rule 114. When a case is filed under the Summary Rules, a mere notice is sufficient. No need of a warrant of arrest. 3. Section 9 [b] of Rule 112 (this is a new sentence): “x x x x However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.”

So, the court is satisfied that there is no need to issue a warrant of arrest maybe because the court believes that you will not run away. In effect, no bail shall be required. SEC. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. (b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal.

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Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. (17a).

Section 17 is another important provision on where to file the bail. Normally, you file the bail before the same court where you case is pending. But if the judge is not around, under paragraph [a], puwede man any RTC judge, MTC judge, etc. Q: Suppose your case is in Davao and you are arrested in Manila, can you post bail in Manila? A: YES because it would be very tedious if you will be arrested and brought back in Davao just to post bail. And under paragraph [a], it may be filed with any RTC of such place. And of course, the judge there will accept the bail and transmit everything to Davao. Q: What are the instances where the accused is only allowed to post bail before the very same court where the case is pending? A: Under paragraph [b], the following are the instances: 1. if you seek to be released on recognizance, no other judge can grant it other the judge where you case is pending; 2. when bail is a matter of discretion. For example: Ms. Tormon is accused of a capital offense and she would like to file a petition for bail because the evidence of guilt is not strong, that should be decided by the very court where her case is pending. Q: Is the MTC entitled to entertain a petition for bail? A: YES Q: What are the instances when a MTC is entitled to entertain applications for bail? A: The following are the instances: 1. Under paragraph [b], the application may be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal. With this provision, it would seem puwede; 2. MTC can entertain petitions for bail in cases not cognizable by it filed before it for purposes of preliminary investigation. That is why in one case the SC held that inferior courts (MTC) can entertain applications for bail in capital offenses as an incident to its power to conduct preliminary investigation. (Manigbas vs. Luna, 98 Phil. 466); and 3. Section 35 of the Judiciary law (Special jurisdiction of the MTC) –the MTC may hear and decide petitions for a writ of habeas corpus or applications for bail in the absence of ALL the RTC judges. Let’s go now to the last paragraph of Section 17: “Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.”

This is one provision that has stunned so many: how can a person be in custody who is not yet charged in court? He is already in custody pero wala pa mang kaso? What is contemplated under the last paragraph of Section 17 is Rule 112 Section 7 on INQUEST preliminary investigation – when a person is lawfully arrested without a warrant, he will be detained immediately without preliminary investigation. But if he demands a preliminary investigation, he can get it but he must waive the effects of Article 125 of the RPC. Section 7, Rule 112, last sentence of second paragraph provides: “Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.” So he can ask for bail even if he is not yet charged in court.

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Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition Q: If you apply for bail with any court in the province, city and number ng petition mo? You cannot put there “People of wala pa mang criminal case? What will be your reference? A: “IN RE: PETITION FOR BAIL.” So bahala na kayo diyan. how to docket it. Basta that is my right under the law! So you

or municipality, ano ang title the Philippines versus…” kay Bahala na ang clerk of court think of your own caption.

SEC. 21. Forfeiture of bail. – When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) produce the body of their principal or give the reason for his nonproduction; and (b) explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted. (21a)

Another important provision is Section 21 – how bail is forfeited. If you are required to appear in court for an arraignment, or for some other reason, and you did not appear, the first step is, upon motion of the prosecution, the court will issue an order to confiscate the bond and the court will also direct the bondsmen: 1. to produce the body of their principal within 30 days; AND 2. to explain why the accused did not appear before the court when first required to do so. Dalawa yan – (1) produce him within 30 days, and (2) explain why you failed to produced him. If you satisfy both conditions, no problem – the court will issue an order lifting the order of the forfeiture. Q: Suppose you failed to comply both or one of the conditions, what will happen? A: The court will render judgement on the bond. Meaning, the bonding company is now liable on its bond. So ang una, order of confiscation or forfeiture of the bond. The second stage is, if the conditions are not met, there will be judgment against the bond. So that is the step-bystep application of Section 21. SEC. 23. Arrest of accused out on bail. – For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. (23a)

Section 23 is an instance of a valid warrantless arrest. This is a continuation of Section 5 Rule 113. For the purpose of surrendering the accused, they can arrest him without a warrant. The bondsmen is his jailer. The theory of bond, lalo na yung corporate bond, is that the sureties or bondmen becomes you jailer in the eyes of the law, and you are their prisoner. They took over the government. In reality, they are not really imprisoning you. You are a free man. And importante, you put up money for you release – you pay premium, back up your commitment with property. Parang insurance din ito eh. Now halimbawa, nainis sila sa iyo? – hindi ka nagabayad ng premium – puwede ka man nila arestuhin bah! The bondsmen can have you arrested without a warrant. So diretso ka sa jail.

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Let’s go to last paragraph of Section 23. If you are attempting to leave the Philippines, lalo na kung may hold departure order, even if you are on bail, you can be arrested without a warrant. Now, we will go to this question related to you constitutional right to travel: Q: How do you reconcile Section 23 with the constitutional right to travel? A: In the 1986 case of MANOTOC vs. COURT OF APPEALS 142 SCRA 149 ISSUE: How come if you are out on bail, you cannot leave the country without the permission of the court? HELD: “A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel.” (because this is one of the conditions of the bail bond – you must be available whenever the court requires you to appear.) “Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to the latter.” “The court cannot allow the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance, the government impliedly agrees that it will not take any proceedings with the principal that will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent.” So, if your own bondsmen have the right to prevent you, with more reasons with the court who has the complete jurisdiction over your person. But even if the court wants to grand you permission to leave, gusto mong mag-tour, but sabi ng bondsmen, “Ayoko nga!”, then the court has no power to grant your request because the bondsmen must also agree. (Manotoc vs. CA, supra) SILVERIO vs. COURT OF APPEALS April 8, 1991 FACTS: Silverio was charged criminally for violation of Revised Securities Act. For more than two years, there were series of postponements of the arraignment scheduled therein. He could not be arraigned because he had gone abroad several times without the necessary court approval. The prosecution got fed up already. So upon motion of the prosecution, the trial court ordered the DFA to cancel Silverio’s passport or to deny the application to re-new the passport. The Commission on Immigration is also ordered to prevent Silverio from leaving the country. Now, according to Silverio, the court’s orders are unconstitutional because under the Constitution, courts can impair the right of a citizen to travel only on the ground of national security, public safety or public health. Silverio: “Is there an issue of national security? Wala man! Public safety? Wala man! Public health? Wala rin! Therefore, you cannot prevent me from travelling.” The SC here traced the history of that constitutional provision. How did that provision came out? HELD: The phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon

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application of an interested party. (because during the Marcos era, he created a travel processing agency headed by General Ver, where every Filipino who wants to travel abroad must be cleared by that office.) Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. In other words, the court has always the power to prevent an accused from leaving for abroad. And that constitutional provision was never interpreted to limit the power of the court. Therefore, Silverio was citing the wrong provision. The philosophy does not apply to Silverio. Yaan! SANTIAGO vs. GARCHITORENA December 2, 1993 FACTS: Several criminal cases were filed against Miriam Santiago arising from her tenure as Immigration Commissioner. Now, she was interviewed by the media and she said that she is leaving in a few days for abroad because she was offered a fellowship grant by the Harvard University. Nabasa ng Sandiganbayan ang interview sa newspaper, “Uy! Aalis! Alright, Hold-Departure Order!” Santiago questioned the order. ISSUE: May a court trying a criminal case issue a hold-departure order motu propio to prevent the accused from leaving the country even if the prosecution did not file any motion to issue such order? HELD: YES. “The court has the power to issue motu propio a hold-departure order. The hold-departure order is but an exercise of the court’s inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused.” MARCOS vs. SANDIGANBAYAN 247 SCRA (August 9, 1995) FACTS: Criminal charges were filed against Imelda Marcos. In one of the cases, she was convicted by the Sandiganbayan. After conviction, she filed a motion for reconsideration and while her motion was p ending, she filed a motion for leave to travel abroad for treatment of hypertensive heart disease, uncontrolled angina pectoris, and anterior myocardial infarction. The motion was supported by medical reports prepared by her physician and cardiologist and other doctors in Makati Medical Center. Presiding Justice Garchitorena referred the issue to a committee of cardiologists from Health Center of the Philippines for extra opinion on some questions among which was: “Is Marcos’ condition fatal? Or, Is she in danger of dying? The committee submitted a report which was heard in the presence of the two lawyers of Marcos. Report ng committee: she was sick but the evidence not confirm the allegation that Mrs. Marcos is in the high risk group of sudden cardiac death. In other words, she is sick but she is not in danger of dyiing. With that, the Sandiganbayan, “Ah hindi pala malala eh! So, wala! Motion denied!” Marcos went to the SC attacking the Sandiganbayan order alleging that the court adopted an unusual and unorthodox conduct by motu propio conducting a third party asking the latter to give an opinion. Marcos: “Nobody is questioning. Bakit ba itong Sandiganbayan will not take the words of my doctors? Parang walang kumpiyansa!” HELD: “The Sandiganbayan acted properly. Respondent court had to seek expert opinion because petitioner's motion was based on the advice of her physician. The court could not be expected to just accept the opinion of petitioner's physician in resolving her request for permission to travel. The subject lay beyond its competence and since the grant of the request depended

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on the verification of the claim that petitioner was suffering from a medical condition that was alleged to be serious and life threatening, the respondent court, we think, followed the only prudent course available of seeking the opinion of other specialists in the field.” “Indeed, when even in their own field of expertise (law) courts are allowed to invite amici curiae to shed light on recondite points of law, there is no reason for denying them assistance on other subjects.” “Perhaps the best proof that she is not in the group is the fact that she ran in the last election for a seat in the House of Representatives and won. It may be assumed that she waged an arduous political campaign but apparently is none the worse for it.” Meaning, even in law which is already your field of expertise, the court are even allowed to seek the help of other lawyers, lalo na when it comes to the field of medicine. And finally after one year, she ran for congresswoman in Leyte and she won. Of course when you campaign, you have to undergo a terrible schedule of campaigns. Eh bakit buhay ka pa? So in other words, you are not really in danger of dying. And she is very much alive now. COJUANGCO vs. SANDIGANBAYAN 300 SCRA 367 [1998] FACTS: Cojuangco has several pending cases before the Sandiganbayan. And there is a travel ban everytime he travels abroad. ISSUE: Is there a need of hold-departure orders everytime Cojuangco travels abroad considering that many things happened to Cojuangco? HELD: “We resolve in the negative. The travel band should be lifted, considering all the circumstances now prevailing. It now becomes necessary that there be strong and compelling reasons to justify the continued restriction on Cojuangco’s right to travel abroad. Admittedly, all of Cojuangco’s previous requests to travel abroad has been granted and that Cojuangco has always returned to the Philippines and complied with the restrictions imposed on him.” “The necessity of further denying Cojuangco’s right to travel abroad, with attendant restrictions, appears less than clear. The risk of flight is further diminished in view of Cojuangco’s recent reinstatement as Chairman and Chief Executive of San Miguel Corporation, though he has now more justification to travel so as to oversee the entire operations of that company. In this regard, it has to be conceded that his assumption of such vital post has come at a time when the current economic crisis has adversely affected by international operations of many companies, including San Miguel.” “The need to travel abroad frequently on the party of Cojuangco, to formulate and implement the necessary corporate strategies and decisions, could not be forestalled. These considerations affecting Cojuangco’s duties to a publicly held company, militate against imposing further restrictions on Cojuangco’s right to travel abroad.”

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. (n)

Section 26 is a new provision. Q: If you post bail, are you under estoppel to question the validity of the arrest or the regularity or absence of a preliminary investigation?

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A: Under Section 26, NO. The pivotal point is for as long as you have not yet entered your plea. Once you entered your plea, all the defects are considered waived. But the posting of bail alone is not considered as waiver to raise those issue.

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