Legality of Private Prisons in the Philippines

Submitted By:
Joshua Daniel A. Belmonte
Dave Christian C. Umeran

Submitted To:
Atty. Patricia P. Geraldez
 I. Introduction
History of Philippine Prison System
It was during the Spanish colonization that the Philippines first operated a formal
prison system in 1847. The Old Bilibid Prison was constructed to serve as the main
penitentiary of the country and had a capacity to hold 1,127 prisoners. In 1908, the
prison established workshops wherein prisoners would hone their skill in making
furniture that were sold by the prisons.1 When the American occupation started, they
passed Act No. 1407 or the Reorganization Act that created the Bureau of Prisons. It
was during this occupation that several penal colonies were established across the
country.2 After World War II, the prison security was improved and a death chamber
was constructed in the prison, several other prison facilities were also established.3
Current State of Philippine Prison System
According to an article published by the Philippine Star, the Commission on Audit
has called out the Bureau of Jail Management and Penology due to the 439.48%
overpopulation in the country’s prisons in 2018.4 The same article noted that the total
number of inmates incarcerated in the prison system has reached 136,314 where the
total ideal capacity is capped at 25,268 inmates.5 In the New Bilibid Prison, the
country’s biggest prison alone, it is estimated that 1 in 5 or about 5200 inmates die every
year while in detention. These deaths are attributed to the illness, overcrowding, and
violence that occurs in the prison.6 The influx on the number of prisons have been
attributed to the intensified anti-crime and anti-drug campaigns campaign of the Duterte
administration. Most of the inmates in prison are pre-trial detainees who cannot post
bail. 7
Furthermore, prison officials have faced multiple scandals in mid-2019 after it was
revealed during a Senate inquiry that several inmates obtain certain privileges in
exchange for bribing the officials and prison guards. These privileges include the use

1
Bureau of Corrections, History: Pre-Colonial and Spanish Regimes, available at
http://www.bucor.gov.ph/history/history%201.html (last accessed December 14, 2019)
2
Bureau of Corrections, History: American and Commonwealth, available at
http://www.bucor.gov.ph/history/history%203.html (last accessed December 14, 2019)
3
Bureau of Corrections, History: Developments After World War II, available at
http://www.bucor.gov.ph/history/history%204.html (last accessed December 14, 2019)
4
Elizabeth Marcelo, Jail congestion drops 439% in 2018, but…, PHIL. STAR, June 11,2019,
available at https://www.philstar.com/headlines/2019/06/11/1925526/jail-congestion-drops-
439-2018-but (last accessed December 14, 2019)
5
Marcelo, supra note 1.
6
Jessie Yeung, More than 5000 inmates die in this prison every year, CNN, October 18,2019,
available at https://edition.cnn.com/2019/10/04/asia/philippines-inmate-deaths-intl-hnk-
scli/index.html (last accessed December 14, 2019)
7 Aurora Almendral, Where 518 Inmates Sleep In A Space for 170, and Gangs Hold It

Together, THE NY TIMES, January 7, 2019, available at

https://www.nytimes.com/2019/01/07/world/asia/philippines-manila-jail-overcrowding.html
(last accessed December 14, 2019)
 of mobile phones and televisions as well as allowing relatives of the inmates to
restricted prison areas.8

Proposed Policies on Private Prisons in the Philippine Legislature

Though no bills have been filed in either house of the legislature regarding
private prison, proposals and suggestions on the topic has been discussed by its
prominent members. During the 15th Congress, Representative Arnel Ty suggested
the privatization of existing prisons in light of the escape of some high-profile
convicts from New Bilibid Prison9. He stated that by privatizing our nation’s
prisons, inmate living conditions as well as prison infrastructure would drastically
increase10. Though this proposal fell into deaf ears, the recent anti-crime campaign
of the current administration which has led to more congestion in prisons resulted
to a reexamination on the feasibility of private prisons.

During the interpellations of Senate Bill 1055 otherwise known as AN ACT

ESTABLISHING A SEPARATE FACILITY FOR PRISONERS CONVICTED OF
HEINOUS CRIMES, Senator Francis Tolentino floated around the idea where
private firms should manage the new prison facilities11. The senator discussed his
proposal in an interview with the news channel ANC. In said interview, he said that
private prisons is a possible solution to the problem of overcrowding in prisons. His
proposal is a public-private partnership where the government will construct the
prisons and will be in charge of the security while the private partner will be in
charge of the overall management of the prison12. He further argues that with this
system, the government can save millions of pesos in prison upkeep which can be
redirected to other projects of the government13.

What is a Private Prison?

According to the United States Bureau of Justice and Statistics, private

prisons are defined as prison facilities run by private prison corporations whose
services and beds are contracted out by governments14. According to current laws
of countries who adopt private prisons, a private prison corporation would enter into

8
Xave Gregorio and Gerg Cahiles, In Bilibid, corruption thrives and some inmates live ‘like
king’, CNN PHIL., September 9, 2019, available at
https://www.cnnphilippines.com/news/2019/9/9/New-Bilibid-Prison-corruption-bribery.html
(last accessed December 14, 2019)
9
Gemma Mendoza, Should PH Privatize Prisons?, RAPPLER, August 28, 2012, available at
https://www.rappler.com/nation/11335-should-ph-privatize-prisons (last accessed December
17, 2019)
10
Id.
11
House justice panel vice-chair backs proposal to privatize PH jails, CNN PHIL., October 9,
2019, available at https://www.cnnphilippines.com/news/2019/10/9/fidel-nograles-
privatization-of-prisons.html (last accessed December 15, 2019)
12
Id.
13
Id.
14
Bureau of Justice Statistics, Terms and Definitions: Corrections, available at
https://www.bjs.gov/index.cfm?ty=tdtp&tid=1 (last accessed Devember 15, 2019)
 an agreement with the government where they would admit prisoners in exchange
for a per day or per monthly rate15.

Private prisons are mainly adopted in the United States, Australia and New
Zealand and its outcomes are mixed from state to state. However, for the sake of
brevity, only the private penal systems of the United States and Australia shall be
used as a comparison. In the United States, 8% of its prisoner population are
incarcerated private prisons and costs around 5 billion USD to maintain16. The
massive cost of private prisons to the American taxpayer puts into question whether
or not its employment is logical since no conclusive proof has been found to show
that it saves money in comparison to government correctional facilities17. This has
led to the gradual phase-out of private prisons in 201618. On the other side of the
world, Australia’s 10 private prisons contain 18.4% of its prison population19. In
comparison to the United States, the employment of private prisons has led to
considerable savings for the national government. A recent examination on the
Australian prison system has found that in comparison to a government-run prison,
a private-run prison facility costs 50% less to operate20.

With differing effects that private prisons yield from country to country, the
benefits and detriments of such institutions are many. However, this paper will not
delve into its discussion. This paper shall mainly discuss the legality of a private
prison in the Philippines. Specifically, this paper will examine how the
establishment of a private prison in the Philippines is legal and otherwise.

II. Legality of Private Prisons

Private Prisons are not violative of the 1987 Philippine Constitution.

Under the 1987 Philippine Constitution, Article 3, Section 19 (2),

The employment of physical, psychological, or degrading

punishment against any prisoner or detainee or the use of
substandard or inadequate penal facilities under
subhuman conditions shall be dealt with by law.21

It is clear that it is the intent and concern of the framers by adding this
provision in the 1987 Constitution that inmates should not be deprived of their basic

15
David Khey, Privatization of Prisons, in THE ENCYCLOPEDIA OF CRIME AND PUNISHMENT
1-7 (2015)
16
MATT TABIBI, THE DIVIDE: AMERICAN JUSTICE IN THE AGE OF THE WEALTH GAP 215
(2014)
17
MEGAN MUMFORD ET. AL., THE ECONOMICS OF PUBLIC PRISONS 6 (2016)
18
Press Release by United States Department of Justice, Phasing out our use of Private
Prisons (August 18, 2016) (on file with Author)
19
Press Release by Corrective Services, Report on Government Services (2017) (on file with
Author)
20
Anastasia Glushko, Doing Well and Doing Good: The Case for Privatizing Prisons,
POLICY MAGAZINE, 2016, at 21
21
PHIL. CONST. art III, § 3, para. 2.
 human rights even if they are under imprisonment.22 The State should provide for
adequate penal facilities to ensure that the treatment of the inmates is not inhumane.
With the reports that inmates are forced to sleep on flattened cardboard boxes and
on makeshift stairwells in order to protect them from the cold concrete floors23, it is
clear that the current facilities in prisons are not enough to support the number of
inmates suffering incarceration.

If one looks at the present state of the country’s prisons, it can be argued that
it is violative of the Constitution. Several news reports have stated the deplorable
conditions inside the prisons. In one case, 518 men were cramped and forced to
spend the night in a space that meant for only 170.24 It is situations like this that
contribute to the spread of serious diseases that affect the prison populace.
Overcrowding has helped the diseases such as upper respiratory tract infection,
hypertension, allergic rhinitis, influenza, boils (pigsa), irritant contact dermatitis,
scabies, acute gastroenteritis, and asthma or bronchial asthma.25 If the Constitution
is to be followed, the State through an act of legislation of Congress aimed at
improving the current condition of the country’s prisons. No where is it in the
constitution that there is a prohibition against the operation of private prisons.

Private Prisons are not violative of any current Philippine laws

Republic Act No. 10575 or the Bureau of Corrections Act of 2013 (BuCor
Act)26 and its Revised Implementing Rules and Regulations27 are the overall
controlling laws that regulate the Philippine Penal System. These laws were
passed to help modernize the penal system of the country by upgrading its
facilities, increasing the number of its personnel, upgrading the level of
qualifications of their personnel and standardizing their base pay, retirement and
other benefits, making it at par with that of the Bureau of Jail Management and
Penology (BJMP).28

22
JOAQUIN S. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES:
A COMMENTARY 580 (2009 ed).
23
Aurora Almendral, Where 518 Inmates Sleep In A Space for 170, and Gangs Hold It
Together, THE NY TIMES, January 7, 2019, available at
https://www.nytimes.com/2019/01/07/world/asia/philippines-manila-jail-overcrowding.html
(last accessed December 14, 2019)
24
Id.
25
Chito Chavez, Jail Congestion at 600%, spread of infectious diseases among inmates up by
40% - BJMP, MANILA BULLETIN, March 11, 2018, available at
https://news.mb.com.ph/2018/03/11/jail-congestion-at-600-spread-of-infectious-diseases-
among-inmates-up-by-40-bjmp/ (last accessed December 14, 2019)
26
An Act Strengthening The Bureau of Corrections (BuCor) And Providing Funds Therefore,
[The Bureau of Corrections Act of 2013], Republic Act No. 10575 (2013)
27
Revised Rules and Regulations Implementing the Bureau of Corrections Act of 2013,
Republic Act No. 10575 (2016)
28
Republic Act No. 10575, § 2.
 However, it must be noted that a prison is not considered as a public utility.
Therefore, it cannot be subjected to a government franchise as provided in the
constitution29. JG Summit Holdings vs. Court of Appeals define a public utility as
“a business or service engaged in regularly supplying the public with some
commodity or service of public consequence such as electricity, gas, water,
transportation, telephone or telegraph service.”30 In this case, prisons are facilities
not contemplated under what has been defined as a public utility. Prisons neither
supply the general public a commodity nor is it included in the abovementioned
enumeration.

Whereas as a prison cannot be classified as a public utility as it is not of use

to the general public, a private prison is however possible under the model of a
public-private partnership agreement. A public-private partnership is where the
government encourages the private sector to finance, construct, operate and
maintain infrastructures for the government.31 Under said law, the government may
engage the private sector through a public bidding in accordance to the law, to help
alleviate the awful conditions in prisons by contracting them to build and operate
the facilities in prisons. In return, the government will pay them through the
repayment scheme32 that is provided for in the same law.

Another potential legal impediment to the implementation of a private prison

are the limitations prescribed on privatization under the provisions of the
Administrative Code. What can be transferred to private entities by means of sale
or privatization is fleshed out in Title II, Chapter 1, Section 3 of the Administrative
Code. Under the provision, it states that a department shall only be able to sell or
privatize an asset or corporation33. In this case, incarceration is neither an asset nor
a corporation. It is a function that is carried out by the Department of Justice and its
subsidiary agencies. Such a function cannot therefore be simply transferred to a
private entity. The express limits of the Administrative Code on what can be
transferred to private entities limit how private prisons shall function in this country.
This limit may be in the form where a private corporation shall be in charge of
management of a prison facility, but the government maintains control over it.
Control means that the government has the power to alter, modify, or set aside what
the private corporation has done in the performance of its set duties as defined in

29
PHIL. CONST. art XII, § 11.
30
JG Summit Holdings v. Court of Appeals, Committee on Privatization, G.R. No. 124493,
Sept. 24, 2003, available at
http://www.chanrobles.com/scdecisions/jurisprudence2003/sep2003/124293.php (last
accessed December 15, 2019)
31
An Act Amending Certain Sections of Republic Act No. 6957, Entitled "An Act Authorizing
The Financing, Construction, Operation And Maintenance Of Infrastructure Projects By The
Private Sector, And For Other Purposes [Amending the Build-Operate-Transfer Law],
Republic Act No. 7718, §2 (1994)
32
Republic Act No. 7718, §8
33
Administrative Code of 1987 [ADMIN CODE], Title II, Chapter 1, Section 3 (1987).
 their contract34. In other words, prisons cannot be privatized to the point where
control is vested to a corporation. However, it can be managed by private hands.

Establishment of Private Prisons will help the country be compliant with the United
Nations Standard Minimum Rules for the Treatment of Prisoners. (UNSMRTP)

The United Nations, an international body that promulgates international law

and standards that the member-states should follow and comply with. In 2015, the
United Nations General Assembly passed a resolution that set the United Nations
Standard Minimum Rules for the Treatment of Prisoners which prescribes the rules
to be followed with in dealing with prisoners who are deprived of liberty.

By applying the Doctrine of Incorporation35, the Philippines is bound to

follow the rules set by the United Nations. Particularly, the present state of our
prisons is violative of Rule 13 of the UNSMRTP:

All accommodation provided for the use of prisoners and in

particular all sleeping accommodation shall meet all
requirements of health, due regard being paid to climatic
conditions and particularly to cubic content of air, minimum floor
space, lighting, heating and ventilation.36

The lack of adequate accommodations has forced inmates to be creative in

finding alternative sleeping arrangements.37 The establishment of private prisons
may help decongest the jails and penal institutions due to the possible construction
of several new jailhouse and penal facilities that will house the people deprived of
liberty. With the private sector providing for the facilities and with the government
doing its mandate to regulate and monitor these prisons, the country may finally be
able to comply with the UNSMRTP.

34
Marciano Yacapin vs Court of First Instance of Misamis Oriental, Branch VII, G.R. No. L-
38228, September 12, 1975, available at
http://www.chanrobles.com/cralaw/1975septemberdecisions.php?id=351 (last accessed
December 18, 2019)
35
BERNAS, supra note 9 at 61
36
United Nations Standard Minimum Rules for the Treatment of Prisoners, G.A. Res. 70/175,
rule 13 (December 17, 2015)
37
Aurora Almendral, Where 518 Inmates Sleep In A Space for 170, and Gangs Hold It
Together, THE NY TIMES, January 7, 2019, available at
https://www.nytimes.com/2019/01/07/world/asia/philippines-manila-jail-overcrowding.html
(last accessed December 14, 2019)
 III. Conclusion

Private prisons in the Philippines are still a long way from becoming a reality. As of
December 2019, no bill or contract has been created for such purpose However, if such
becomes a reality, it must be noted that a private prison is not a privatized prison per se.
A private prison merely means that the government has merely delegated management and
construction of facilities to a private entity by means of Build-Operate and Transfer.