BAIL

Normally after a person is placed under custodial investigation and then the police authorities will build
up a case against him, a complaint will be filed in the office of the fiscal and if there is probable cause
the information will be filed in court and what would ensue is a warrant of arrest, 10 days after the filing
of the information. On that score, we need to know that if the information is filed in court and there is a
warrant of arrest and the offense is a bailable offense the person is entitle to bail. Speaking of bail that is
actually a security for the temporary release of that person pending the trial of his case and that is
furnished by him by a bondsman. This is only a guaranty or security for him not to abscond and for that
he’ll be free in the mean time while that case is being tried in court because if he is behind bars and the
case will run on for 3 or 5 years it would then be prejudicial to the accused, only to be acquitted later on.

This right to bail goes from the presumption of innocence because under the law the accused is
presumed to be innocent until proven otherwise. If the accused is on bail he is still allowed to travel
within the Philippines, but if outside you need to secure the permission of the court. In our jurisdiction,
bail may be in the form of cash, property or in the form of a surety bond. Recognisance is a kind of
temporary release and no bail is actually put up. It is just that the person will be released in the custody
of somebody who assures the court that he will bring the accused back to the court if his appearance is
needed. When you say cash bond, it is plain and evident, it means that you’ll put up money.

Property bond is that when you have no sufficient cash and you have a real property and a parcel of land
and the title is clean and then you may want to present that in court as your security for you to be
allowed liberty will the case is on trial. But if you have money it is better for you to put up a cash bail
because you can be immediately be out on bail. Whereas when you will put out a property bond, you
need to secure the title, it should be a certified copy of the title plus your title itself, you need to present
a reality tax clearance showing that the taxes due the property were fully paid and it should be showed
that it is not mortgages to another person or entity. Normally, it would take time to process this kind of
bond so you really have to spend time in jail. So if you’re in a hurry, it is better for you to put up a cash
bail. If you have no property and you have no cash, you may want to put up a surety bond.

A security bond is a bond that is issued by a bonding company; you’ll just have to pay for the premium.
Normally, 20% of the bail, then the surety company will issue a surety bond. The thing about a surety
bond you will be required to have at least 2 makers or some other bonding company would require the
issuance of PDC or ____ check. Worst, others would, if you have a deposit in a bank, require an affidavit
that a portion of your savings corresponding to the amount of bail would be earmarked in favour of the
bonding company such that you cannot make use of the same, so for me what’s the point? If you have a
money in the bank might as well put it up as a cash bond, after all the cash bond or any property bond
may be released the moment that the case is terminated, resulting to the acquittal or conviction of the
accused. Take note that it is only a guaranty for the appearance in the court and when his appearance is
need in the court, because if that is a surety, it will not be returned by the surety company that then will
be their profit. The good thing about a surety bond though is that when you really do not have money
with you at least you get to pay a smaller amount.

If you have a malicious intent to abscond do not pay for the cash bond because it will be forfeited in
favour of the state should you jump bail. So if that is your intention, you pay in the form of a surety bail
because the surety company will be held liable and your co-makers. So this are the forms of bail under
our jurisdiction.
I mentioned earlier that once a warrant of arrest is out after filing the information in court then the
person concerned may already put up bail, but even if there is no information yet that is filed in court
but the person is already detained the person concerned may already put up bail.

You were caught in flagrante delicto and then ___ and the information has not yet been filed in court
and you want to be released already. When that happens that you are already detained you can already
apply for bail. You can petition in court to grant your bail, without waiting for the filing of the
information in court. Bail may be in the form of cash, property and surety, while the release on
recognisance no bail is actually put up in that information, because the accused will just be entrusted to
a person whom the court placed the obligation to present the body of the accused the moment the
accused is requested to be present in court. In the case of a release of recognisance if the accused
absconds the one entrusted to the accused will be held in contempt of court. This only applies on petty
offenses or involving minors in conflict with the law, they will be in the custody of the DSWD.

Even if no information is filed in court but if the person is already detained then that person may already
petition for bail, meaning he can already be granted bail for as long as he files a petition in court. You
take note that under sec 13, Article 3, bail becomes a matter of right only if the penalty imposable for
the offense is below reclusion perpetua. It provides that all persons except those charged with offenses
punishable by reclusion perpetua and the evidence of guilt is strong shall before conviction be bailable
by sufficient sureties or be released on recognisance.

Talking about bail, this is only applicable to bailable offenses and in our jurisdiction we already have
what is known as a bail bond guy. Every penalty that is considered bailable has this corresponding
recommended bail. But in actual practice, it is actually the judge who is given the authority to fix the
amount for bail. In fact the judge may increase or decrease the amount for bail, observing of course the
parameters under sec 9, Rule 116, ROC. What are the factors to be considered by the judge in fixing the
amount for bail? First is the financial capacity of the person such that if they really are poor, he can
lower the bail or if the accused is rich then he has the option to raise it. Second, are the major
circumstances of the offense. Third is the penalty subscribed for the offense, the character and the
reputation of the accused, age and health of the accused will be factored in, the evidence against him is
really not that strong. Another factor is the weight of the evidence against the accused, the probability
of him appearing if the court so requires, the fact that he had jumped bail already before, that he was a
fugitive as when he was arrested and the fact that there are pending cases in which the person is
already under bail then these are the things that should be considered by the judge in fixing the amount
for bail.

THINGS TO CONSIDER BY THE JUDGE IN FIXING BAIL:

1. Financial capacity
2. Circumstance of the offense
3. Penalty subscribed by the offense
4. Character and reputation of the accused
5. Age and health
6. Weight of the evidence
7. Probability of him appearing in court
8. Had already jump bail in the past
9. Fugitive when he was arrested
10. There are pending cases in which the person is already under bail
In practice actually, once there is already a recommended bail, accused may want to already file a
motion for reduction of bail. Say if the bail recommended is 200k, accuses can file the same to lower it
to just 100k. Half the fiscal will agree, but if you file a motion for reduction of bail do it in such a manner
there is already a motion there where the fiscal signifies that there is already no objection to your
motion. Otherwise, if there is no objection, the fiscal will just sign your motion. You do that because
once you file that motion and there is no objection in the part of the fiscal that will be approved
immediately by the court. Otherwise, if there is no approval by the fiscal, the court will conduct a
hearing because the court will still notify the prosecutor and require the prosecutor to comment on your
motion. It will take time, so to fast track everything if you are the lawyer for the accused and your
prepare a motion for the reduction of bail, just ask for the at least half for such will be allowed by the
prosecutor, but if such is below one half the fiscal will not then agree.

I mentioned earlier that pursuant to sec 13, Article 3, bail is a matter of right if the penalty imposable to
the offense is lower than reclusion perpetua, but if the penalty imposable is reclusion perpetua and the
evidence of guilt is strong then bail is no longer a matter of right. It is not a matter of right, again, if there
is a confluence of these 2 matters. Such that even if the penalty imposed is reclusion perpetua yet the
evidence is not strong, accused may still be admitted to bail. It should be the two, reclusion perpetua
and the evidence is strong. That is why in the case of Enrile, the SC said that the evidence is not strong,
so Enrile was admitted for bail. You take note also that once the information is filed in court, normally
the office of the prosecutor will say that no bail will be recommended, that is if the penalty imposed is
reclusion perpetua.

If you are the lawyer for the accused, what will you do? You file a motion for the petition for bail,
meaning you file a petition for bail because once this petition is filed the court will conduct a hearing.
The court will direct the prosecution to give evidence so that the court may determine if the evidence
for the accused is strong or weak. The beauty of this is that the hearing will be fast tracked. Even if the
penalty imposable is reclusion perpetua you should file a petition for bail and there should be a hearing.
You take note that even if the prosecution or the fiscal does not object for the petition for bail the court
is mandated to conduct a hearing. In the deduction of bail it is okay if there is no hearing, but in a
petition for bail there should be a hearing even if there is no objection.

If you the lawyer for the accused, do not be discouraged if the information says that there is no bail
recommended for your client, because you must file a petition for bail and at least if it will not be
granted, the case might as well be fast tracked. There is a part on the court to really rule on that petition
in a short span of time. Otherwise the court will render a decision 1 or 2 years after then such will defeat
its purpose, because take note that bail is for the temporary liberty of the accused pending trial. There is
no prescriptive period for bail and such can be raised at any stage of the proceeding. The prosecution
will be forced to release their evidence, meaning the evidence that will be presented in the course of
the bail hearing will automatically be considered as part of the evidence that will be presented in the
course of the trial. If they cannot provide for the evidence then you should be happy if you are the
lawyer for the accused

Allow be to illustrate the rules on the application for bail. As stated under sec 13, Article 3 bail is a
matter of right if the penalty imposable is lower than reclusion perpetua. Conversely, cases file in the
MTC no doubt are bailable offenses, because MTC penalties imposable are those lower than 6 years. If it
is 6 years and 1 day or more it should be cognizable already by RTC.
SITUATION:
Assume that a criminal case is filed in the MTC. Is bail a matter of right? YES. Assume further that the
accused put up bail and after trial a judgment of conviction is rendered, accused is convicted. Accused
elevated the case to the RTC. Can the accused petition to the court that he be allowed to enjoy his
liberty in the mean time that his appeal in the decision to the RTC? Can he say that he be allowed to
continue his liberty under the bail that he previously put up? And if he can do that, is it a matter of right
or is it a matter of discretion on the part of the court? Take note that there is already a conviction.
ANSWER: YES, RTC is a matter of right.
Suppose the decision of the RTC affirms the judgment of conviction as handed out by the MTC yet the
accused elevated further to the CA. May the accused be granted bail at this stage of the proceeding?
And if it can be done, is it a matter of right or a matter of discretion on the part of the court?
ANSWER: The discretion will be exercised by the RTC

Then a case is filed in the RTC, meaning to say the case is cognizable by the RTC and it’s a bailable
offense, so it is no doubt a matter of right here. Assume that after the trial the accused is acquitted, but
it appealed the decision to the CA, can the accused be allowed temporarily post bail in this stage of the
proceedings and if he can, is it a matter of right or a matter of discretion. It is discretionary on the part of
the RTC.

Assume that the case is filed in the RTC and the offense is bailable, this is a matter of right. After the trial
the court renders a decision convicting the accused but the court changed the nature of the offense
from bailable to a non-bailable offense. That let say, he was convicted with homicide to murder. The
accused questioned the decision, so the case is brought to the CA for appeal. May accused be allowed
bail at this stage of the proceeding? Where the offense was originally bailable, yet it was the nature
thereof was changed after the decision is handed down by the court. Is it a matter of right or discretion?
The discretion is to be exercised by the CA.

You take note that for cases cognizable by RTC and suppose that RTC renders a decision finding the
accused guilty of the offense and imposing a penalty exceeding 6 years the application for bail or the bail
previously put up may be cancelled if it can be showed that the offense is committed with the attendant
with any of the following: (1) that the accused is found to be a recidivist, quasi-recidivist, or a habitual
offender, so in which case even if the penalty imposed is 6 years or up then his bail or any application for
bail may be cancelled by the court, or (2) it is established by the prosecution that the accused
committed the offense in violation of his probation, parole, or conditional pardon, in that situation the
bail that the accused put up may be cancelled by the court or that they may not be allowed to enjoy bail
in the mean time that he is appealing the decision of the RTC to the CA or (3) it may be shown that
accused had previously skipped from imprisonment or jumped bail or that he previously violated or
escaped from penal institution while serving judgment then in which case his bail may be cancelled by
the court. (4) if it can be shown that there is a risk that the accused would commit another offense if he
will be allowed to continue his liberty while his case is pending then his bail may be cancelled by the
court, more so (5) if it can be shown by the prosecution upon notice of course to the defense that the
accused is a flight risk.

If the bail is cancelled after the decision the bail can be withdrawn by the accused, because that is not a
violation to his bail, only that his obligation for bail may be extinguished, for he has any right to allow
him to continue with his temporary liberty while the case is pending on appeal. So it can be returned to
him. As regards the right of a person under bail to travel, he cannot travel outside the Philippines
without asking permission from the court.
Even if the offense is punishable by reclusion perpetua and even if the evidence of the accused is strong
there is still a chance that the accused may be admitted bail not withstanding that the offense is
punished by reclusion perpetua evidence is strong against the accused, it is when the accused is (1)
terminally ill, as was ruled in the case of dela Rama v. PP. If the accused is really terminally ill, he may be
allowed bail. In fact this is the argument of Pres. Arroyo that she should be allowed bail because she is
supposed to be terminally ill.

You recall the case of Ecleo, he was facing a case for parricide, a non bailable offense, yet he was
allowed bail, because it was shown of demonstrated to the court that Ecleo was a walking time bomb.
And with that testimony the RTC here in Cebu allowed Ecleo to bail, such that he fled after rendered the
judgment.

Is bail a matter of right in extradition cases? In the case of USA v. Purganan, involving Mark Jimenez,
what was the ruling of the SC then? Is bail a matter of right in extradition cases? Well extradition cases
are considered to be sui generis, a class of their own, this is not a criminal case according to SC, hence
bail is not a matter of right there in. But you take note that in the case of US v. Purganan has already
been modified in the case of Gov’t of Hong Kong v. Judge Onaria(?), G.R. No 15305, April 19, 2007,
where our SC said that in extradition cases the possible extradite may still be admitted to bail provided
that he must be able to demonstrate by clear and convincing evidence that he is not a flight risk and that
he will faithfully abide of the conditions or terms that may be imposed on him by the extradition court.

So again in extradition cases, bail may be availed of but it is merely discretionary. It may be granted if
the person demonstrates by clear and convincing evidence that he is not a flight risk and that he will
faithfully abide of the orders of the extradition court. So in that context, more or less in the case of
Purganan was already modified. It is merely discretionary and not a matter of right.

Is bail available in cases tried by military tribunals? NO. Well if extradition is a class of its own, court
martial also is a class of its own. In the case of Commendador v. De Villa, 200 SCRA 80, SC said that bail is
not a matter of right for those facing trial in military tribunals, because they are high risk. They are
military personnel. How about during the time if there is a suspension of the writ of habeas corpus? Is
bail a matter of right even if there is a suspension of the writ of habeas corpus? YES, sec 13, Article 3 is
very clear on that bail is a matter of right even if the privilege of the writ of habeas corpus has been
suspended for as long as the offense levelled against you is a bailable offense.