1. Bail as a Matter of Right vs. Matter of Discretion

F. Bail (Rule 114); Recognizance Act of 2012 (R.A. No. 10389) (part 1 of 2)

> RULE 114

Bail

Section 1. Bail defined. — Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. (1a)

Section 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 or 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 herein required. 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)

Section 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)

Section 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)

Section 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 convicting 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.

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.

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 accused, 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)

Section 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)

Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. — No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. (7a)

Section 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)

Section 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 ability of the accused to give bail;

(b) Nature and circumstances 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 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)

Section 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)

Section 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 Register of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefor, 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)

Section 12. Qualifications of sureties in property bond. — The qualification 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 the 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 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)

Section 13. Justification of sureties. — Every surety shall justify by affidavit taken before the judge that he possesses the qualifications 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)

Section 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)

Section 15. Recognizance. — Whenever allowed by law or these Rules, the court may release a person in custody to his own recognizance or that of a responsible person. (15a)

Section 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)

Section 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, or 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 on appeal.

(c) 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 18. Notice of application to prosecutor. — In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. (18a)

Section 19. Release on bail. — The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule.

Whenever bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed. (19a)

Section 20. Increase or reduction of bail. — After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody. (20a)

Section 21. Forfeiture of bond. — 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 cause 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 non-production; 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)

Section 22. Cancellation of bail. — Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death.

The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on the bond. (22a)

Section 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 24. No bail after final judgment; exception. — No bail shall be allowed after the judgment of conviction has become final. If before such finality, the accused has applied 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. (24a)

Section 25. Court supervision of detainees. — The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and their prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees.

In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein.

A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information. (25a)

Section 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 therefor, 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)

> REPUBLIC ACT No. 10389

AN ACT INSTITUTIONALIZING RECOGNIZANCE AS A MODE OF GRANTING THE RELEASE OF AN INDIGENT PERSON IN CUSTODY AS AN ACCUSED IN A CRIMINAL CASE AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Short Title. – This Act shall be known as the "Recognizance Act of 2012″.

F. Bail (Rule 114); Recognizance Act of 2012 (R.A. No. 10389) (part 2 of 2)

Section 2. Statement of Policy. – It is the declared policy of the State to promote social justice in all phases of national development, including the promotion of restorative justice as a means to address the problems confronting the criminal justice system such as protracted trials, prolonged resolution of cases, lack of legal representation, lack of judges, inability to post bail bond, congestion in jails, and lack of opportunity to reform and rehabilitate offenders. In consonance with the principle of presumption of innocence, the 1987 Philippine Constitution recognizes and guarantees the right to bail or to be released on recognizance as may be provided by law. In furtherance of this policy, the right of persons, except those charged with crimes punishable by death, reclusion perpetua, or life imprisonment, to be released on recognizance before conviction by the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it, upon compliance with the requirements of this Act, is hereby affirmed, recognized and guaranteed.

Section 3. Recognizance Defined. – Recognizance is a mode of securing the release of any person in custody or detention for the commission of an offense who is unable to post bail due to abject poverty. The court where the case of such person has been filed shall allow the release of the accused on recognizance as provided herein, to the custody of a qualified member of the barangay, city or municipality where the accused resides.

Section 4. Duty of the Courts. – For purposes of stability and uniformity, the courts shall use their discretion, in determining whether an accused should be deemed an indigent even if the salary and property requirements are not met. The courts may also consider the capacity of the accused to support not just himself/herself but also his/her family or other people who are dependent on him/her for support and subsistence.

Other relevant factors and conditions demonstrating the financial incapacity of the accused at the time that he/she is facing charges in court may also be considered by the courts for the purpose of covering as many individuals belonging to the marginalized and poor sectors of society.

Section 5. Release on Recognizance as a Matter of Right Guaranteed by the Constitution. – The release on recognizance of any person in custody or detention for the commission of an offense is a matter of right when the offense is not punishable by death, reclusion perpetua, or life imprisonment: Provided, That the accused or any person on behalf of the accused files the application for such:

(a) Before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court; and (b) Before conviction by the Regional Trial Court: Provided, further, That 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 the person’s recognizance.

Section 6. Requirements. – The competent court where a criminal case has been filed against a person covered under this Act shall, upon motion, order the release of the detained person on recognizance to a qualified custodian: Provided, That all of the following requirements are complied with:

(a) A sworn declaration by the person in custody of his/her indigency or incapacity either to post a cash bail or proffer any personal or real property acceptable as sufficient sureties for a bail bond; (b) A certification issued by the head of the social welfare and development office of the municipality or city where the accused actually resides, that the accused is indigent; (c) The person in custody has been arraigned; (d) The court has notified the city or municipal sanggunian where the accused resides of the application for recognizance. The sanggunian shall include in its agenda the notice from the court upon receipt and act on the request for comments or opposition to the application within ten (10) days from receipt of the notice. The action of the sanggunian shall be in the form of a resolution, and shall be duly approved by the mayor, and subject to the following conditions:(1) Any motion for the adoption of a resolution for the purpose of this Act duly made before the sanggunian shall be considered as an urgent matter and shall take precedence over any other business thereof: Provided, That a special session shall be called to consider such proposed resolution if necessary; The resolution of the sanggunian shall include in its resolution a list of recommended organizations from whose members the court may appoint a custodian. (2) The presiding officer of the sanggunian shall ensure that its secretary shall submit any resolution adopted under this Act within twenty-four (24) hours from its passage to the mayor who shall act on it within the same period of time from receipt thereof; (3) If the mayor or any person acting as such, pursuant to law, fails to act on the said resolution within twenty-four (24) hours from receipt thereof, the same shall be deemed to have been acted upon favorably by the mayor; (4) If the mayor or any person acting as such, pursuant to law, disapproves the resolution, the resolution shall be returned within twenty-four (24) hours from disapproval thereof to the sanggunian presiding officer or secretary who shall be responsible in informing every member thereof that the sanggunian shall meet in special session within twenty-four (24) hours from receipt of the veto for the sole purpose of considering to override the veto made by the mayor. For the purpose of this Act, the resolution of the sanggunian of the municipality or city shall be considered final and not subject to the review of the Sangguniang Panlalawigan, a copy of which shall be forwarded to the trial court within three (3) days from date of resolution. (e) The accused shall be properly documented, through such processes as, but not limited to, photographic image reproduction of all sides of the face and fingerprinting: Provided, That the costs involved for the purpose of this subsection shall be shouldered by the municipality or city that sought the release of the accused as provided herein, chargeable to the mandatory five percent (5%) calamity fund in its budget or to any other available fund in its treasury; and (f) The court shall notify the public prosecutor of the date of hearing therefor within twenty-four (24) hours from the filing of the application for release on recognizance in favor of the accused: Provided, That such hearing shall be held not earlier than twenty-four (24) hours nor later than forty-eight (48) hours from the receipt of notice by the prosecutor: Provided, further, That during said hearing, the prosecutor shall be ready to submit the recommendations regarding the application made under this Act, wherein no motion for postponement shall be entertained.

Section 7. Disqualifications for Release on Recognizance. – Any of the following circumstances shall be a valid ground for the court to disqualify an accused from availing of the benefits provided herein:

(a) The accused had made untruthful statements in his/her sworn declaration prescribed under Section 6(a); (b) The accused is a recidivist, quasi-recidivist, habitual delinquent, or has committed a crime aggravated by the circumstance of reiteration; (c) The accused had been found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of bail or release on recognizance without valid justification; (d) The accused had previously committed a crime while on probation, parole or under conditional pardon; (e) The personal circumstances of the accused or nature of the facts surrounding his/her case indicate the probability of flight if released on recognizance; (f) There is a great risk that the accused may commit another crime during the pendency of the case; and (g) The accused has a pending criminal case which has the same or higher penalty to the new crime he/she is being accused of.

Section 8. Qualifications of the Custodian of the Person Released on Recognizance. – Except in cases of children in conflict with the law as provided under Republic Act No. 9344, the custodian of the person released on recognizance must have the following qualifications:

(a) A person of good repute and probity; (b) A resident of the barangay where the applicant resides; (c) Must not be a relative of the applicant within the fourth degree of consanguinity or affinity; and (d) Must belong to any of the following sectors and institutions: church, academe, social welfare, health sector, cause-oriented groups, charitable organizations or organizations engaged in the rehabilitation of offenders duly accredited by the local social welfare and development officer.

If no person in the barangay where the applicant resides belongs to any of the sectors and institutions listed under paragraph (d) above, the custodian of the person released on recognizance may be from the qualified residents of the city or municipality where the applicant resides.

Section 9. Duty of the Custodian. – The custodian shall undertake to guarantee the appearance of the accused whenever required by the court. The custodian shall be required to execute an undertaking before the court to produce the accused whenever required. The said undertaking shall be part of the application for recognizance. The court shall duly notify, within a reasonable period of time, the custodian whenever the presence of the accused is required. A penalty of six (6) months to two (2) years imprisonment shall be imposed upon the custodian who failed to deliver or produce the accused before the court, upon due notice, without justifiable reason.

Section 10. Role of the Probation Officer. – Upon release of the person on recognizance to the custodian, the court shall issue an order directing the Probation Office concerned to monitor and evaluate the activities of such person. The Probation Office concerned shall submit a written report containing its findings and recommendations on the activities of the person released on recognizance on a monthly basis to determine whether or not the conditions for his/her release have been complied with. The prosecution including the private complainant, if any, shall be given a copy of such report.

Section 11. Arrest of a Person Released on Recognizance. – The court shall order the arrest of the accused, who shall forthwith be placed under detention, due to any of the following circumstances:

(a) If it finds meritorious a manifestation made under oath by any person after a summary hearing, giving the accused an opportunity to be heard; (b) If the accused fails to appear at the trial or whenever required by the abovementioned court or any other competent court without justification, despite due notice; (c) If the accused is the subject of a complaint for the commission of another offense involving moral turpitude and the public prosecutor or the mayor in the area where the offense is committed recommends the arrest to the court; or (d) If it is shown that the accused committed an act of harassment such as, but not limited to, stalking, intimidating or otherwise vexing private complainant, prosecutor or witnesses in the case pending against the accused: Provided, That upon the issuance by the court of such order, the accused shall likewise become the proper subject of a citizen’s arrest pursuant to the Rules of Court.

Section 12. No Release on Recognizance After Final Judgment or Commencement of Sentence; Exception. – The benefits provided under this Act shall not be allowed in favor of an accused after the judgment has become final or when the accused has started serving the sentence: Provided, That this prohibition shall not apply to an accused who is entitled to the benefits of the Probation Law if the application for probation is made before the convict starts serving the sentence imposed, in which case, the court shall allow the release on recognizance of the convict to the custody of a qualified member of the barangay, city or municipality where the accused actually resides.

When Bail is a Matter of Right:

• Before or after conviction by the MTC; and
• Before conviction by RTC for all offenses punishable by lower than death, reclusion perpetua, or life imprisonment (Rule 114, Sec. 4)

Note: Even when bail is a matter of right, the prosecutor must be given reasonable notice of the application or be required to submit a recommendation, and the court must hold a hearing to fix bail (Rule 114, Secs. 6 and 18; Mabutas v. Perello, A.M. No. RTJ-03-1817, June 8, 2005).

When Bail is a Matter of Discretion:

• Before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment, bail may be granted if the evidence of guilt is not strong; bail must be denied if the evidence of guilt is strong. The prosecution bears the burden of showing that the evidence of guilt is strong at the bail hearing (1987 Constitution, Art. III, Sec. 13; Rule 114, Secs. 7–8).
• After conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment, bail is discretionary (Rule 114, Sec. 5).

Note: Prosecution is entitled to present evidence for its denial.

In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong pursuant to § 8 Rule 114. In bail proceedings, the prosecution must be given ample opportunity to show that the evidence of guilt is strong. While the proceeding is conducted as a regular trial, it must be limited to the determination of the bailability of the accused. It should be brief and speedy, lest the purpose for which it is available is rendered nugatory. (People v. Singh, et. al., G.R. No. 129782, 2001)

The test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the court is ministerially bound to decide which circumstances and factors are present which would show evident guilt or presumption of guilt. (People v. Cabral, G.R. No. 131909, February 18, 1999).

The hearing determining the grant of bail as a matter of discretion is indispensable. Said hearing may be either summary or otherwise, in the discretion of the court.

Note: The Covid-19 Pandemic does not dispense with the need for the summary hearing to determine eligibility and the amount of bail, when such is a matter of discretion. As the petitioners are charged with offenses punishable by reclusion perpetua, bail hearing must still be conducted to determine whether the evidence of guilt is strong (In the Matter of the Urgent Petition for the Release of Prisoners on Humanitarian Grounds in the Midst of the COVID-19 Pandemic, Almonte v. People, G.R. No. 252117, 2020)

Right to Bail May Be Waived

The right to bail is personal in nature and is therefore, waivable. (Paderanga v. CA, G.R. No. 115407, 1995)

Bail in Deportation Proceedings

Aliens in deportation proceedings have no inherent right to bail. An order of deportation is not a punishment for a crime, the right to bail guaranteed by the Constitution may not be invoked by an alien in said proceedings.

The Commissioner of Immigration has the power and discretion to grant bail in deportation proceedings. The grant of bail is merely permissive and not mandatory or obligatory on the part of the Commissioner. The exercise of the power is wholly discretionary (Ong See Hang v. Commissioner of Immigration, G.R. No. L-9700, April 27, 1960).

Bail in Extradition Proceedings

If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, extradition proceedings are sui generis, and the innocence or guilt of the person detained is not in issue. A prospective extraditee seeking bail must establish by clear and convincing evidence that he or she is not a flight risk.

The right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired (Government of Hong Kong v. Olalia, G.R. No. 153675, 2007).

Notice of hearing required

Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant’s character and reputation, forfeiture of other bonds or whether he is a fugitive from justice.

In any event, whether bail is a matter of right or discretion, a hearing for the petition for bail is required. (Villanueva v. Buoaya, A.M. No. RTJ-08- 2131)

Summary of the evidence for the prosecution

When deciding a bail application that requires determining whether the evidence of guilt is strong, the court’s order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order granting or denying bail may be invalidated because the summary of the evidence for the prosecution which contains the judge’s evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense.(Cortes v. Catral, Adm. Matter No. RTJ-97-1387, 1997).

Trial court may grant bail before appeal is perfected

Whether bail is a matter of right or discretion, the trial court may grant bail and approve the amount of the bail bond before the accused has perfected his appeal, appeal being perfected upon filing of a written notice of appeal and furnishing the adverse party copy thereof.

Even if there is no notice of appeal, if the decision of the TC convicting 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.

After appeal is perfected, the trial court may still act on an application for bail while the original record has not been transmitted to the appellate court, subject to the exception stated above. Thereafter, the application must be filed with the appellate court. (Rule 114, Sec. 5, Rules of Criminal Procedure.)

If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

• Accused is a recidivist, quasi-recidivist or habitual delinquent or has committed the crime aggravated by the circumstance of reiteration;
• That he has previously escaped from legal confinement, evaded sentence or violated the condition of his bail without valid justification
• That he committed the offense while under probation, parole or conditional pardon;
• That the circumstances of his case indicate the probability of flight if released on bail; or
• That there is undue risk that he may commit another crime during the pendency of the appeal.

Bail hearing is mandatory

Although, in theory, the only function of bail is to ensure the appearance of the accused at the time set for the arraignment and trial; and, in practice, bail serves the further purpose of preventing the release of an accused who may be dangerous to society or whom the judge may not want to release, a hearing upon notice is mandatory before the grant of bail, whether bail is a matter of right or discretion.

The fact that the public prosecutor recommended bail did not warrant dispensing with the hearing. The public prosecutors recommendation of bail was not material in deciding whether to conduct the mandatory hearing or not. (Gacal v. Judge Infante, A.M. No. RTJ- 04-1845, 2011)

Where the prosecution agrees with the accused’s application for bail or forgoes the introduction of evidence, the court must nonetheless set the application for hearing. It is mandatory for the judge to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused; and the order, after such hearing, should state whether the evidence of guilt is strong; if it is strong, bail must be denied, and if it is not, bail may be granted.

The following are cases where the court may order the release on recognizance of any person under detention:

• When the offense charged is for violation of an ordinance, a light, or a criminal offense, the imposable penalty of which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in R.A. No. 6036.
• Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance.
• Where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one.
• Where a child is detained, the court shall order release on recognizance to his/her parents or other suitable person, release on bail, or transfer to a youth detention home or youth rehabilitation center. The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. (R.A. No. 9344, Sec. 35)
• In summary procedure, when the accused has been arrested for failure to appear when required. His release shall be either on bail or recognizance.

If it has been determined that the child taken into custody is 15 years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative.(R.A. No. 9344, Sec. 20)

If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following (R.A. No. 9344, Sec. 20):

• A duly registered nongovernmental or religious organization;
• A barangay official or a member of the Barangay Council for the Protection of Children (BCPC);
• A local social welfare and development officer; or
• When and where appropriate, the DSWD.

The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments. (R.A. No. 9344, Section 35-36).

Notice of application to prosecutor

Court to give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation (Rule 114, Sec. 18).

Hearing for application for bail is mandatory. Whether bail is a matter of right or discretion, there must be a reasonable notice given to or at least a recommendation sought from the prosecutor. (Mabutas v. Perello, A.M. No. RTJ-03-1817, 2005)

Duties of a judge in case an application for bail is filed

• In all cases, whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation;
• Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion;
• Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; and
• For an accused charged with an offense punishable by death, reclusion perpetua, or life imprisonment, deny bail if the prosecution shows that the evidence of guilt is strong; otherwise, discharge the accused upon the approval of the bail bond. (Te vs. Perez, AM No. MTJ-00-1286, 2002) After conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, bail pending appeal is discretionary and must be determined under Rule 114, Section 5, rather than automatically denied because guilt has been established.