The Philippines incarcerates more unconvicted detainees (65%) than convicted prisoners (35%) than most countries in the world. The total population of the Bureau of Jail Management and Penology (BJMP) and Provincial Jails, which both cater to Persons Deprived of Liberty (PDL) who are undergoing trial, is higher than the total population of the PDLs housed in the Bureau of Corrections (BuCor), which caters to PDLs who are convicted and are serving their sentences. On top of these, unconvicted PDLs suffer one of the longest pre-trial incarceration in the world (an average of 3 years for capital offenses or those cases punishable with life sentences; 6 months for non-capital offenses) which pushes many of the PDLs to plead guilty just so they can be released. The major culprit for this is our iniquitous and archaic bail system. The Philippines employ an iniquitous financial bail system where the ability to post bail is based on ones' financial resources. Rich accused can post bail while poor accused languish in jail. Thus, a rich accused with a history of offending can be released on bail, while a first-time low-level offender languishes in jail because he or she is poor. Secondly, the Philippine Constitution mandates that bail is a matter of right, even for accused who had been charged of a capital offense. This means that the natural legal state should be that the accused, even if charged with a capital offense, has the right to bail and be set free. The accused will only be denied bail if the evidence of guilt is strong. The prosecution, thus, has the burden to prove that the evidence of guilt is strong and only then will the accused be placed in preventive detention. In practice, however, this Constitutional legal process is turned upside down. Individuals who are charged with capital offenses are, by default, immediately placed under preventive detention, and only through a bail petition, and a proof that the evidence is weak, can they be granted bail. This places the burden to prove that the evidence is weak to the defense. Additionally, in practice, bail hearings are done in open court, subject to lengthy delays. Empirical data shows that, on average, detained accused meet the judge only for the first time after three months and that bail petitions are decided within a year. Thus, accused detainees have suffered tremendously before they can avail of their constitutional right to bail. Furthermore, this archaic process of automatically detaining PDLs charged with capital offenses becomes an incentive for police and prosecutors to overcharge the case (from homicide to murder, for example) just to make sure the suspects are punished even if the charges are eventually dismissed by the judge, or when the judge finally acquits the accused after lengthy trial process. These iniquitous and archaic practices contribute to the human catastrophe of the Philippines having one the most congested jail system and one of the longest pretrial detention in the world. Bail reforms For the non-capital offenses, there is a need to abolish the financial bail system. In most countries in the world, a more effective and efficient non-financial bail system is instituted. Judges determine if the accused are likely to appear in court, and if they do, they are released on the “promise to appear”. Additionally, if the judges believe that the accused have a risk of flight (or jumping bail), or risk of committing a new crime and thus a threat to public safety, then the accused can be released but under the supervision of court or pre-trial release officers. There is a constitutional presumption of innocence and all those eligible are released without the need to post financial bail. This eliminates the discriminatory practice against indigent individuals. Custodial hearings There is a need to incorporate custodial hearings. In most countries in the world, accused are physically brought in front of judges, mostly within 48 to 72 hours upon arrest, for a custodial hearing. A magistrate judge will immediately determine if the arrest is legal, and if the accused warrants continuing detention. The magistrate judge, as a judicial authority, exercises professional discretion whether to release an individual, even when being investigated by the police and prosecutors, or to keep the accused under preventive detention. The criteria for preventive detention, as mentioned earlier, is dangerousness: that is, the risk of flight and threat to public safety. Thus, a high proportion of the accused are released while undergoing pre-trial investigation and pre-trial detention is used only as a last resort. Less than 10 percent are preventively detained. The Revised Penal Code mandates this legal process but seldom is this practiced. Instead of judges, current inquest procedures provide for prosecutors to determine the legality of police arrest, and if probable cause is established, the prosecutors will recommend the filing of charges and the continuing detention of the suspect, even if the suspect is not a flight risk. The prosecutor also recommends the amount of bail (for non-capital cases), which is based on the Bail Bond Guide of 2018, where the bail amounts are usually beyond the reach of most indigent accused. The default situation, even for indigent accused with non-capital offenses, is detention. Furthermore, as mentioned, the empirical data shows that the accused will have to wait for the case be raffled to a judge, and the judge will set a date for a pretrial hearing and arraignment, to be given the opportunity to file a motion to reduce the bail amount (for non-capital offenses) or to file a petition for bail (for capital offenses). Given the court docket congestion, most accused will have the opportunity to meet the judge for the first time only after at least three months of incarceration. Conclusion A custodial hearing will mandate magistrate judges to immediately review the legality of arrest and determine if continuing detention is warranted within the 48 to 72 hours of arrest. Coupled with the abolition of the financial bail system, the magistrate judges can release an accused based on the promise to appear, or if the accused posed risk of flight, release the accused with supervision. The constitutional right to be presumed innocent is thus observed. Magistrate judges will use preventive detention only as a last resort: for those individuals who are flight risk and those who posed a threat to public safety. Empirical studies suggest that this will no more than 10 percent of the total population. By adopting these reforms, the Philippines can move towards a more equitable and efficient justice system, significantly reducing pre-trial detention and alleviating the congestion in its jails. Such changes would not only improve the conditions for detainees but also enhance the overall fairness of the legal process.
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