Jessica Lucila "Gigi" Reyes, the former Chief of Staff of former Senate President Juan Ponce Enrile and a co-accused in the multi-million peso "Napoles pork barrel scam" had stayed in pre-trial detention for 6 years, 7 months, and counting. She petitioned the Philippine Supreme Court to release her from detention due to "violations of her right to due process" and to "speedy, impartial and public trial." She also claims that others more powerful than her, such as Senators Enrile, Jinggoy Estrada, and Bong Revilla, who also played critical roles in the scam, had already been released-- either through bail or acquittal. She also claims that she had been suffering from multiple health problems that were caused or aggravated by her incarceration in the dilapidated over-congested jail facilities.
Gigi Reyes' case is a tragic example of the prolonged pretrial detention in the Philippines. Data from my empirical study of 6 Metro Manila Jails suggests that persons deprived of liberties (PDLs) who are still presumed innocent, and in the process of determining guilt or innocence, stay in detention for an average of 529 days before their cases are decided upon. The data further suggests that the top 20 percent of the cases register an average stay of 5 years or more. Indeed, there are a number of PDLs who had stayed in detention for more than 15 years, only to be found innocent of the charges filed against them.
Prolonged pretrial detention has perverted the processes and dynamics of the Philippine Criminal Justice System. It has made denial or grant of bail the most important decision point, more important than findings of guilt or innocence.
In the Philippines, the Constitution mandates that bail is a matter of right except for those charged with capital offenses and when the evidence of guilt is strong. Thus, accused who are charged with capital offenses are automatically held in detention as "non-bailable" and a petition for bail hearing has to take place in order to determine whether the evidence of guilt is weak or strong. Based on the same study of the 6 jails, on average, bail hearings takes at least 120 days, and in some cases can drag up to 3 to 6 years. Our experiences in the Community Bail Bond program also suggest that defense lawyers usually do not invoke the petition for bail as it "only prolongs the case" and it is "almost futile" since most of the indigent accused cannot post the amount of bail should their bail petition be even granted.
More harrowingly, when the accused is denied bail and undergoes the full length of the trial proceedings, the key problem is the postponement of the piecemeal hearings. In separate analysis of the Bureau of Jail Management and Penology (BJMP) Alpha List of PDLs, hearings come once every 2 to 3 months, only to be postponed. In one full year, PDLs can have 4 to 6 hearings scheduled, with only 1 or 2 hearings pushed through. This is especially true for drug cases. Thus, after languishing in jail for 2 to 3 years, most PDLs simply plead guilty to a lower offense in order to be released. Thus, they are transformed "from prisoners that were never convicted, to convicts that were never tried." What a sorry state, indeed.
My continuing research among criminal justice actors show that reasons from postponement can be grouped into three main categories: structural, organizational and cultural. Postponements based on structural reasons include: lack of equipment (say, lack of computers and internet access for online hearings), lack of jail personnel to bring PDLs to court, lack of judges, prosecutors and lawyers, and other vacancies in offices, and lack of resources in general. In my study, structural postponements lead to "inadvertent delays."
Organizational reasons of postponements include failure of coordination among agencies, such as police and jail officers not able to receive notice of hearings from the court, courts over-scheduling of hearings in a day, that is, scheduling more than 20 hearings in a day, which naturally leads to the "lack of material time" for the other accused, and many other lapses in managing the court and jail dockets. Organization postponements lead to "unnecessary delays."
Cultural reasons of postponements are the most pernicious: they are part and parcel of the litigators' techniques to win a case, generate income, and indirectly and informally punish the accused. Prosecutors and defense lawyers ask for postponements to wear out the witnesses of the other party-- waiting for the witnesses to move out of the country, die, or simply get disinterested. Additionally, in the Philippines, lawyers make money per "appearance" regardless of whether a hearing is pushed through or postponed.
Thus, there are very limited incentives for the speedy disposition of cases. Prosecutors are usually content in prolonged trials as long as the accused is detained; defense lawyers, on the other hand, are content with prolonged trials as long as the accused is bailed out--what is important is that they "regularly collect their fees." Thus, judges' role to take command of the proceedings, to make sure that there are no frivolous postponements allowed, becomes very important. This translate to a "court culture of efficiency" where judges establish strict schedules, penalize litigators attempt to delay, and model a behavior of being on time and being morally incorruptible. However, if judges become lenient, and allow postponements as "professional courtesy" to the companyeros and companyeras making money, a "culture of leniency" emerges where prosecutors and defense lawyers use all the legal gobbledygook available in the rules of criminal procedures to request for postponements and delay proceedings. This ultimately renders the Constitutional provision and the Speedy Trial Act for the "speedy trial" and "speedy disposition of cases" toothless.
Thus, interviews among PDLs and jail officers show that "courts so and so" are "court bagal-bagal" or "court dugay-dugay" (in Bisaya). They have the reputation of being slow and corruptible, commonly known among PDLs as "judge napapakiusapan." In my study, cultural postponements lead to "purposeful delays."
Thus, the key decision point is whether a case is bailable or not. Police officers and prosecutors usually find all the legal loopholes that make a case non-bailable: A homicide case becomes a murder case, a simple theft becomes a qualified theft, acts of lasciviousness becomes rape, a section 16 (drug use) becomes a section 5 (drug sell), etc., just to make sure that the accused will be automatically denied bail and then to simply let the courts decide, much later in the proceedings, whether to grant bail or not. Thus, the filing of the "nature of charges" (homicide vs murder) and the succeeding grant or denial of bail is a weaponized tool of the different dispensers of political power in the Philippines. This has happened against Gloria Macapagal Arroyo during PNoy's presidency and manifested also by the current detention of Senator Leila De Lima. It is beyond partisan--the dominant political party systematically uses it against the opposition, and when the opposition is in power, it will do just the same. What is good for the goose is good for the gander.
The Supreme Court should rise beyond the politicization and weaponizing of the bail hearings and use of pretrial detention. The Supreme Court should allow Gigi Reyes to be released on bail.
More importantly, the Supreme Court should also allow all the accused languishing in decrepit jails nationwide who had stayed in jail for 3 years, if accused in Regional Trial Courts (RTC), and 6 months, if accused in Metropolitan Trial Courts (MTC), as advised in the Task Force Katarungan and Kalayaan (TFKK), which was created by the Supreme Court itself.
Gigi Reyes is still presumed innocent, as enshrined in the 1987 Philippine Constitution. If she is guilty, then let the lower court find her guilty. Let the prosecutors establish the evidence of her guilt. There must be a marathon hearing, upon her release, to determine guilt or innocence, and to immediately re-arrest her and send her to the Correctional Institution for Women, if she is guilty. For indeed, we cannot allow public officials to plunder governmental funds. The truly criminals must be properly punished.
But for Godsake, while she is still presumed innocent, she should be immediately released.
The manner of release can be through "supervised released." She can be monitored by a custodian, with a condition to appear in court, and to not engage in a new crime. She can be held on house arrest, with limitations on her movement, and she could be made to attend rehabilitation programs.
Our Community Bail Bond program, which bails out PDLs, shows that when properly monitored and supervised, PDLs show up in court voluntarily and do not attempt to jump bail. PDLs can find employment, be responsible members of the community, and contribute to the social fabric of the society, even when they are accused of a crime. When convicted, they can surrender and face the legal and moral consequences of their criminal actions.
The Supreme Court should not turn a blind eye on this continuing social and criminal justice malady. The Supreme Court should institute structural, organizational, and cultural reforms to address the problems of prolonged pretrial detention that had been weaponized and politicized by the dispensers of political power. The current efforts of Chief Justice Diosdado Peralta and Office of Court Administrator Midas Marquez where they introduced the "Continuous Trial," "Justice Zones," and "Task Force Katarugan and Kalayaan" must be supported by the trial judges, prosecutors and defense lawyers. This is the only way to improve the legitimacy of the Philippine Criminal Justice System.
My research and ongoing advocacy do suggest that if courts and other criminal justice actors are innovative, if they view the situation with an open heart and mind, and if they are ready to try new mechanisms outside the box, as exemplified by many court actors I have worked with, there are multiple ways to address this endemic problem.
And we, the people, should support all our criminal justice actors who painstakingly perform their jobs despite the threats in their personal and family safety. They are putting their lives and limbs in the line of duty daily. For if they succeed, we all reap the benefits of a safe society.
PS. I was once accused of a crime I did not commit and suffered almost seven years of pretrial detention. I was eventually found innocent by the Regional Trial Court. Thus, I know firsthand the harrowing emotional and psychological impact of prolonged trial detention in overcrowded jail centers.
I am making this appeal on behalf of all those currently suffering from prolonged pre-trial detention. This is not a partisan or political statement but rather an urgent appeal to make our criminal justice system fair, efficient and equitable.
Photo taken from msn.com
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