The right to bail in the time of Covid-19

By Atty. Eduardo T. Reyes III

For those of us who are tucked in our homes waiting for the appointed time to receive inoculation against the much dreaded Covid-19 that still has not ebbed from our lives the paranoia is getting ahold of us.

Normal life activity had been dreadfully stymied by restrictions which government regulators had imposed as well as those self-imposed in our own households and offices arising from our fear of this covert enemy that had insidiously come upon us as a bane.

But nothing could compare to what Persons Deprived of Liberty (PDLs) are experiencing as they are crammed in cramped prison cells with hardly any access to humane ventilation. The irony is sharp in so far as these PDLs are concerned because their movement is already restricted and yet physical-distancing is almost an impossibility.

This reality brings to the fore the constitutional right of every person detained for a crime to invoke his/ her entitlement to bail while the case is still being litigated.

This is enshrined in Section 13, Article III of the 1987 Constitution which states that:

“SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.” 

In the recent case of The People of the Philippines v. Ramon “Bong” Revilla, Jr., Richard A. Cambe and Janet Lim Napoles, G.R. No. 247611. January 13, 2021, the Supreme Court explained that there is a distinction as to the availment of bail before conviction and after because once conviction had been handed down, bail is no longer a matter of right but is dependent upon the court’s discretion. And yet, precipitated by the surge of Covid-19 infections worldwide, the international community had made a clarion call for the “temporary release of PDLs due to COVID-19” which entreaty is founded on “The Nelson Mandela Rules”.

What are the parameters of these rules?

Still in People of the Philippines v. Ramon “Bong” Revilla, Jr., Richard A. Cambe and Janet Lim Napoles, it was held that the release of PDLs cannot be indiscriminate. But first, the purpose behind these rules, thus: 

“The revised United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) contain the universally acknowledged minimum standards for the management of prison facilities and the treatment of prisoners. With respect to the healthcare and wellness of PDLs, it provides, inter alia, that PDLs who require specialized treatment or surgery should be transferred to specialized institutions or to civil hospitals; that every prison should have a health-care service tasked with evaluating and improving the physical and mental health of PDLs; and PDLs who are suspected of having contagious diseases be clinically-isolated and given adequate treatment during the infectious period. Ultimately, the PDLs’ access to health care is a State responsibility, thus:  

RULE 24 

1.The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status. X x x

Indeed, it is a State responsibility to ensure that prisoners are accorded the health care standards “that are available to the community” such that access to health care must not be anything less just because a person is a PDL.

But the question that begs to be asked is: will this State obligation spur the release of all PDLs while the pandemic is still surging?

On this score, case law again qualifies.

For PDLs who have not yet been convicted by the trial court, the international community’s request for the “temporary release of PDLs due to COVID-19” in tandem with the  “Nelson Mandela Rules”, seem to suggest to make it a policy consideration to grant bail in order to decongest the jailhouses. However, the Supreme Court clarified in People of the Philippines v. Ramon “Bong” Revilla, Jr., Richard A. Cambe and Janet Lim Napoles, that there are recognized exceptions which would allow for courts to deny bail. Thus:

“On the other hand, the release of PDLs in foreign jurisdictions as a response to COVID-19 is restricted and unavailing to high-risk inmates or those who are considered a danger to the society. While it is time that several countries have implemented release programs for prisoners to prevent the spread of COVID-19 virus, these initiatives are subject to exceptions. In Afghanistan, the members of Islamist Militant Group are not included. In Indonesia, those released were mostly juvenile offenders and those who already served at least two-thirds of their sentences. In Iran, only low-risk and non-violent offenders serving short sentences are released. In Morocco, the prisoners were selected based on their health, age, conduct, and length of detention, and were granted pardon. In United Kingdom, high-risk inmates convicted of violent or sexual offenses, or of national security concern, or a danger to children were excluded. It must be stressed that the release of prisoners in other jurisdictions was made upon the orders of their Chief Executives. (The People of the Philippines v. Ramon “Bong” Revilla, Jr., Richard A. Cambe and Janet Lim Napoles, G.R. No. 247611. January 13, 2021).

In sum, the Supreme Court ruled that while it is a strong policy consideration to release PDLs on account of the surging pandemic, yet such is addressed to the power of the Chief Executive or the President (not necessarily the courts) and is not absolute as to grant bail to all PDLs. Applying our own laws and rules, it held that once a person had been convicted by the trial court, this policy consideration will not be feasible anymore just like in the many recognized exceptions in other countries.

            Truly, the challenges that we are all facing amid this pandemic always involve choosing between two equally important considerations: it could be our life against our livelihood; or it may be by keeping society safe through the continued detention of PDLs or giving them temporary liberty so that they will be safe from one another.

Yet still, it could be the life-long moral dilemma of sacrificing one good thing in favor of the right one.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).