ANNOTATION

THE RIGHT TO BAIL

By
ALICIA GONZALEZ-DECANO*
___________________
 
§ 1. Preliminary Statement, p. 613
§ 2. Forms of Bail, p. 615
§ 3. Purposes of Bail, p. 616
§ 4. Provisions of the Constitution on Bail, p. 616
§ 5. Right to bail before the filing of charges, 617
§ 6. Conditions of the bail: Requirements, p. 617
§ 7. Relevant Cases, p. 620
___________________
§ 1. Preliminary Statement
Patrick Henry boldly said: “Give me death or give me
liberty!” Liberty is priceless right of an individual without
which one is deemed doomed in a dungeon with not even a
ray of light.
Accused persons are granted the right to bail before
conviction by the Constitution except if charged with
offenses punishable by reclusion perpetua when the
evidence of guilt is strong. Such a right flaws from the
presumption of innocence

_______________

*  Retired Judge, Professorial Lecturer IV and Consultant (Law and

Political Science Cluster, UST Graduate School) and Dean, College of Law
& Law Professor, Pan Pacific University North Philippines (PUNP),
Urdaneta City.

614

614 SUPREME COURT REPORTS ANNOTATED

The Right to Bail

in favor of every accused who should not be subjected to the

loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable
doubt, thereby a regime of liberty is honored in the
observance and not in the breach. It is not beyond the
realm of probability however, that a person charged with a
crime, especially so where his defense is weak, would just
simply make himself scarce and thus frustrate the hearing
of his case. A bail is intended as a guarantee that such an
intent would be thwarted. (De la Camara vs. Erage, 41
SCRA 3, 19 cited by Pamaran, Criminal Procedure, 1985,
2001 edition, Central, p. 212.)
Before delving into an exhaustive analysis of the right to
bail, the writer deemed it imperative to give a definition of
Bail.
Bail defined. Rule 114 of the 1985 Rules on Criminal
Procedure as amended defines bail in this wise:

“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.”

Bail is the surety himself. This is the original sense of

the term bail. In ancient law, if the accused absconded, the
bail might suffer in his place, since he was in effect a
hostage. (Sibal, Philippine Legal Encyclopedia, 1986,
Central, p. 74)
Where a case is carried from a lower to a higher
jurisdiction in appeal of writ of error, bail for costs must be
given, and not infrequently it must be given to secure also
the debt or damage recovered in the lower jurisdiction in
case the judgment there should be sustained.
The defendant is usually entitled to be set at liberty in
giving bail unless charged with committing an offense
punishable by death and in some places and under some
circumstances even in such cases, the amount of bail is
fixed by the judge having jurisdiction.
615

VOL. 647, APRIL 11, 2011 615

The Right to Bail

Bail. Is the guaranty that a person arrested on a

criminal charge will appear for trial or examination when
duly required, if he is temporarily released. The guaranty
may take the form of an undertaking of a personal surety
that he will either produce the accused or forfeit a fixed
sum of money. Or it may take the form of a deposit of
money to be returned on the appearance of the bailed
person.
 The accused is assumed to be under the direct custody of
the bailer who might arrest and surrender him if there is a
danger of failing to appear. (Sibal, supra)
§ 2. Forms of Bail
Bail may be given in the form of corporate surety,
property bond, cash deposit or recognizance. (Section 1,
Rule 114, Criminal Procedure, supra)
Cash bond is a sum of money, in the amount
designated in an order fixing bail, posted by a defendant or
another person in his behalf, with a court or other
authorized public officer upon condition that money be
forfeited if the defendant does not comply with the order of
the court requiring his attendance. (Black’s Law
Dictionary, 5th edition)
Recognizance is a contract between the sureties and
the state for the production of the principal at the required
time. It is an obligation of record, entered into before some
courts or magistrates duly authorized to take it, with the
condition in criminal cases being the appearance of the
accused for trial. (People vs. Abner, 87 Phil. 566)
Corporate surety bond is one issued by a professional
bondsman, that is one who is habitually engaged in the
business of furnishing bonds in civil actions or for persons
arrested or detained for prosecution.
Property bond is an undertaking constituted as a lien
on the real property given as a security for the amount of
the bail. (Section 8, Rule 114)

616

616 SUPREME COURT REPORTS ANNOTATED

The Right to Bail

§ 3. Purposes of Bail
Bail is never required by way of punishment or denied
for the purpose of punishing a person accused of crimes;
nor is it the functions of bail to prevent or license the
commission of crime. (8 CJ 558) Admission to bail gives full
fealty to the basic principles of freedom, interest in our
system, that an accused is presumed to be innocent until
his guilt is established by evidence beyond reasonable
doubt; it reconciles sound administration of justice with the
right of the accused to be free from harassment and
confinement, unhampered in the preparation of his defense
and not subject to punishment prior to conviction. (Dudley
vs. United States, 242 F. 2d 565 cited by Pamaran, supra)
§ 4. Provisions of the Constitution on Bail
 Under the 1987 Constitution, Article III, Section 3
reads:

“All persons shall, 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.”

Source of right to bail is a constitutional right, its denial

to an accused is allowed only in rare cases.
If there were any mode of confinement which would with
reasonable certainty ensure the attendance of the accused
to answer the accusation, it would not be justifiable to
inflict upon him that indignity, when the effect is to subject
him in a greater or lesser degree, to the punishment of a
guilty person, while as yet it is not determined that he has
committed any crime. (Cooley, Constitutional Limitations,
643-644, cited by Pamaran, supra)
Limitations on the Right to Bail.—The constitutional
mandate cited above is subject to the limitations that the
person applying for bail should be in custody of the law, or
otherwise deprived of his liberty. (Mendoza vs. CFI of
Dagu-
617

VOL. 647, APRIL 11, 2011 617

The Right to Bail

pan City, 515 SCRA 369; Pico vs. Combong, Jr., 215 SCRA
421) Moreover, the right to bail only accrues when a person
is arrested or deprived of his liberty.
§ 5. Right to bail before the filing of charges
A person taken into custody of the law is entitled to bail
even before the complaint or information is filed against
him. Indeed, if the right to bail protects those already
charged under a formal complaint or information, there
seems to be no legal reason for denying its benefits to one
as against whom the proper authorities may not even yet
conclude that there exists sufficient evidence of guilt.
(Herras Teehankee vs. Rovira, 75 Phil. 634)
§ 6. Conditions of the bail: Requirements
Section 2 of Rule 114 of 1985 Rules on Criminal
Procedure provides: “All kinds of bail are subject to the
following conditions:
a. The undertaking shall be effective upon
approval, and unless cancelled, shall remain in
full 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 condi-
618

618 SUPREME COURT REPORTS ANNOTATED

The Right to Bail

tions required by this section. 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.”
Conditions set out in the Rules, Exclusive.—The
conditions provided for in Section 2, Rule 114, apply ex
proprio vigore in all kinds of bail whether or not the same
were expressly stipulated in the undertaking. Conversely,
additional obligations other than those set out in the law
cannot be imposed. To permit the imposition of obligations
upon the defendant in criminal actions and upon his
bondsman, for the purpose of securing his liberty under
bail, other than those provided for by law, might result in
the imposition of conditions which would absolutely
prevent and render it impossible for the defendant to
secure his liberty during the trial, notwithstanding the fact
that he is entitled to his liberty as a matter of right.
(Bandoy vs. Judge, the Court of First Instance, 14 Phil. 620,
cited by Pamaran, supra)
Bail as a matter of right; exception.—Section 4 of
Rule 114 of the 1985 Criminal Procedure as amended
provides: “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.”
Bail is a matter of right when the offense charged is not
punishable by death, reclusion perpetua or life
imprisonment.
Bail is a matter of discretion on the following instances:
  (a) upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua or life
imprisonment; and (b) if the decision of the Regional Trial
Court convicting the accused change the nature of the
offense from non-bailable to bailable, that is, being
originally charged before
619

VOL. 647, APRIL 11, 2011 619

The Right to Bail

the trial court with the crime of murder, the court

convicted him for homicide. (Pamaran, supra)
When bail may be denied or cancelled. Bail may be
denied:
a. If the penalty imposed by the trial court exceeds six
(6) years of imprisonment; and
b. When upon showing by the prosecution with notice
to the accused of the following and other similar
reasons:
(1) That he is a recidivist, quasi-recidivist or
habitual delinquent or has committed the crime
aggravated by the circumstances of reiteration;
(2) That he has previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail with valid justification;
(3) That he committed the offense while under
probation, parole or conditional pardon;
(4) That the circumstances of his case indicate the
probability of flight if released on bail; or
(5) There is undue risk that he may commit
another crime during the pendency of the
appeal.
(Sec. 5, Rule 114, 1995 Criminal Procedure as amended)
Amount of Bail: guidelines.—Section 9 of Rule 114 of
the 1985 Criminal Procedure as amended enumerates the
guidelines in the granting of Bail in this manner: “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 facts:
 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;
620

620 SUPREME COURT REPORTS ANNOTATED

The Right to Bail

f. Weight of the evidence against the accused;

g. Forfeiture of other bail;
  h. The fact that the accused was a fugitive from
justice
 when arrested; and
i. Pendency of other cases where the accused is on bail.
Excessive bail shall not be required.”
§ 7. Relevant Cases  
1. In the case of People vs. Tuppal, G.R. Nos. 137982-
85, January 13, 2003, 395 SCRA 72, the Supreme Court
held:

  “x x x It is settled that the assessment of the prosecution

evidence presented during bail hearings in capital offenses is
preliminary and intended only for the purpose of granting or
denying applications for the provisional release of the accused.”

2. In another case of Serapio vs. Sandiganbayan, G.R.

No. 148468, G.R. No. 148769, and G.R. No. 149116, all
dated January 28, 2003, 396 SCRA 443 The Supreme Court
ruled:

“x x x Thus, upon an application for bail by the person charged

with a capital offense, a hearing thereon must be conducted,
where the prosecution must be accorded an opportunity to
discharge its burden of proving that the evidence of guilt against
an accused is strong. The prosecution shall be accorded the
opportunity to present all the evidence it may deem necessary for
this purpose. When it is satisfactorily demonstrated that the
evidence of guilt is strong, it is the court’s duty to deny the
application for bail. However, when the evidence of guilt is not
strong, it becomes a matter of right. x x x”

3. Still in another case, Magsucang vs. Judge Balgos,

A.M. No. MTJ 02-1427, February 27, 2003, 398 SCRA 159,
the Highest Tribunal mandated:
 “x x x The amount of bail should be reasonable at all times.
Excessive bail shall not be required. In implementing this
mandate, regard should be taken of the prisoner’s pecuniary
circumstances. That which is reasonable to a man of wealth may
be unreasonable to

621

VOL. 647, APRIL 11, 2011 621

The Right to Bail

a poor man charged with a like offense. Where the right to bail
exists, it should not be rendered nugatory by requiring a sum that
is excessive. The amount should be high enough to assure the
presence of defendant when required but not higher than is
reasonably calculated to fulfill this purpose. x x x”

4. The case of Rosalia Docena-Caspe vs. Judge Arnulfo

Bugtas, A.M. No. RTJ 03-1767, March 28, 2003, 440 SCRA
37 showed that:

“x x x Jurisprudence is replete with decisions on the procedural

necessity of a hearing whether summary or otherwise, relative to
the grant of bail especially in cases involving offenses punishable
by death, reclusion perpetua or life imprisonment, where bail is a
matter of discretion. Under the present rules, a hearing is
required in granting bail whether it is matter of right or
discretion. It must be stressed that the grant or the denial of bail
in cases where bail is a matter of discretion hinges on the issue of
whether or not the evidence of guilt of the accused is strong is a
matter of judicial discretion which remains with the judge. In
order for the latter to properly exercise his discretion, he must
first conduct a hearing to determine whether the evidence of guilt
is strong. x x x”

5. The case of Yap vs. Inopiquez, A.M. No. MTJ-02-

1431, May 3, 2003, 403 SCRA 141 likewise reiterated the
provisions of Section 14, Rule 114 of the Revised Rules of
Criminal Procedure as amended which provides that if the
accused is arrested in a province, city or municipality other
than where the case is pending, bail may be filed with any
RTC of said place, or if no judge thereof is available, with
any metropolitan trial judge, municipal trial judge or
municipal circuit trial judge or municipal circuit trial judge
therein. Criminal Case No. 9458 against Antonio Laurente,
Jr. was filed with the MTCC of Ormoc City but he was
arrested in MATAG-OB, Leyte. Since there was no RTC in
Matag-Ob, respondent judge, as Presiding judge of MCTC,
Kamanga-Matag-Ob, was then authorized under Rule 114
 to approve the bail of Antonio Laurente, Jr and order his
release.  x x x
622

622 SUPREME COURT REPORTS ANNOTATED

The Right to Bail

6. In Taborete vs. Sollesta, A.M No. MTJ 021388,

Aug.13, 2003, 408 SCRA 602, the Supreme Court reiterated
the doctrine laid down in Cortes vs. Catral, A.M No. RTJ
97-138, Sept. 10, 1997, 279 SCRA 1, which reads:

“x x x The following are the rules outlining the duties of a judge

in case of application for bail is filed:

1. 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. (Section 18, Rule 114 of the Revised
Rules of Court, as amended);
2. When bail is a matter of discretion, conduct a
hearing of the application for bail regardless of
whether or not the prosecution refuses to prevent
evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to
exercise its sound discretion. (Sections 7 & 8, Rule
114)
3. Decide whether the guilt of the accused is strong
based on the summary of evidence of the prosecution;
4. If the guilt of the accused is not strong, discharge the
accused upon the approval of the bailbond. (Section
19, Rule 114, otherwise the petition should be denied.)
——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights reserved.