A broken bail system

The plight of detained former senator Leila de Lima shows the need for reforms in our criminal justice system. She has been detained for over five years already and on Sunday morning became a hostage of an Abu Sayyaf detainee.

I’m not going to delve into whether or not the charges against De Lima should still stick despite the recanted testimonies of the supposed witnesses against her. The charges are still in court and we each have our opinion about her plight. She likewise has had her share of trolls and high-profile bullies who spew all sorts of bad things about her.

Like I said, I’m not going to delve into that. While local and foreign delegations have called for De Lima’s release saying she has been a victim of vindictive prosecution, her case also highlights the need for reforms in the way we treat accused individuals in this country.

The Constitution is clear: No person shall be deprived of life, liberty or property without due process of law. Corollary to this, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.

But our laws also allow pre-trial detention and detention while on trial. Although the Constitution permits the posting of bail, not all can avail of such right --particularly those charged with serious offenses punishable by more than 20 years imprisonment “when the evidence of guilt is strong.” In the latter case, it does not mean that bail could no longer be availed of. But it is now up to the court if it will grant bail on the basis of the strength of the evidence prior to a full-blown trial.

The problem is that the law on bail is being interpreted strictly against the accused. The way I read Section 13, Article 3 of the Constitution on the right to bail, it should be understood in the light of the presumption of innocence principle also contained in Article 3. Meaning, courts should not solely use the “evidence of guilt is strong” criterion in deciding whether or not to allow bail in cases involving serious charges.

In fact, the Supreme Court has allowed bail to be posted by an elderly detainee on account of his fragile health, and that he is not a flight risk (Enrile vs. Sandiganbayan). The Supreme Court in the same case even said: “The strength of the Prosecution's case, albeit a good measure of the accused’s propensity for flight or for causing harm to the public, is subsidiary to the primary objective of bail, which is to ensure that the accused appears at trial.” We should categorically ink this into law or into the rules of court.

How many accused individuals are being denied their freedom even if they are not flight risks? With today’s modern technology, why can’t we allow electronic monitoring in lieu of detention for individuals who do not pose a direct threat to the community?

Accused individuals are presumed innocent until proven guilty, yet we treat them like they are convicted criminals. Even if they pose no danger or aren’t flight risks, in many instances they are handcuffed and made to wear orange or yellow prisoner clothes. They are subjected to all sorts of indignities including detention in cramped jail cells.

Instead of conveniently imposing the highest restriction of detention against individuals presumed innocent, we should be developing a law enforcement mechanism that is beyond reproach. That’s the best way to ensure that a person accused of a criminal offense will face trial and will be available for punishment if convicted.