Monday, May 13, 2013

THE DEVIL IN THE DETAILS OF THE RECOGNIZANCE ACT OF 2012 (Why The Requirements In Granting Release on Recognizance To An Indigent Accused May Actually Hinder His Release)

By Obiter07

For far too long, we have read about accused individuals - usually high government officials and therefore with means - being granted hospital arrest or, in the case of a former President, being placed under vacation house arrest.  This time, Congress has passed a law that will benefit an accused who is an indigent as defined under Republic Act No. 10389 entitled “AN ACT INSTITUTIONALIZING RECOGNIZANCE AS A MODE OF GRANTING THE RELEASE OF AN INDIGENT PERSON IN CUSTODY AS AN ACCUSED IN A CRIMINAL CASE AND FOR OTHER PURPOSES” or  the "Recognizance Act of 2012″. 

The Act adverts to the policy of the state to promote social justice, citing as well the principle on the presumption of innocence and the Constitution’s recognition of the “right to bail or to be released on recognizance as may be provided by law.”  The law recognizes “the right of persons, except those charged with crimes punishable by death, reclusion perpetua, or life imprisonment, to be released on recognizance before conviction by the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it, upon compliance with the requirements of this Act.” (Section 2).

What does being released on recognizance mean? Under the Act, recognizance is “a mode of securing the release of any person in custody or detention for the commission of an offense who is unable to post bail due to abject poverty. The court where the case of such person has been filed shall allow the release of the accused on recognizance as provided herein, to the custody of a qualified member of the barangay, city or municipality where the accused resides (Section 3).” Hence, an indigent accused will be allowed temporary liberty, albeit to a custodian.

Typically, an accused has to post bail in order to be given provisional liberty. Under Section 1, Rule 114 of the Rules of Court, 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.”  An indigent would normally have no ready access to a surety, to a bond or to a cash deposit.

Under Section 15 of Rule 114, “whenever allowed by law or these Rules, the court may release a person in custody oh nis own recognizance or that of responsible person.”  Prior to the Recognizance Act, release on recognizance was allowed for violation of ordinances and offenses where the penalty is not higher than arresto mayor (i.e., from one month and one day to six months) and/or a fine of P2,000 or both, for youthful offenders under P.D. No. 603 (The Child and Youth Welfare Code) and under P.D. No 968, where the defendant is unable to post bail pending resolution of a petition for probation.[1]

The court has discretion to determine whether an accused is indigent even if the salary and property requirements are not met.  It can consider the “capacity of the accused to support not just himself/herself but also his/her family or other people who are dependent on him/her for support and subsistence (Section 4).”  

However, getting released on recognizance is not that easy since it first requires a favorable resolution from the Sanggunian as approved by the Mayor.  See the requirements below:

“(a) A sworn declaration by the person in custody of his/her indigency or incapacity either to post a cash bail or proffer any personal or real property acceptable as sufficient sureties for a bail bond;

(b) A certification issued by the head of the social welfare and development office of the municipality or city where the accused actually resides, that the accused is indigent;

(c) The person in custody has been arraigned;

(d) The court has notified the city or municipal sanggunian where the accused resides of the application for recognizance. The sanggunian shall include in its agenda the notice from the court upon receipt and act on the request for comments or opposition to the application within ten (10) days from receipt of the notice. The action of the sanggunian shall be in the form of a resolution, and shall be duly approved by the mayor, and subject to the following conditions:

(1)   Any motion for the adoption of a resolution for the purpose of this Act duly made before the sanggunian shall he considered as an urgent matter and shall take precedence over any other business thereof: Provided, That a special session shall be called to consider such proposed resolution if necessary;

The resolution of the sanggunian shall include in its resolution a list of recommended organizations from whose members the court may appoint a custodian.

(2) The presiding officer of the sanggunian shall ensure that its secretary shall submit any resolution adopted under this Act within twenty-four (24) hours from its passage to the mayor who shall act on it within the same period of time from receipt thereof;

(3) If the mayor or any person acting as such, pursuant to law, fails to act on the said resolution within twenty-four (24) hours from receipt thereof, the same shall be deemed to have been acted upon favorably by the mayor;

(4) If the mayor or any person acting as such, pursuant to law, disapproves the resolution, the resolution shall be returned within twenty-four (24) hours from disapproval thereof to the sanggunian presiding officer or secretary who shall be responsible in informing every member thereof that the sanggunian shall meet in special session within twenty-four (24) hours from receipt of the veto for the sole purpose of considering to override the veto made by the mayor.

For the purpose of this Act, the resolution of the sanggunian of the municipality or city shall be considered final and not subject to the review of the Sangguniang Panlalawigan, a copy of which shall be forwarded to the trial court within three (3) days from date of resolution.

(e) The accused shall be properly documented, through such processes as, but not limited to, photographic image reproduction of all sides of the face and fingerprinting: Provided, That the costs involved for the purpose of this subsection shall be shouldered by the municipality or city that sought the release of the accused as provided herein, chargeable to the mandatory five percent (5%) calamity fund in its budget or to any other available fund in its treasury; and

(f) The court shall notify the public prosecutor of the date of hearing therefor within twenty-four (24) hours from the filing of the application for release on recognizance in favor of the accused: Provided, That such hearing shall be held not earlier than twenty-four (24) hours nor later than forty-eight (48) hours from the receipt of notice by the prosecutor: Provided, further, That during said hearing, the prosecutor shall be ready to submit the recommendations regarding the application made under this Act, wherein no motion for postponement shall be entertained. (Section 6)”

As for the good soul willing to be the custodian of the accused, he must have the following qualifications:

“(a) A person of good repute and probity;

(b) A resident of the barangay where the applicant resides;

(c) Must not be a relative of the applicant within the fourth degree of consanguinity or affinity; and

(d) Must belong to any of the following sectors and institutions: church, academe, social welfare, health sector, cause-oriented groups, charitable organizations or organizations engaged in the rehabilitation of offenders duly accredited by the local social welfare and development officer.

If no person in the barangay where the applicant resides belongs to any of the sectors and institutions listed under paragraph (d) above, the custodian of the person released on recognizance may be from the qualified residents of the city or municipality where the applicant resides. (Section 8)”

A custodian guarantees “the appearance of the accused whenever required by the court. The custodian shall be required to execute an undertaking before the court to produce the accused whenever required. The said undertaking shall be part of the application for recognizance. The court shall duly notify, within a reasonable period of time, the custodian whenever the presence of the accused is required. A penalty of six (6) months to two (2) years imprisonment shall be imposed upon the custodian who failed to deliver or produce the accused before the court, upon due notice, without justifiable reason. (Section 9)” 

RA 10389 starts out well by acknowledging the need of the State to protect the accused, qualified to be released on recognizance, from problems related to “protracted trials, prolonged resolution of cases, lack of legal representation, lack of judges, inability to post bail bond, congestion in jails, and lack of opportunity to reform and rehabilitate offenders.” (Sec. 2)  The Act, while laudable presents serious challenges for the indigent accused seeking to avail of its benefits.  Precisely because of his station in life, he may not have the resources to seek and be given attention by the Sanggunian or the Mayor, whose positive action is required for him to be released from behind bars.  In addition, it may be difficult to find anyone who would be willing to act as custodian who could very well end up in prison should the accused fail to appear before the court without justifiable reason.  God may be in the Act’s rationale but the devil is in its details.

[1] Herrera, Remedial Law, Vol. IV, 2001, pp. 414-417.


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