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.
No comments:
Post a Comment