1

MODULE 7

SEVENTH WEEK

BAIL

Bail is the security given for the release of a person in custody

of the law, furnished by him or by a bondsman, to guarantee his
appearance before any court as required under certain specified
conditions. (Sec. 1, Rule 114, Rules of Court)

It is the security given for the temporary release of a person

who has been arrested but whose guilt has not yet been proven in
court beyond reasonable doubt.

Constitutional basis of the right to bail

1. The right to bail is a constitutional right.

“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
suspended. Excessive bail shall not be required. (Sec. 13, Art. III,
1987 Constitution)

2. The right to bail emanates from the accused’s constitutional right

to be presumed innocent.

3. The Constitution lays down the following fundamental tenets on

bail:
(a) All persons, charged before their conviction for a criminal
offense, shall be entitled to bail. This is the general rule.
(b)The suspension of the privilege of the writ of habeas corpus
does not impair the right to bail.
(c) Excessive bail is not to be required.

1. The Constitutional provision on bail is substantially reiterated

in the Rules of Court:
“No person charged with capital offense, or an offense
punishable by reclusion perpetua or life imprisonment,
shall be admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal prosecution.”
 2

2. A person shall, before conviction, be accorded the right to bail,

unless he is charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, and the
evidence of guilt is strong.

3. The amount of bail should be high enough to assure the

presence of the accused when so required, but it should be no
higher than is reasonably calculated to fulfill this purpose.

Case: People vs. Hu Ruey Chun, G.R. No. 158064, June 30,
2005

Case: Jimenez vs. Court of Appeals. G.R. No. 178607, December

5, 2012

Case: Ocampo vs. Abando, G.R. No. 176830, February 11, 2014

Case: People vs. Jalosjos, G.R. No. 132875-76, February 3, 2000

Case: Enrile vs. Sandiganbayan, G.R. No. 213847, August 18,

2015

Bail when a matter of right; Exceptions

The general rule is that all person in custody shall be admitted

to bail as a matter of right.
Bail is a matter of right in the following situations:
(a) Before conviction by the Metropolitan Trial Court, Municipal
Trial Court, Municipal Trial Court in Cities or Municipal
Circuit Trial Court;
(b)After conviction by the courts mentioned in letter “a”;
(c) Before conviction by the RTC of offense not punishable by
death, reclusion perpetua or life imprisonment.

When a matter of discretion

Bail is a matter of right before conviction by the RTC of an

offense not punishable by death, reclusion perpetual or life
imprisonment. But when the accused has been convicted in the RTC
of an offense not punishable by death, reclusion perpetua or life
imprisonment. But when accused has been convicted in the RTC
of an offense not punishable by death, reclusion perpetua or
life imprisonment, the admission to bail becomes
discretionary.
 3

Case: Pareja vs. Gomez, G.R. No. L-18733, July 31, 1962

Case: Jorda vs. Judge Bitas, A.M. No. RTJ-14-2376, March 5,

2014

Case: Leviste vs. Court of Appeals, G.R. No. 189122, March 17,
2010

Hearing of Application for Bail in Capital Offenses

In the hearing of the application for bail when a person is in

custody for the commission of an offense punishable by death,
reclusion perpetua, or life imprisonment, the prosecution has the
burden of showing that the evidence of guilt is strong. The hearing
shall be summary.

Guidelines in Fixing Amount of Bail

1. Excessive bail shall not be required.

2. The judge who issued the warrant or who granted the

application for bail shall fix a reasonable amount of bail considering
primarily, but not limited to the following:

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;
f. weight of the evidence against the accused;
g. probability of the accused appearing at the trial;
h. forfeiture of other bail;
i. the fact that the accused was a fugitive from justice when
arrested; and
j. pendency of other cases where the accused is on bail.

1. If accused does not have the financial ability to post the amount
of bail that the court initially fixed, he may move for his
reduction, submitting for that purpose such documents or
affidavits as may warrant the reduction he seeks.
2. The order fixing the amount of bail is not appealable.

Case: Cenzon vs. Judge Abad Santos, G.R. No. 164337 June 27,
2006

Bail When Not Required

 4

1. Generally, bail is not required when the law or the Rules of

Court so provide.

2. When a person has been in custody for a period equal to or

more than the possible maximum imprisonment prescribed for the
offense charged, he shall be released immediately, without prejudice
to the continuation of the trial or the proceedings on appeal. Also, if
the maximum penalty to which the accused may be sentenced is
destierro, he shall be released after 30 days of preventive
imprisonment.

3. In cases filed with the MTC or MTCC for an offense

punishable by imprisonment of less than four years, two months and
one day, and the judge is satisfied that there is no necessity for
placing the accused under custody, he may issue summons instead of
warrant of arrest.
4. Subject to certain exceptions, bail shall not be required if a
person is charged with a violation of a municipal or city ordinance,
light felony and or a criminal offense, the prescribed penalty of which
is not higher than 6 months imprisonment or a fine of 2k or both
where it is established that he is unable to post the required cash or
bail bond.

Increase or Reduction of Bail

Even after the accused is admitted to bail, the amount of bail
may either be increased or reduced by the court upon good cause.

The increased amount must be given within a reasonable

period if the accused wants to avoid being taken into custody.

Case: San Miguel vs. Judge Maceda, A.M. No. RTJ-03-1749,

April 4, 2007

Forfeiture and Cancellation of Bail

One of the conditions of the bail is for the accused to appear

before the proper court or whenever required.

When his presence is required, his bail shall be declared

forfeited. The bondsmen shall be given 30 days within which to
produce their principal and to show cause why no judgment should
be rendered against them for the amount of bail.
The bondsmen must, within the period:
a. Produce the body of their principal or give the
reasons for his non-production; and
 5

b. Explain why the accused did not appear before the

court when first required to do so. Failing in these
two requirements, a judgment shall be rendered
against the bondsmen, jointly and severally, for the
amount of the bail.
Judgment against the bondsmen cannot be entered unless such
judgment is preceded by an order of forfeiture and an opportunity
given to the bondsmen to produce the accused or to adduce
satisfactory reason for their inability to do so. An order of forfeiture
is interlocutory and merely requires the bondsmen “to show cause
why judgment should not be rendered against them for the amount of
the bond.” The order is different from the judgment on the bond
which is issued if the accused was not produced within the 30 day
period.
Aside from forfeiture, when the accused fails to appear in court
despite notice, the court may issue a bench warrant for his arrest.

A bench warrant is defined as a writ issued directly by a judge

to a law enforcement officer, for the arrest of a person who has been
held in contempt, has disobeyed a subpoena, or has to appear at a
hearing or trial.

Cancellation of the Bail

1. Cancellation by application of the bondsmen – bail may be

cancelled upon application of the bondsmen with due notice to the
prosecutor upon surrender of the accused or proof of his death.
2. Automatic cancellation – the bail may be deemed
automatically cancelled upon (a) acquittal of the accused; (b)
dismissal of the case, or (c) execution of the judgment of conviction.
3. Section 5, Rule 114 allows the cancellation of bail where the
penalty imposed by the trial court is imprisonment exceeding 6 years
if any of the grounds in the said section is present as when the
circumstances indicate the probability of flight. This order of
cancelling the bail is subject to review by the appellate court, motu
proprio or on motion.

Application not a bar to objections in illegal arrest, lack of or

irregular preliminary investigation

The application or admission of the accused to bail shall not bar

him from challenging both the validity of his arrest or the legality of
the warrant issued therefor, provided that he raises them before
entering his plea. It shall not, likewise, bar the accused from
assailing the regularity or questioning the absence of a preliminary
 6

investigation of the charge against him provided the same is raised

before he enters his plea.
The principle that the accused is precluded from questioning
the legality of the arrest after arraignment is true only if he
voluntarily enters his pela and participates during trial, without
invoking his objections thereto.

Hold Departure Order and Bureau of Immigration Watchlist

DEPARTMENT CIRCULAR NO. 41, JUNE 07, 2010

CONSOLIDATED RULES AND REGULATIONS GOVERNING

THE ISSUANCES AND IMPLEMENTING OF HOLD DEPARTURE
ORDERS, WATCHLIST ORDERS, AND ALLOW DEPARTURE
ORDERS

Section 1. Hold Departure Order. - The Secretary of Justice may

issue an HDO, under any of the following instances:

(a) Against the accused, irrespective of nationality, in criminal

cases falling within the jurisdiction of courts below the
Regional Trial Courts (RTCs).

If the case against the accused is pending trial, the application

under oath of an interested party must be supported by (a) a
certified true copy of the complaint or information and (b) a
Certification from the Clerk of Court concerned that criminal
case is still pending.

(b) Against the alien whose presence is required either as a

defendant, respondent, or witness in a civil or labor case
pending litigation, or any case before an administrative agency
of the government.

The application under oath of an interested party must be

supported by (a) a certified true copy of the subpoena or
summons issued against the alien and (b) a certified true copy
complaint in civil, labor or administrative case where the
presence of the alien is required.

(c) The Secretary of Justice may likewise issue an HDO against

any person, either motu proprio, or upon the request by the
Head of a Department of the Government; the head of a
constitutional body or commission; the Chief Justice of the
Supreme Court for the Judiciary; the Senate President or the
House Speaker for the Legislature, when the adverse party is
 7

the Government or any of its agencies or instrumentalities, or

in the interest of national security, public safety or public
health.

Section 2. Watchlist Order. - The Secretary of Justice may issue a

WLO, under any of the following instances:

(a) Against the accused, irrespective of nationality, in criminal

cases pending trial before the Regional Trial Court.

The application under oath of an interested party must be

supported by (a) certified true copy of an Information filed with
the court, (b) a certified true copy of the Prosecutor's
Resolution; and (c) a Certification from the Clerk of Court
concerned that criminal case is still pending.

(b) Against the respondent, irrespective of nationality, in

criminal cases pending preliminary investigation, petition for
review, or motion for reconsideration before the Department of
Justice or any of its provincial or city prosecution offices.

The application under oath of an interested party must be

supported by (a) certified true copy of the complaint filed, and
(b) a Certification from the appropriate prosecution office
concerned that the case is pending preliminary investigation,
petition for review, or motion for reconsideration, as the case
may be.

(c) The Secretary of Justice may likewise issue a WLO against

any person, either motu proprio, or upon the request of any
government agency, including commissions, task forces or
similar entities created by the Office of the President,
pursuant to the "Anti-Trafficking in Persons Act of 2003"
(R.A. No. 9208) and/or in connection with any
investigation being conducted by it, or in the interest of
national security, public safety or public health.

Section 3. Completeness of Information. - To ensure the proper

identification of the subject of the HDO/WLO and to avoid
inconvenience to any innocent party, all applications or requests,
including the HDO/WLO to be issued, shall contain the following
information of the subject:

a. Complete name, i.e. given name, middle name or initial and

surname;
 8

b. Alias/es, if any;

c. Date and place of birth;

d. Place of last residence;

e. Passport details, if available;

f. Recent photograph, if available;

g. Complete title and docket number of the case; and

h. Specific nature of the case.

Case: Arroyo vs. De Lima, G.R. No. 199034, November 15, 2011
Resolution