I

Theright to bail is guaranteed by Article III, section 1 (16)

of the Constitution as follows: "All persons shall before convic-
tion be bailable by sufficient sureties, except those charged with
capital offenses when evidenceof guilt is strong. Excessivebail
shall not berequired."
Thebail guarantee seemsto implythat thepersonclaimingthe
right must havefirst beenchargedwith an offensefor whichheis
beingheld. Mter the liberation, however, owingto the difficulty
of filingcharges at onceagainst thoseheldfor allegedtreason and
yet it beingnecessary to holdthemin custody, CommonwealthAct
No. 682, creating the People'sCourt and the Officeof Special Pro-
secutors, providedin its section19, amongother things, that those
heldshall "bereleasedonbail, evenprior tothepresentation of the
correspondinginformation, unlesstheCourtfindsthat thereisstrong
evidenceof the commissionof a capital offense."1 So, in Herras
Teehankeev. Rovira,2the qW!stionwas, for the first time, squarely
presented whether the constitution.al guarantee abovequotedcould
beinvokedby oneheldfor treason although no formal chargehad
yet beenfiled. TheSupremeCourt heldtheConstitutionapplicable,
declaring as follows: "This constitutional mandate refers to all
persons, not onlyto persons against whomacomplaint or informa-
tionhas already beenformally filed. It laysdownthe rulethat all
per~onsshall beforeconvictionbebailableexceptthosechargedwith
capital offenseswhenevidenceof guilt isstrong. Accordingtothis
provision, thegeneral ruleisthat anyperson, beforebeingconvicted
of any criminal offense, shall bebailable, exceptwhenheischarged
with a capital offense.andthe evidenceof his guilt is strong. Of
course, onlythose persons whohavebeeneither arrested, detained
or otherwisedeprivedof their liberty will ever haveoccasiontoseek
the benefitsof said provision. But in order that a person can in-
vokethis constitutional precept, it is not necessary.that he should
wait until a formal complaint or information is filedagainst him.
Fromthemoment heis placedunder arrest, detention or restraint
by the officersof the law, he can claimthis guarantee of the Bill
of Rights, and this right heretains unless and un.til he is charged
with a capital offenseand evidenceof his guilt is strong. Indeed
This article is a part of the author's forthcoming book on Criminal Procedure.
LL.B. (U.P.); LL.M. (University of Michigan). Fellowof the Law School,
University of the Philippines, and the U.S. State Department, 1949.1950; on the
faculties of the College of Law, University of the Philippines and the Philippine Law
School.
1See also Ezecutive Order No. 65 of the President of the Philippines, dated
September 3, 1945.
275 Phil. 634 (1945). SeealsoOcampo v. Bernabeet al., 43 a.G. No.5, 1632,
1634 (1946).
if, asadmittedonall sides, thepr.cceptprotectsthosealreadycharged
under a formal complaint or information, there seemsto benolegal
or just reason for denying its benefitsto oneas against whomthe
proper authorities may evenyet concludethat there exists nosuffi-
cient evidenceof guilt. Toplacethe former inamorefavored po-
sition than the latter wouldbe, to say the least, anomalousand ab-
surd. If there is a presumption of innocencein favor of oneal-
ready formally chargedwith criminal offense... a f01'tiori, this pre-
sumptionshouldbeindulgedinfavor of onenot yet socharged, al-
though a,lreadyarrested or detained." 3 .
The Teehankeecase, extending the constitutional right to bail
to thoseheld but not yet charged, seemsespeciallysuited to those
heldfor treason under CommonwealthAct No. 682. By section 19
of this Act, public officerswereauthorized to holdprisoners for a
period of six months, incurring no criminal liabiltiy thereby under
article 125 of the Revised Penal Code, although no formal charge
was filed.
4
This period of time made the bail guarantee the only
ample remedy for the prisoners, as habeas corpus would not lie
withintheperiodof six months. In ordinary cases, however, where
detentionshall last nomorE!than six hours without aformal charge
being filed,5the r.emedy,in casedetention continues and no charge
is filed, is habeas corpus, not a petition for bail as guaranteed by
the Constitution. Similarly, under CommonwealthAct No. 682, if
the detention exceededsix months ,andnocharge w,asfiled, the re-
medy wouldbea petition for habeas corpus and not for bail.50
The purpose of the constitutional guarantee against excessive
bail is to prevent the denial of bail by fixingthe amount sounrea-
sonablyhigh that it may not begiven.
6
Themerein.abilityto pro-
cure bail does not of itself makethe amount excessive.
1
The con-
trolling circumstances in determining the amount of bail havebeen
stated as follows: "( 1) The bail shall be sufficiently high to give
a r.easonableassurance that the undertaking will becompliedwith;
(2) the power to require bail is not to besousedas to makeit an
3 At pp. 640-641. The opinion on this point was unanimous. See also Duran
v. Abad Santos, 15 Phil. 410 (1945), where the matter seems to have been taken
for granted.
4 This was held constitutional in Laurel v. Misa, 42 C.G. No. 11, 2847.
5 Art. 125, R.P.C. SeealsoBustosv. Lucero, 46a.G. No.1 (November, 1950),
438 (1948).
5&See, however, opinion of Pablo, J ., in the Politburo cases, G.R. Nos. L-4855,
4964, 5102, October 11, 1952, to the effect that bail may besecured in hab~as corpus
proceedings.
6On the origin of the constitutional provision prohibiting excessivebail, Norton
says: "Long imprisonments which had been made possible by excessivebail and the
prevention of trials had so offended the English people that when William III and
Mary ascended the throne they were required in the Declaration of Rights to assent
to a provision substantially like this clause in our Constitution. As far back as the
reign of Henry VI (1444) there was an act of Parliament requiriRg sheriffs and
other officersto (let out of prison all manner of persons upon reasonable sureties of
sufficient persons.''' Th~ Constitution of the United States, 1943, p. 222.
1Ex parte Malley, 50 Nev. 248, 53 A.L.R. 395 (1927).
instrument of oppression; (3) the nature of the offense and the
circumstances under whichit was committedare to beconsidered;
(4) theabilitytomakebail istoberegarded, andproof maybetaken
upon this point." 8 The question whether or not bail is excessive
rests mainly onjudicial discretion.
9
Theconditions of the bail are
thosefixed,bylawand to permit the impositionof other conditions
might result in the bail bejng excessive.
10
The Supreme Court, in
P,eoplev. Lara,l1heldthat timelyobjectiontoexcessivebail must be
r,aised; .andthat onappeal of acriminal casetothe SupremeCourt,
thequestionof excessivebail may not beassignedas error, the ob-
jection not being raised timely.
Under section 10, Rule 108, Rules of Court, summonsmay be
issuedinsteadof awarrant of arrest, inwhichcasebail is unneces-
sary. But the judge may order that the accusedbe arrested and
not released except upon furnishi.ng bail.
Bail as a matter of right.-Section 3, Rule110, Rulesof Court,
states the rule as follows: "After judgment by a justice of the
peace.andbeforeconvictionby the Court of First Instance, the de-
fendant shall beadmitted to hail as of right." 12 The Constitution
provides: "All persons shall beforeconvictionbebailableby suffi-
cient sureties, except thosechargedwith capital offenseswhenevid-
enceof guilt is strong." 18 Theconstitutional precept isrepeated in
section6, Rule110, Rulesof Court, as follows: "No personincus-
tody for the commissionof a. capital offense shall beadmitted to
bail if the evidenceof his guilt is strong."
Fromthese leg.alprovisions, the followingpropositions may be
deduced: (1) Sinceinferior courts have,nojurisdiction to try ca-
pital offenses, bail isamatter of right inall caseswithi.ntheir com-
petence, before or after conviction; (2) on appeal from inferior
courts to Courts of First Instanceandbeforeconvictionby the lat-
ter, bail islikewisea.matter of right; (3) innon-capital caseswithin
the origi.nal jurisdiction of Courts of First Instance, bail is a mat-
ter of right beforeconviction.
It wouldseem, fromthe constitutional provision abovequoted
that, incapital casesbeforeconviction,wherethecourt hasconcluded
that evidenceof guilt is not strong, the accusedis entitled to bail
as of right. Ontheother hand, wherethecourt has concludedthat
the evidenceof guilt is strong, the accused has no right to bail.
8Ex parte Castillo, 102 Tex. Crim. Rep. 52, 277 S.W. 126 (1925). "The
determination of what is disproportionate to the offense involved does not depend
alone upon the amount of money which may have been lost to one party, or secured
to another, by means of the offense; but it depends rather upon the moral- turpitude
of the crime, the da'nger resulting to the public fromthe commission of such offense,
and the punishment imposed or authorized by law therefor." In re Williams, 82
Cal. 183, 23 Pac. 118 (1889). See 53 A.L.R. 401-407; and article 37 of the
Provisional Law for the application of the Penal Code.
9SeeWeems v. U.S., 217 U.S. 349, 54 L. ed. 793, 799 (1910).
10 Bandoy v. J udge of First Instance, 14 Phil. 620, 626 (1909).
1175 Phil. 796, 791 (1946).
12 Taken inmodified formfromsectian 64 of General Orders No. 58.
18Art. III, section 1 (16) .
Consequently,thejudicial discretionliesmainlyinthedetermination
.of whether evidenceof guilt is strong or not. Whereevidenceof
guilt isnot strong, andthecourt sofinds,judicial discretiontogrant
or not to grant bail doesnot exist. TheSupremeCourt, however,
seemstohavedepartedfromtheseobservations. Section19of Com-
monwealthAct No. 682reads partly as follows:
" ... Provi!ded, hlJwever, That existing provisions of lawto
the contrary .notwithstanding, the aforesaid political prisoners
may, in the discretion of the People's Court, after duenotice
to the officeof Special Prosecutors andhearing, bereleasedon
bail, evenprior to the presentation of the corresponding infor-
mation, unlessthe Court findsthat there is strong evidenceof
the commissionof a capital offense... "
Interpreting this provision, the Supreme Court, in Duran v. Abad
Santos14 said: "As may be seenfromthe aboveexpress provision
of law, thereleaseof adetaineeonbail, 'evenprior tothepresenta-
tion of the corresponding information,' is purely discretionary on
the People,'s Court. The only exceptionto it is when Court finds
that there isstrong evidenceof the commissionof acapital offense,'
inwhichcasenobail whatever canbegranted, as theprovisionap-
pears mandatory. In other words, aside from thtLt, the People's
Court has the absolute discretion to gram.t bail or not." 15 TheSu-
preme Court, thus, held that, under abovestatutory provision, al-
though evidenceof guilt was not strong, the People's Court hadthe
absolutediscretiontogrant bail or not. Instrong language, charac-
teristically his, J ustice Perfecto dissented, saying: "If the interpre-
tationof themajority iscorrect, thenwemust becompelledtodeclare
section 19of CommonwealthAct No. 682unconstitutional, whereit
gives the People's Court absolutediscretionary power to grant or
to denythepetition of a prisoner to bereleasedon:bail,apower so
unlimited that it cannot fail to,remind us of the a.bhorrent absolu-
tismof ajudicial dictatorship." 16 WhiletheSupremeCourt's inter-
pretation, however, seemsviolativeof theConstitution, denial of bail
to Pio Duran was based onthe evidenceof his guilt being strong,
determined in a hearing where, presumably, adequate opportunity
was givenhim.
Wherebail isama.tter of right, it istheministerial duty of the
court togrant it andmandamus liestocompel refusal. In SyGuan
v. Amparo,11theaccused,chargedwithvisitinganopiumden, jumped
.bail whilehis casewas pendingtrial inthe Court of First Instance
fromanappeal fromthe decisionof theMunicipal Court. Thebail
14 SUPrtJ, note 3.
15At p. 415. Underscoringours. This interpretationisin harmonywithsection
67 of the American Law Institute Code of Criminal Procedure, involvingconstitu-
tional amendment in most states, by providing that the granting of bail shall be a
matter of discretionand not of right in capital caseswhere~ proof is not evident
or the presumption not great. Odielcl, Criminal Procedure From Arrest to Appeal,
1947, p. 110.
16At p. 445.
11G.R. No. L-1771, December 4, 1947.
havingbeenforfeited andtheaccusedarreateci, newbail was offered
toand refused bythe Court of First Instance. TheSupremeCourt
granted mandamus, holding that, where bail is a matter of right,
prior abscondingand forfeiture donot affect it. That the accused
absconded only gives the court power to increase the bail, pro-
vidednot excessive. Whenbail is a matter of right, notice of ap-
plicationfor thesameneednot begiventothe fiscal.I'
TheSy Guancasethrows light onthe fundamental problemof
bail whether or not courts shouldbealloweddiscretion in granting
bail and, if so, to what extent.IS In England, NewYork, Maryland
and Georgia, the courts enjoy a large measure of discretion as to
whether or not theywill grant freedomonbail. Thefonowingexam-
pletook placein a jurisdiction where bail was a matter of right:
"A man was arrested in Detroit onacharge of picking pockets; he
securedreleaseonbail and whilethe first casewas pending hewas
arrested four additional times for picking pockets and secured bail
eachtime." 10 Evils of the samecharacter dohappen in this juris-
diction. So, inReyesv. Court of Appeals,21thepetitioner committed
fivecrimeswhilehewas onbail. Professor Waitesays: "Thefacts
as they stand are strongly in favor of a judicial power of discre-
tion." 21
Bail as a matter of discretion in 'lW'n-capital oJ lemes.-Section
4,Rule110, Rulesof Court, providesasfollows: "No.n-ca,pital offenses
after conviction by the Court of First lnstance.-After convictionby
the Court of First Instance, defendant may, upon application, be
bailedat the discretion of the court." 21 That this provision refers
to charges for non-capital offenses seemsclear, not only becauseof
thenoteintroducing theprovision, but alsobecauseafter conviction
inacapital offensenoright tobail exists. So, the SupremeCourt,
in Peoplev. Follantes and J acinto,!' said: "Persons convictedof a.
crimepunishable by death, as murder, are not bailable, as the law
recognizessuchright inapersonaccusedof said crime, before con-
viction, onlywhenthe evidenceof his guilt is not strong."
It has beenseenthat the Constitutionguarantees that "All per-
sonsshall beforeconvictionbebailablebysufficient sureties . . . "23
Accordingly,aboveprovisionof theRulesof Court decreesthat, after
convictionby the Court of First Instance in non-capital cases, bail
isamatter of discretion. TheSupremeCourt, inPeoplev. Follantes
18 SeeSec. 8, Rule 110, Rules of Court.
19 SeeWaite, "Code of Criminal Procedure: The Problems of B~," 15 A.B.A.].,
71, 72, (1929).
20 Sutherland, Criminology, p. 213, quoted in Waite, Criminal Law and Its En.
forcement, 1947, p. 635.
21G.R. No. L1989, May 23, 1949.
22 Supra, note 20, p. 636. "The English practiceof largediscretionseemssound."
OrfieId, supra, note 15, at p. 110.
23 Taken from section 64 of General Orders No. 58, providing as fonows:
". . . in all non-capital cases after judgment by any court, 3.$ matter of judicial
discretion."
2' 63 Phil. 474, 475 (1936).
23 Art. nI, section 1 (16).
and J acinto,26saidthat "the right to bail after convictionis not au-
thorized.by the Constitution and is, as a general rule, not recog-
nized .. " Andthis holdingwas upheldin Reyesv. Court of Ap-
peals.
27
J ustice Perfecto, concurred in.byJ ustice Paras, nowChief
J ustice, in the latter case, thought that the word "conviction" as
usedinthe Constitution shouldmean"final conviction." According
tothis opinion, section4, Rule110, Rulesof Court, wouldbeuncon-
stitutional as it makes bail a matter of discretion before convic-
tion bythe Court of First Instancehas becomefinal, whenit should
beamatter of right. This dissent not onlystrains the Constitution
but alsoruns counter tothebeneficentpolicytovest thecourts with _
amplediscretion in granting or denying bail.
In the abovecase of Reyes v. Court of Appeals, the Supreme
Court affirmedthe denial of bail totheaccusedbythe Court of Ap-
pealsonthegroundsof hisnotorious.antecedents-there beingtwelve
criminal cases against the accused, fiveof which were committed
whilehe was enjoying provisional liberty under bail-that the ac-
cusedwascaught in flagran.ti intheinstant case, andthat theappeal
wasfrivolous. TheSupremeCourt quotedwithapproval thefollow-
ingdoctrine: "It isgenerallyheld, however,that wherebail isallowed
pendinganappeal fromaconviction,theappeal must beonewhichis
taken in goodfaith, and not for frivolous reasons, andmust beone
for whichthere is probablecause . .. In determining whether or
not togrant bail pendingappeal, thecourt shouldalsoconsider whe-
ther or not, under all the circumstances, the accusedwill bepresent
toabidehis punishment, if his convictionisaffirmed, as well as any
other pertinent matters beyondthe record of the particular cause
wherein the application is made, suchas the record, character, and
reputation of theapplicant . .. Whereanapplicationfor bail pend-
ing appeal has beenrefused by the trial judge, his action will or-
dinarily begivengreat weight by the appellatejudge, whowill not
grant bail upon the same facts unless it clearly appears that the
trial judge abused his discretion." 28
Section8, Rule110,Rulesof Court, providesthat when"admis-
siontobail isamatter of discretion, thecourt must requirethat rea..
sonablenoticeof the hearing of the application for bail begivento
thefiscal." This noticegivesthefiscal anopportunity toopposethe
applicationor merelytorecommendabigamount.
Bail in capital offenses.-Section 5, Rule110, Rules of Court,
definesacapital offenseas onewhich, "under thelawexistingat the
time of its commission, and at the timeof the application to bead-
mitted to bail, may be punished by death." This means that an
offenseis capital if it may bepunished with death, although, after
conviction, less than death is actually imposed.
2u
Two periods of
26 Supra, note 24 at p. 475.
27 Supra, note 21.
28
6 Am. J ur., sec. 29, p. 62.
29 People v. Sta. Lucia, 315 Ill. 258, 146N.E. 183 (1925); State v. Barone, 96
N.J .L. 374, 114 At!. 809 (1921); Ex parte Howard, 270 S.W. 550 (1925). Contra,
the statute involved being different from ours, see Walker v. State, 209 S.W. 86
(1919); also 3 A.L.R. 970-971.
timeareconsidered, namely, thedateof thecommissionof thecrime
and the application for bail; the commissionof the crime, because
nopenaltymay beimposedother than that prescribed bylawa.tthat
time; dO andthe applicationfor bail, because, generally, a changein
the law, favora.blyto the accused, benefitshim.
31
Thecapital offensesunder theRevis.edPenal Codearetreason,S2
qualifiEdpiracy,sSparricide,''' murder,s5infanticide,s6kidnapping, and
illegal detention,s1and robbery with homicide.
s8
The penalties for
thesecrimesrangefromonepenalty todeath, asthemaximum. The
maximumpenalty, under the Code, may, however, be imposedonly
if aggravating circumstances bepresent to warrant its applica.tion.
But since aggravating circumstances may be proved altho~gh not
alleged in. the complaint or information, it would be sufficient to
chargeabovecrimes soas to makethe offenses capital.
Bail incapital offensesmaybeconsideredeither beforeor after
convictionby the Court of First Instance. Before conviction, says
the Constitution, "All persons shall . . . be bailable by sufficient
sureties, except those charged with capital offenses when evidence
of guilt is strong." S9This is repeated bysection6, Rule110, Rules
of Court, whichsays: "No person in custody for the commissionof
a.capital offenseshall beadmitted to bail if the evidenceof his guilt
is strong." 10 Of theseprovisions, J ustice Imperial, writing for the
SupremeCourt, inMarcosv. Cruz,41Said: "Whenthecrimecharged
isacapital offense, admissiontobail lieswithin thediscretion of the
court, and depends uponwhether the proof is evident and the pre-:-
sumptionof guilt isstrong." Aswealre.adyhavehadoccRsiontoob-
serve, the court's discretion lies inthe determination of whether or
not evidenceof guilt is strong. Thegranting or denial of bail de-
pends uponthis determination. Thecourt may not findevidenceof
On abolition of the death penalty, the accused would be entitled to bail as of
11ightor in the court's discretion, depending upon the circumstances. See 9 A.L:R.
1352-1353.
soArt. 21, R.P.c.
S1Art. 22, R.P.C.
32 Art. 114.
33 Art. 123.
34 Art. 246.
35 Art. 248.
36 Art. 255.
31Art. 267, as amended by R.A. No. 18, sec. 2.
38 Art. 294, paragraph 1.
39 Art. III, section 1 (16).
40 This wastaken fromsecticm63 of G.O. No. 58, whichprovided: "All prisoners
shall bebailablebeforeconviction, e1(ceptthosecharged with the commission of capital
offenses whenproof of guilt is evident or the presumption of guilt is strong."
41
67 Phil. 82, 87 (1939). See also Montalbo v. Santamaria, 54 Phil. 955,
962 (1930). "In cases of capital offense the accused is bailable in the discretion of
the court, as has been already declared by this court in Teehankee v. Rovira, 43 O.G.,
513." Peoplev. Alano, 45 a.G. No. 11,4935,4937 (1945), "From theseprovisions
it is clear that even capital offenses are bailable in the discretion of the court before
conviction." U.S. v. Babasa, 19 Phil. 198, 201 (1911).
guilt to be weak and yet deny bail; because discretion does not ex-
tend this far. It may, of course, be contended that this discretion
is specious, for if the court desires to deny or grant bail, it may easily
m.akea finding to sustain the conclusion it is desired to reach. This
contention, however, will not cover the situation where no evidence
is presented at all Orwhere that presented is admittedly weak. And
as wehave seen the American Law Institute Codeof Criminal Pro-
cedur.e, in section 67,42reforming the law of b.ail and necessitating
a constitutional amendment, grants express power to the courts to
grant or to deny bail in capital cases, before conviction, although
the evidence of guilt benot strong. And it may bestated in passing
that, if the Supreme Court has granted bail in capital offenses after
conviction and pending appeal in special situations,43 it may also be
granted before conviction under the same circumstances, although
evidence of guilt bestrong.
The pOwer of a trial court to grant bail in capital cases, before
conviction, was raised for the first time in U.S. v. Babasa.
44
Thebail
granted by the trial court was forfeited and the sureties contended
that the bail was null and void, for the court lacked power to grant
it. The Supreme Court recognized the trial court's power and held
as follows: "From these provisions 45it is clear that even capital of-
fenses are bailable in the discretion of the court before conviction.
As aresult, the objection of the appellants that the trial court had no
power or jurisdiction to admit to bail inthe caseat bar, must beover-
ruled. Under the facts presented in this case the trial court may
have exercised bad judgment in admitting to bail; but he had juris-
diction in the premises.
48
Unquestionably, the determination of whether or not evidence of
guilt is strong requires a hearing where the prosecution and the de-
fense have the right to be present ~d hearo.
41
Indeed, notice to
the fiscal is expressly enjoined by law. Section 8, Rule 110, Rules
of Court, provides: "When admission to bail is a matter of discre-
tion, the court must require that reasonable notice of the hearing
of the application for bail be given to the fiscal." So, where bail
42 Seenote 15, SUprll.
43 De 1aRama v. The People's Court, 43 C.G. No. 10, 4107, "'110 (1946),
citing the casesof Pio Duran and Benigno Aquino; People v. Sison, G.R. No. L-398,
September 19, 1946.
44 SUpTII, note 41.
45 The provisions referred to were section 5, paragraph 4 of the Act of J uly 1,
1902, and section 63, G.O. No. 58.
46 At p. 201.
41 "Indudablemente, mediante una in.vestigacionpOl'el tribunal que conozcade la
causa, con asistenciade todas las partes, la acusa.ciony la defensa." Peralta v. Ramos,
40 C.G. No. 21. (13th Supp.), 68, 71 (1941). "Since the discretion is directed to
the weight of evidenceand. sinceevidencecannot properly be weighed if not duly ex-
hibited or produced beforetbe court. . ., it isobviousthat aproper exerciseof judicial
discretion tequires that the evidenceof guilt be submitted to the court, the petitioner
having the dpt of .cross-examinationand to introduce his own evidencein. rebutta1."
Oampo \'. Bernabe dJ., .. 3 O.G. No.5, 1632, 163..(1946). See also Montalbo
v. Santamaria, SUprll, note41, at pp. 961-962.
was deniedwithout a hearing of the accused, the Supreme Court
ordered oneto beconducted." It was likewiseheldthat a hearing
shouldbeconductedof applicationsfor bail of thoseheldfor treason,
thoughnochargehadyet beenfiled, pursuant to sections 19and 22
of C.A.No. 882. TheSupremeCourt said: "Astothe secondquest-
ion, weholdthat uponapplication,byapolitical prisoner or detainee
to the People's Court for provisional releaseunder bail, a hearing,
summary or otherwise, shouldbeheldwith duenoticeto the Office
of Special Prosecutors, aswell astotheprisoner or detainee. It will
beremembered that section 22 of the People's Court subjects the
prosecution, trial, and disposal of casesbeforethe People's Court to
'existinglawsandrulesof court,' unlessotherwiseexpresslyprovided
in said act. Consequently, the hearing and disposal or application
for bail for provisional releasebeforethe People's Court shouldbe
governedby existing laws and rules of court, the hearing and dis-
posal of suchapplicationsbeingamerepart of the'prosecution, trial,
and disposal' of the corresponding cases before said court." 49
The duty to decidewhether or not evidenceof guilt is strong
is ministerial and may, therefore, be compelledby mo/ndamus, al-
though this remedy may not beusedto compel a decisiononeway
or theother. J ustice Villamor, speaking for the Court in Montalbo
v. Santamaria,fiOsaid: "It is indisputably his ministerial duty to
grant or deny the motion for freedomon bail; he cannot shirk it.
Sincehemust denyor grant it whether the proof is evident or not,
or the presumption of guilt bestrong or not, heis likewiseminist-
eriallybOundtodecidewhichcircwnstanceispresent. Asfar asthe
principles involvedare concerned, there isnodifference betweenre-
fusing toadmit adefendant tobail inacapital offensewithout con-
sidering or decidingwhether proof beevident or thepresumption of
guilt strong, and convictingdefendant CJ f the crimecharged without
consideringor decidingwhether heis guilty or not. Theonly dif-
ferenceis the degreeof freedomof whichheis deprived."
If thenahearingmust beconducted,whohastheburdenof proof
to showthat evidenceof guilt is strong? In casethe prosecution
asks for the cancellation of bail already given onthe ground that
evidenceof guilt isstrong, there wouldseemto benodoubt that the
prosecutionhas the burden. But if the accusedapplies for bail, it
wouldseemthat the accusedhas the burden of proof to showthat
evidenceof guilt is not strong. General Orders No. 58containedno
provisionresolvingthisquestion. Americanauthorities posetwocon-
flicitng theories, placingthe burden upononeand the other.
51
The
48 Peralta v. Ramos, s.upra, note 46-
49 Herras Teehankee v. Rovira, supra, note 2, at p. 643. The minority agreed
to this point. At p. 645. Seealso Duran v. Abad Santos, supra, note 3 at pp. 416-
417; Payao v. Lesaca, 63 Phil. 210, 215 (1936).
50 Supra, note 41, at p. 962.
51 Marcos v. Cruz, 67 Phil. 82, 88-89 (1939). That the burden is on the appli-
cant, see Ex ptn'k Paige, 82 Cat App. 576, 255 Pac. 887 (1927); Ex parte Tully,
70 Fla. 1 (1914); Ex ptn'te Andrews, 39 Old. Cr. Rep. 359, 265 Pac. 144 (1928).
That the burden is on the prosecution, set 1ft re Haigler, 15 Ariz. 150, 137 Pac. 423
(1913); State v. District Court, 35 Mont. 504 (1907); State v. Kauffman, S.D.
SupremeCourt, however, decided,under General Orders No. 58, that
when a person accusedof a capital offenseasks to beadmitted to
bail beforeconviction, the burden of proof lies, not onhim, but on
the prosecutionto showthat he is not bailable.
62
This rule is now
adoptedexpresslybytheRulesof Court, which, insection7, Rule110,
provides: "On the hearing of an application for admission to bail
madeby any person whois in custody for the commissionof a ca-
pital offense, the burden of showingthat evidenceof guilt is strong
is ontheprosecution." 53 Consequently,whether theprosecutionpe-
titions for cancellation of bail or opposes an application for one,
the burden is uponit to showthat evidenceof guilt is strong. It
may not, therefore, beinfrequent to findthe prosecution allowing
bail, insteadof divulgingthenature of its evidenceinahearing well
inadvanceof thetrial. 64
Andthen, what kind of a hearing must it be? It is saidthat
the hearing may besummary or "such brief and speedymethodof
receivingand consideringthe evidenceof guilt 8,9 ispracticableand
consistent withthepurposeof thehearing whichismerelyto deter-
minetheweight of theevidencefor purposesof bail. Onsuchhear-
ing, thecourt 'doesnot sit totry themerits or toenter intoany nice
inquiry ,astotheweight that ought tobeallowedtotheevidencefor
or against the accused, nor will it speculateonthe outcomeof the
trial or on what further evidencemay betherein offered and ad-
mitted.' (8 C.J .S.,93, 94.) Thecourseof the inquiry may beleft
to the discretion of the court whichmay confineitself to receiving
suchevidenceas has referenceto subst.antial matters avoidingunne-
cessary thoroughness in the examination and cross-examination of
witnessesandreducingtoareasonableminimwntheamount of cor-
roborationparticularly ondetailsthat arenot essential tothepurpose
of the hearing.55 This right to asummary hearing may bewaived,
bytheaccusedagreeingthat thetrial onthemerits andthehearing
onbail application beheldjointly, as also by asking repeated post-
ponements of the hearing onthe bail application. Wherethere is
anagreement tohavethetrial onthemerits andtheapplicationfor
bail heard jointly, it becomesdiscretionary on the courts to grant
or to deny the subsequent request of the accusedto have the bail
applicationheard summarily. This discretionmay not becontrolled
by mandamus.
56
In Gerardo v. J udge of First Instance of Ilocos
Norte,57the SupremeCourt went further and saidthat the court is
not obligedto conduct a separate proceedingto determinethe right
of anaccusedtobeadmittedtobail. Theapplicationfor bail maybe
620, 108N.W. 246 (1906); Ex parte Donohue, 112 Tex. Cr. App. 124 S.W. (2d)
848 (1929).
52 Marcos v. Cruz, supra, note 50, at p. b9.
33 Section68 of the American Law Institute Code of Criminal Procedure con
tains the same provision.
54 Seefor instance, Marcos v. Cruz, 68 Phil. 96, 99 (1939); Duran v. Abad
Santos, supra, note 3, at p. 441; Herras Teehankee v. Rovira, supra, note 2, at p. 653.
55 Ocampo v. Bernabe, 43 O.G. No.5, 1632, 1637 (1946).
53 Munos v. Rilloraza, 46O.G. No. 11 (November, 1950, SuppI.), 62, 64 (1949).
57 G.R. No. L-3451, May 29, 1950; .
heard alongwith the trial onthe merits, in the court's discretion.
"At any rate," said the Court, "the court has the choiceof method
to attain this end." Thefacts, however, indicate that the separate
hearingfor thebail applicationWassuspendedfour times at theins-
tanceof theaccused. Thisbrings thecasepreciselywithin the doc-
trine of Munozv. Rillaroza.
58
Anunduediscretion to combinethe
trial andthebail applicationis likelyto beoppressive. Whowould
liketodotwosuccessivesteps, insteadof just one?
Inthe summary hearing of theapplicationfor bail, it was held
that the evidenceof' guilt besubmitted to the court, the petitioner
havingtheright of cross-examinationandtointroducehisownevid-
enceinrebuttal. Mereaffidavitsor recital of their contents are not
sufficient sincethey aremerehearsay evidence,unlessthepetitioner
fails to object thereto.59 But may 'therecords of the preliminary
investigation besufficient to sustain the claimthat the evidenceof
guilt isstrong? InPayaov. Lesaca,GOtheprosecutionmovedthat the
bail granted by the committingmagistrate becancelled. The pro-
secutionapparently invokedthe records of the preliminary investi-
gation. Thedefensedid not seemto have objec~ nor presented
any evidenceonhis behalf. TheSupremeCourt heldthat thetrial
judge was justified intaking into account the records of the preli-
minary investigation onthe basis of whichthe bail was cancelled.
SaidtheCourt, through J usticeLa'urel: "In suchacase, the judicial
investigationmay consist inthe examination of the evidencein the
hands of the prosecuting officer." 61 Objectionto the admissionof
the records of the preliminary investigation would, perhaps, have
beensustained, hadonebeenmade. For, inthe subsequent caseof
Marcosv. Cruz,62the SupremeCourt heldthat, inspite of Payao v.
Lesaca, the records of the preliminary investigation were not suffi-
cient. TheCourt said: "But it must beborneinmindthat thehearing
required (for the bail application) is essentially different fromthe
preliminary investigation to which every person is entitled who is
accusedof acrimetriable beforethe Court of First Instance . . .63
Thetestimonyinapreliminary investigation istaken intheabsence
58 Supra, note 54.
59 Ocampov. Bernabe, SUprd, lKlte53, at p. 1636. In this case, the prosecutor
merely recitedthe contents of affidavits and said that he had 27 more affidavits. The
Supreme Court held these insufficient to satisfy the requirements of a summary hear-
ing. See also Beltran v. Diaz, G.R. No. L-608, October 7, 1946.
But seeDuran v. Abad Santos, supra, noce3, wherethe Supreme Court seemed
to have approved the contrary. This casewas decided in 1945 and, therefore, does
not seemto be the law now. The scathing dissent of J ustice Perfecto (at pp. 448,
451) seems to have been adopted in the Ocampo v. Bernabe case. Said J ustice Per
fecto: "No greater tragedy can be inflicted on our people if the tyranny of the arch
,criminalsis to bereplaced by that of the prosecutors, whosemere.'recital' of supposed
acts isevidenceenough to provethe guilt of any person, making said 'recital' as power-
ful as a dreadful imperial ukase." , At p. 451.
60 Supra, note 48.
61At p. 214.
62 Supra, note 59, at p. 90.
63 !d.
of theaccusedand hehas noopportunity toseethewitnesses testify
or tocross-examinethem. TheSupremeCourt suggestedthat, since
the information was fileddirectly with the Court of First Instance
and the preliminary investigation was accordingly conducted by it.
if it was intended that the summary investigation shouldalsobethe
preliminary investication, the prosecution should have summoned
theaccusedandadducedits evidenceintheir presence.
64
Theimpact
of the holding in the Marcos ease is, however, weakened by an ob-
servation, which nowclearly appears to beunwise. Saidthe Court:
"Other reasons preventing theconsideration of suchevidenceagainst
the accusedare: that the fiscal did not reproduce or offer it at the
hearing of the petitions for bail; . . .611Did the Court then mean
that, had the prosecution offered the evidence, it should have been
considered? It isapNJ 'ent that thewriter of theopinioo66 was con-
fused and, therefore, practically nullifiedthe doctrine onconfronta-
tion hesowell laid down. At any rate, if according to the caseof
Ocampov. Bernabe,61hearsay evidenceis inadmissible in the sum-
mary hearing for bail, then the records of the preliminary investi-
gation is inadmissible, for they belongto this category. Thereason
why hearsay evidenceis inadmissible and that the summary hearing
shouldbegiven the character of an anticipated trial is that, "if the
Constitution requires thecourt todetennine for itself whether or not
theproof isevident or presumption great inagivencase, all consid...
~ration of expediency or convenience, however patent they might be
at the commonlaw, must ~ve way." 68
The discretion of the court is neither absolute nor beyondcon-
trol.
69
Whileit istrue that the discretion 0fthe lower court isgiv,en
great weight by the appellate court, the latter amy interfere incase
of abufleof discretion. So.,inPeoplev. Alano, the Court said: "After
alongdeliberation onpetitioner's ease, andconsidering thefact that,
of 14counts of theinformation 10had tobedismisseduponpetition
of the prosecution itself, that thetrial is beingprotracted, and peti-
tioner isundergoingalongconfinement,whilethere arenoassurances
that his case can be speedied'in accordance with the constitutional
intent, we are convincedthat petitioner should be bailed and that
lower court has committedagraveabuseof discretion indenyingthe
bail.70 In the same case, it was held that the mere fa.ct that the
petitioner escapedfromjail was not a reason to deny himbail, be-
cause hedid so only to secure witnesses and hesurrendered volun-
tarily when his object w,asserved.
71
Aswehaveearlier noted, noright tobail exists after conviction
in a capital case. The reasons are not only becausethe conviction
64 Id.
611 Id.
66 J usticeImperial.
67 Supra, note 55. See a1&oBeltran v. Diaz, suprtt, note 59.
68 Relosasso, 10 A.L.R. (1891), 850, quoted with approval in Ocampo v. Ber-
nabe, supra, note 55, at p. 1637. .
69 People v. Alano, 45 O.G. No. 11, 4935, 4936-4937 (1945).
70Id.
flAt p. 4937.
has established the evidence of guilt tobestrong, but the Constitution
guarantees bail before comietia;"" However, for hmnanitarian rea-
sons, as when inearceratioJ l is detrimental to the deta.inee'shealth,
the Supreme Court haagranted bail.
ts
Said the Court, inDelaRama
v. People's Court: ... unless allowance.of bail isforbidden by law
inthe particular case, the illness of the prisoner, independently of the
merits of the case, is a circumstance, and the humanity of the law
makes it a consideration which should, regardless of the chaqe and
the stage of the proceediug, influence the court to exercise its dis-
cretion to admit the prisoner to hail."u
12People v. Follentel and J acinto, '"/"lI, note 24.
13De 1aRamav. PeopWs Cowrt,nl,prlf, J U* 43; People 'I. Teo6loSilCln, SUP,dj
note, 43.
14 Supra, note 43. The.~ was suEing .hom cninimaI tubaallosi5 and
chronic pharyngitis.