The Recognizance Act of 2012: Giving the Poor “More in Law”

In our criminal justice system, one kind of injustice, that victimizes only the poor, happens every day whenever an accused, who has the right to post bail to attain liberty during the course of the trial of his criminal case, is not able to enjoy such right because he cannot afford to post bail for his release. This reality tramples upon the social justice mandate of our Constitution and has caused great injustice to the poor, especially those who are wrongly accused of the crime for which they have been charged and arrested.

There is a recent legislation that seeks to address this problem: Republic Act 10389 or the Recognizance Act of 2012 (“RA 10389” or the “Act”), which was signed into law by President Benigno S. Aquino III on March 14, 2013, and which is intended to promote restorative justice amid problems confronting the criminal justice system such as protracted trials, prolonged resolution of cases, inability to post bail bond, and congestion in jails.

Right to Bail and to Be Released on Recognizance

The right to bail emanates from the constitutional right of an accused to be presumed innocent until proven by an independent, competent, and unbiased court to be guilty beyond reasonable doubt. However, for a person accused of a crime, who is poor and belongs to the marginalized and depressed sector of society, this right more often than not is too costly, thereby making it practically futile. The right to recognizance, under RA 10389, seeks to address this.

Recognizance, as an alternative to posting bail, is defined under the Act as: “a mode of securing the release of a 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.”

The term used is “release on recognizance.” The reputable person entrusted with the accused’s custody will then have the burden of bringing the accused to court when his presence is required by such court.

Recognizance as a Matter of Right

In its statement of policy, the Act provides that the right of persons to be released on recognizance is affirmed except those charged with death, reclusion perpetua, or life imprisonment.

Section 5 the Act states that to be released on recognizance is a matter of right when the offense is not punishable by death, reclusion perpetua, or life imprisonment, and the application for such is filed before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court. For criminal proceedings before the Regional Trial Court, the application should be filed only before conviction.

Moreover, Section 12 of the Act provides that the release on recognizance shall not be allowed in favor of the accused after the judgment has become final or when the accused has started serving sentence.

Requirements

Among the requirements for recognizance are: (a) a sworn declaration by the person in custody of his or her indigency or incapacity to post bail; (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 should have already been arraigned; (d) notification by the court of the application for recognizance on the city or municipal sanggunian where the accused resides; (e) proper documentation of the accused through photos of all sides of the face and fingerprinting; and (f) notification by the court on the public prosecutor of the date of hearing on the application within 24 hours from the filing of the application.

Disqualification

An accused can be disqualified from availing of release on recognizance on any of the following grounds:

1. the accused has made untruthful statements in his or her affidavit;

2. the accused is a recidivist, quasi-recidivist, habitual delinquent, or has committed a crime aggravated by reiteration;

3. the accused had previously escaped from legal confinement, evaded sentence or has violated the conditions of bail or release on recognizance without valid justification;

4. the accused had previously committed a crime while on probation, parole, or under conditional pardon;

5. the accused is a flight risk;

6. there is a great risk that the accused may commit another crime during the pendency of the case; or

7. the accused has a pending criminal case which has the same or higher penalty to the new crime he/she is being accused of.

The court may also order the arrest of an accused released on recognizance (1) if he fails to appear at the trial whenever required by the court; (2) if there is a manifestation under oath by any person, which found meritorious by the court after a summary hearing and after giving the accused the opportunity to be heard; (3) if the accused has been sued for the commission of another offense involving moral turpitude and the mayor or public prosecutor recommends his arrest; or (4) if he commits an act of harassment against private complainant, prosecutor or witnesses in the case pending against him.

The Act took effect on April 6, 2013, fifteen days after its publication in the Official Gazette and two national newspapers.

(Ricardo Ma. P.G. Ongkiko and Melissa Asuncion A. Ursua co-authored this post.)

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