Demystifying the language of law

HEARINGS on the petition for bail filed by the accused in the Maguindanao massacre began 5 January 5, 2010 before Judge Jocelyn Solis-Reyes of Regional Trial Court (RTC) Branch 221.

Quickly, what has happened since follow:

  • At least 41 murder cases have been filed against the principal accused, Datu Unsay Mayor Andal Ampatuan Jr. All at once, the Judge issued a “show cause” order to both defense and prosecution panels and gave them three days to comply.
  • Before the arraignment of the accused, defense lawyer Philip Sigfrid Fortun informed the judge that his client would have difficulty understanding if the charges were read in English or Filipino, and that he was more conversant in his dialect, Maguindanaon.  Fortun said his client agreed to be arraigned in English.  Ampatuan Jr. separately pleaded ‘not guilty’ to the charges.
  • The prosecution said it would present a total of 12 witnesses for the bail hearings. The judge asked if this could be reduced to fewer witnesses to expedite the hearings.  The prosecution relented and agreed to present just eight witnesses.
  • The defense asked the court for a list of the names of the prosecution witnesses, and the nature of their testimonies and evidence.  The defense asked the court to proceed right away to a preliminary conference and pre-trial of the case.
  • The prosecution lawyers objected, saying they should not be ‘constricted’ and that the defense would have every chance to cross-examine the witnesses anyway.
  • The judge decided against the plea of the defense and moved to open the bail hearings.
  • The prosecution panel has presented the following witnesses:
  1. Atty. Ricardo Diaz, chief of the counter-terrorism unit of the National Bureau of Investigation who led the probe into the November 23 massacre.
  2. Ampatuan town Vice Mayor Rasul Sangki, who said the accused Andal Ampatuan Jr. and his father Andal Sr. masterminded the incident, with Andal Jr. carrying out the killings, aided by other armed men.
  3. Jerry Atanoso, videographer of the provincial government of Sultan Kudarat, who annotated two videos he took of the incident, while these were being played on a wide screen at the courtroom.  The raw video material showed the surface remains of several victims and the retrieval of vehicles and their occupants from three excavation sites in Sitio Masalay, Ampatuan town.

Breaking it Down

Petition for Bail

Bail is defined under Section 1 of the Rules on Criminal Procedure as “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.”

Attorney Tranquil Salvador III, a bar reviewer and law professor, explained that bail is a commitment that an accused will appear in court, whenever he or she is required to.  “If one fails to appear in court, bail will be forfeited in favor of the government,” said Salvador, who handles classes in Remedial Law Review, Civil Procedure, Evidence and Criminal Procedure at the Ateneo de Manila University, Far Eastern University and Pamantasan ng Lungsod ng Maynila.

Citing the Rules on Criminal Procedure, Salvador told the PCIJ that bail is a matter of right by law, if the nature of the offense is not grave, and if the penalty does not exceed 6 years.  It is also a matter of right if the penalty for the offense is not death or life imprisonment or reclusion perpetua.

However, Salvador said the right to bail becomes a matter of discretion if the penalty for the offense exceeds six years.  In such cases, it will be up to a judge to determine if bail should be granted.

According to him, the judge could consider, for instance, if there are other cases pending against the accused, and whether or not he or she is a flight risk.  Ampatuan’s case is non-bailable, hence his counsel is allowed to petition for bail under Rule 114, Sections 6 and 7 of the Rules on Criminal Procedure, Salvador elucidated.

Section 6 defines a capital offense as “an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.” Furthermore, it adds, “no person charged with a 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 state of the criminal prosecution” (Section 7).

In a petition for bail, the prosecution’s burden is to show that the evidence is strong so that the court may decide not to grant bail.  This is the reason why the prosecution wants to present witness who could bolster the case against the accused’s petition for bail.

Salvador said the defense panel, for its part, will try to show that the evidence of guilt is not strong.  If it succeeds in doing so, the accused may be allowed to post bail in an amount to be determined by the judge.

If the judge decides to grant bail to the accused, Salvador stressed, “it does not mean that the prosecution has already lost the case, there is still a trial where they can pick up the case.”

In the same vein, he cautioned, if the judge decides to reject the bail petition, it does not mean that the court has rendered a guilty verdict on the accused.

Show Cause Order

This order by the judge directed the prosecution and defense panels to separately explain their legal basis on the petition for bail filed by the accused.


The decision of the judge to discuss the arraignment of the accused before the start of the bail hearing, was, in Salvador’s view, “a good move.”  There is jurisprudence allowing one to petition for bail even without an arraignment, but the judge perhaps decided to have the accused arraigned in order to protect the case, he observed.

Because the arraignment is over, the court can now proceed with the trial even in the absence of the accused, he clarified.  “That’s the mandate of the law…such that even if the accused escapes, the court can proceed with the trial because he (the accused) has already been arraigned,” he added.

Salvador, who heads the Integrated Bar of the Philippines (IBP)-Quezon City chapter, said the Constitution provides that the arraignment should have been conducted in a language known and understandable to the accused.

Preliminary Conference, Pre-Trial

After an arraignment, pre-trial and modes of discovery follow, according to the 2004 guidelines of the Supreme Court.

According to Salvador, a few days before the pre-trial, a preliminary conference could be called to mark the documents or exhibits to be presented by the parties, to consider other matters, and to “ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits and consider such other matters as may aid in the prompt disposition of the case.”

A pre-trial is for identification of issues, marking of documents, admissions and stipulations, and the number of witnesses to be presented so that all the parties will have an idea about how the trial will proceed.

Salvador said that perhaps the defense wanted to proceed to a preliminary conference and pre-trial because with the number of witnesses scheduled to testify in the bail hearings, the defense would hardly have any hint of what a witness will say or not say, and whether these have some or no bearing at all on the November 23 incident.

During the “trial proper,” the prosecution and the defense can decide to just adopt the testimonies of the witnesses to avoid repeating those that had been offered at the bail hearings.  What is important to note, Salvador said, is that all the parties are informed,  and that no evidence is allowed to be presented and offered during the trial other than those identified and marked during the pre-trial,  except when allowed by the court for good cause shown. – PCIJ, February 2010