CHR: Dignity of all

Commonwealth Avenue, U.P. Complex, Diliman 1101 Quezon City Philippines Tel. Nos. (02) 294 8704 (02) 925 3886

HUMAN RIGHTS ADVISORY ON PROTECTING THE RIGHTS OF

PERSONS DEPRIVED OF LIBERTY (PDLs) DURING THE

COVID-19 CRISIS

AND EARLY RELEASE OF OLDER PERSONS, LOW RISK

INMATES AND PERSONS WITH CHRONIC MEDICAL

CONDITION OR BAILABLE OFFENSES

CHR (V) A2020-011

The Commission on Human Rights (hereinafter, the ‘Commission’), as the

country’s national human rights institution and mandated by the 1987 Constitution to

protect and promote human rights1 issues this advisory to (1) recommend measures to

protect the rights of all Persons Deprived of Liberty (PDLs) during the Coronavirus

Disease 2019 (COVID-19) pandemic and enhanced community quarantine; and (2) call

on all related and concerned government authorities to seriously look into the early

release of older persons, low risk inmates and persons with chronic medical condition or

with bailable offenses.

COVID-19: A Ticking Time Bomb in Places of Detention

On December 27, 2019, Dr. Zhang Jixian of Hubei Provincial Hospital in China

documented that a novel corona virus had broken out among the population.2 In the

months that followed, the SARS-COV-2 virus was found to have spread to around 190

countries, areas or territories prompting the World Health Organization (WHO) to declare

a global pandemic on March 11, 2020.3 As of this writing, there are 2,719,897 confirmed

cases of COVID-19, the highly contagious disease caused by SARS-COV-2 virus and

187, 705 deaths.4

The prisons and jails are among the centers of attention of many affected

countries. They are potential breaking points during this health emergency as these

facilities have poor air circulation and PDLs live, sleep and eat within their closed

overcrowded confinements. Bathrooms, toilets, dining areas, and recreational facilities

are shared. By their very nature, social distancing is almost nil, if not impossible. Prisons

1 1987 Constitution, Article XIII, Section 17-19.

2 “1st known case of coronavirus traced back to November in China” by Jeana Bryner, Live Science, available at

https://www.livescience.com/author/jeanna-bryner (last accessed on April 5, 2020) 3 World Health organization declares the coronavirus outbreak a global pandemic, CNBC available at:

https://www.cnbc.com/2020/03/11/who-declares-the-coronavirus-outbreak-a-global-pandemic.html (last accessed on April 5, 2020). 4 Coronavirus disease 2019 (COVID-19) Situation Report – 95 (Highlights and Situation in Numbers) as of April 25, 2020 available

at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200425-sitrep-96-covid-19.pdf?sfvrsn=a33836bb_2 last accessed on April 26, 2020.

2

and jails are hotbeds for fast transmission of highly contagious diseases, COVID-19

included.

PDLs are not exactly isolated and prisons are not totally closed environments.

COVID-19 infection is likely. Every day, prison and jail officials and employees,

medical staff, volunteers, and visitors come to these facilities and return to their families.

If one PDL gets infected, the rest of the prison population will likely catch the virus.

When this happens, it will definitely be a huge disaster. 5

The situation in places of detention in the Philippines is not different. In fact, the

Philippines tops the World Prison Brief6 list of countries with overloaded prisons and

jails. Overcrowding have been for decades a problem of jails and prisons in the

Philippines. 2019 figures from the Bureau of Jail Management and Penology (BJMP),7

disclose a congestion rate of 450%. The total ideal capacity of our jails is only 24,248 but

the total population is 133,316 with a variance of 109,068. The highest congestion is

recorded in Region 9 with 811% followed by NCR at 649% and Region 7 with 619%. As

of June 30, 2017, the Bureau of Corrections (BuCor)8 reported 41,258 PDLs for its

incarceration facilities with an ideal capacity of only 19,268 individuals or a 214%

occupancy rate and 114% congestion rate.

To protect PDLs from COVID-19, the BuCor, on March 11, 2020, has temporarily

suspended visitation rights in all of its facilities.9 Later, BuCor expanded the restriction to

include suspension of visits from religious organizations, non-government organizations,

foreign embassies, and consulates and other humanitarian, educational, business or

political missions.10

Visits from doctors and lawyers are only allowed on a case-to-case

basis and they shall undergo strict screening before they are given access inside prison.

Relatives’ inquiries on PDLs may be done through SMS or Viber messages or e-mail.11

Disinfection protocols were, likewise, conducted and quarantine schemes were

implemented limiting the movement of personnel.12

At the National Bilibid Prison,

temporary tents were built to address congestion, and a COVID-19 24-hour monitoring

center was established.13

Also on March 11, 2020, the BJMP suspended visits to all jails in the National

Capital Region, Ilocos Region, Davao Region, some jails in Central Luzon and

5 While it may not be a prison, the harrowing story in the psychiatric ward of Daenam Hospital in South Korea is very instructive.

Of the then 3,150 confirmed cases in South Korea, 101 were from the Daenam psychiatric ward. Except for two, all of the

facility’s service users got infected and seven of them have already died. The facility was locked down to contain the spread of

the virus but the lockdown was a death sentence to many inside the facility. Allegedly, the virus got its way to the Daenam

psychiatric ward when some members of the Shincheonji Church of Jesus5 attended the wake of their religious leader at the

basement of the hospital. (How a South Korean psychiatric ward became a ‘medical disaster’ when coronavirus hit, by Min Joo

Kim Washington Post available at https://www.washingtonpost.com/world/asia_pacific/how-a-south-korean-psychiatric-ward-

became-a-medical-disaster-when-coronavirus-hit/2020/02/29/fe8f6e40-5897-11ea-8efd-0f904bdd8057_story.html last accessed

on March 25, 2020.) 6 Highest to Lowest- Occupancy level (based on official capacity) available at

https://www.prisonstudies.org/highest-to-lowest/occupancy-level?field_region_taxonomy_tid=All last accessed March 25, 2020 7 Congestion Rate of Congested Jails by BJMP available at

https://www.foi.gov.ph/requests/aglzfmVmb2ktcGhyHgsSB0NvbnRlbnQiEUJKTVAtMjk0MDIzMzcwOTQ2DA last accessed on March 25, 2020. 8 Inmate Profile available http://www.bucor.gov.ph/BuCor%20Land%20Area.html last accessed on March 25, 2020.

9 The BuCor facilities include New Bilibid Prison in Muntinlupa City, the Correctional Institute for Women in Mandaluyong City,

the Davao Prison and Penal Farm, the Iwahig Prison and Penal Farm in Palawan province, the San Ramon Prison and Penal Farm in Zamboanga City, the Sablayan Prison and Penal Farm in Occidental Mindoro, and the Leyte Regional Prison. 10

“BuCor expands suspension of inmates’ visitation rights” by Tech Torres-Tupaz, inquirer.net, March 13, 2020 available at https://newsinfo.inquirer.net/1241397/bucor-expands-suspension-of-inmates-visitation-rights last accessed on April 17, 2020. 11

Ibid. 12

Report to the Joint Congressional Oversight Committee Pursuant to Section 5 of Republic Act No. 11469, Otherwise Known as the “Bayanihan to Heal As One Act, available at: https://www.officialgazette.gov.ph/downloads/2020/04apr/20200413-Report-to-the-Joint-Congressional-Oversight-Committee-RRD.pdf last accessed on April 16, 2020. 13

Ibid.

3

CALABARZON. 14

In areas where visits are not suspended, strict precautionary measures

are put in place including prohibition of entry to symptomatic visitors, no-contact policy

among visitors and inmates, proper ventilation in areas designated for visitations and

massive information drive among personnel, inmates and visitors.15

Virtual visits can be

made through “e-dalaw” and relatives can coordinate with jail staff for schedule.16

Several days after the suspension of visits in NCR and other regions, Secretary Eduardo

Año of the Department of Interior and Local Government (DILG) announced that visits

in all other jails nationwide are already suspended.17

SARS-COV-2 Virus Spreads to Philippine

Jails and Prisons

COVID Cases in BJMP Jails

Secretary Año assured that stringent measures will be implemented to ensure that

all BJMP jails are 100% COVID-free.18

On March 30, 2020, however, BJMP reported that a female paralegal officer

posted at the Quezon City Jail Male Dormitory tested positive for the new coronavirus.19

Likewise, a PDL in the same Quezon City Jail is suspected to have died of COVID-19.20

As a precautionary measure, 1521

PDLs at the Quezon City Jail Male Dorm who have

associated with the victim were immediately isolated.22

After the death of the PDL,

BJMP, with support from the International Committee of the Red Cross, built an isolation

facility at its new jail site in Payatas, Quezon City.23

Three other isolation facilities were

planned to be set-up in Muntinlupa, Pampanga and Quezon Province.24

On April 17, 2020, Jail Chief Inspector Xavier Solda, spokeperson of the BJMP,

announced that of the 15 PDLs who were isolated in Payatas, 9 of them tested positive

for the new corona virus. Also, 9 BJMP personnel contracted COVID-19.25

Contact

tracing was conducted on all PDLs in Quezon City Jail who have associated with the 9

PDLs who tested positive.26

14

“COVID-19 spread prompts 1-week suspension of visits in Philippine prisons” available at https://news.abs-cbn.com/news/03/10/20/covid-covid19-coronavirus-suspension-visitation-philippines-prisoners-prisons last accessed on March 27, 2020; and Jail visits temporarily suspended amid Covid-19 by Benjamin Pulta available at https://www.pna.gov.ph/articles/1096263 last accessed on March 27, 2020.. 15

Ibid. 16

Ibid 17

Jails ‘100 percent safe’ from COViD-19 – DILG. Cabrera, R., MSN News. March 20, 2020. Available at https://www.msn.com/en-ph/news/national/jails-100-percent-safe-from-covid-19-%E2%80%94-dilg/ar-BB11tbV3, last accessed on April 16, 2020. 18

Ibid. 19

“BJMP employee tested positive for COVID-19, spokesman says” by Anna Felicia Bajo /RSJ, GMA News, available at https://www.gmanetwork.com/news/news/nation/731894/bjmp-personnel-tested-positive-for-covid-19-spokesman-says/story/ last accessed on April 7, 2020. 20

“Probe set for QC inmate's possible coronavirus-related death” by Joahna Lei Casilao/BAP, GMA News. April 4, 2020 available at https://www.gmanetwork.com/news/news/metro/732615/probe-set-for-qc-inmate-s-possible-coronavirus-related-death/story/ last accessed on April 8, 2020. 21

On April 13, 2020, BJMP stated that there were 21 PDLs who were “swabbed” for corona virus and isolated. “21 detainees in isolation, swabbed for coronavirus – BJMP” by Kian Buan, Rappler, available at https://www.rappler.com/nation/257801-bjmp-says-detainees-isolation-swabbed-for-coronavirus, last accessed on April 16, 2020. 22

“15 inmates isolated over coronavirus infection” by Romina Cabrera, The Philippine Star, April 6, 20202 available at https://www.philstar.com/nation/2020/04/06/2005730/15-inmates-isolated-over-coronavirus-infection, last accessed on April 8, 2020. 23

“BJMP builds coronavirus isolation facility” Magsambol, B., Rappler. April 9, 2020. Available at https://www.rappler.com/nation/257473-bjmp-builds-coronavirus-isolation-facility. Last accessed on April 16, 2020. 24

Ibid. 25

“9 detainees, 9 personnel tested positive for COVID-19 -BJMP spox” by Anna Felicia Bajo, GMA News available at: https://www.gmanetwork.com/news/news/nation/734436/9-inmates-9-personnel-test-positive-for-covid-19-bjmp-spox/story/, last accessed on April 20, 2020. 26

Ibid.

4

On April 19, 2020, a 47-year-old male PDL from the Cebu City Jail died of the

disease. 27

He expired a day after he complained of difficulty in breathing and after swab

sample was taken from him at the Vicente Sotto Memorial Medical Center to check for

the coronavirus.28

The death prompted the conduct of mass testing inside the jail that has

6,000 PDLs29

and the preparation of building within the jail as isolation facility.30

On

April 22, 2020, the BJMP announced that, following the massive testing, there are

additional 123 PDLs and personnel who tested positive for SAR-COV-2 virus bringing to

127 confirmed COVID-19 cases in Cebu City Jail – 114 PDLs and 13 BJMP personnel.

On April 24, 2020, the DOH-Central Visayas announced the first confirmed

COVID-19 case in the neighboring Mandaue City Jail which has 2,100 PDLs.31

On April 25, 2020, 63 more PDLs were reported to have tested positive of the

virus at the Cebu City Jail.32

As of this writing, there are now 190 confirmed cases in

Cebu City Jail.

COVID Cases in BuCor Prisons

On April 18, 2020, Undersecretary Markk Perete, spokeperson of the Department

of Justice, confirmed a BuCor Facebook post that a 72-year-old woman PDL at the

Correctional Institution for Women (CIW) tested positive for the SARS-COV-2 virus.33

Perete said the PDL has a history of Type 2 Diabetes Mellitus and diagnosed at Sta. Ana

Hospital to have a community-acquired pneumonia.34

On April 21, 2020, CIW Superintendent Virginia Mangawit reported that of the

42 PDLs and 9 BuCor medical staff who were traced to have interaction with the first

COVID-19 patient, 18 PDLs and 1 medical staff members were found positive for SARS-

COV-2 virus by PCR35

tests done by the Philippine Red Cross.36

Aside from disinfection

and wearing of personal protective equipment (PPEs), contact tracing, isolation of those

possibly exposed in identified quarantine areas and further testing to suspects and

probable cases were done in CIW. Its medical personnel was augmented and more

provisions for vitamins and food are being given to boost the immune system of PDLs

and CIW staff.37

On April 23, 2020, the first PDL in the National Bilibid Prison confirmed to have

contracted the disease died.38

27

”Inmate at Cebu City Jail dies from COVID-19” CNN Philippines April 20, 2020 available at: https://cnnphilippines.com/regional/2020/4/20/cebu-city-jail-inmate-covid-19-death.html, last accessed on April 25, 2020. 28

Ibid. 29

“Mass testing at Cebu City jail after inmate who died tests positive for coronavirus” by Ryan Macasero, April 21, 2020, Rappler available at: https://www.rappler.com/nation/258555-coronavirus-positive-inmate-death-prompts-testing-cebu-city-jail last accessed on April 25, 2020. 30

Ibid. 31

“Mandaue City Jail inmate tests positive for coronavirus” by Ryan Macasero, Rappler April 24, 2020 available at: https://www.rappler.com/nation/258993-mandaue-city-jail-coronavirus-cases-april-24-2020#cxrecs_s last accessed on April 26, 2020. 32

“63 more inmates at Cebu City Jail test positive for coronavirus: mayor” ABS-CBN News April 25, 2020 available at

https://news.abs-cbn.com/news/04/25/20/63-more-inmates-at-cebu-city-jail-test-positive-for-coronavirus-mayor, last accessed on April 25, 2020. 33

“Inmate, 72, at women's correctional facility tests positive for COVID-19, authorities say” by Mike Navallo, ABS-CBN News,

available at: https://news.abs-cbn.com/news/04/18/20/inmate-72-at-womens-correctional-facility-tests-positive-for-covid-19-

authorities-say last accessed on April 20, 2020. 34

Ibid. 35

Polymerase chain reaction. 36

“BuCor COVID-19 Update Today, 21 April 2020”, Facebook page of the Bureau of Corrections available at https://www.facebook.com/piobucorofficial/posts/723093955098582 last accessed on April 26, 2020. 37

Ibid. 38

“BuCor COVID-19 Update Today, 1700H 24 April 2020”, Facebook page of the Bureau of Corrections available at: https://www.facebook.com/piobucorofficial/?__tn__=kC-

5

On April 24, BuCor reported two more confirmed COVID-19 cases at the CIW

bringing to 22 the number of confirmed cases at the women correctional.39

Observing

strict transport protocols and in collaboration with DOJ, DOH and other BuCor partners,

the two PDLs were transferred to Site Harry (NBP Quarantine Area) where they joined

the other CIW PDLs who earlier tested positive for the virus.40

On April 25, 2020, the BuCor COVID-19 Update (1800H) divulged that 27 more

PDLs from CIW tested positive bringing to 47 the total number of COVID cases at the

CIW.41

The 27 PDLs were immediately transferred to Site Harry at the NBP compound.42

Calls for Release of PDLs Especially Older Persons, Low Risk and

PDLs with Chronic Medical Condition or with Bailable Offenses

Given the threats of COVID-19 to places of detention, KAPATID, 43

Prisoners’

Enhancement and Support Organization (PRESO),44

Human Rights Watch,45

Justice

Reform Initiative,46

SELDA,47

Karapatan,48

Makabayan Bloc,49

Senator Leila De Lima,50

and Dr. Raymund E. Narag51

called for the release of political prisoners, sickly, older

persons and low-level offenders especially those who are not violent and with bailable

offenses. Many of these PDLs have long been in jails because they cannot post bail.

A considerable number of older persons are also in jails and prisons. In 2018, there

are around 4,500 PDLs who are “senior citizens” or persons who are at least 60 years old

- BJMP then has 3,043 and BuCor has 1,483. Hundreds of these older persons are aged

R&eid=ARAYsm49Qu5kQZ2USQXQxnl5ly4dVG_Ky1Un4n9cR42stiKF4ZbQOd2AQ7vqID92qdC68WI5BdsFLfmW&hc_ref=ARR2kdRCV8bVo1x6OYwfZFbFzITM5I_3WqYZ08l9uuOo4Pset70PlDUi7Funu4URpdE&fref=nf last accessed on April 26, 2020. 39

“BuCor COVID-19 Update Today, 1400H 24 April 2020”, Facebook page of the Bureau of Corrections available at https://www.facebook.com/piobucorofficial/?__tn__=kC-R&eid=ARAYsm49Qu5kQZ2USQXQxnl5ly4dVG_Ky1Un4n9cR42stiKF4ZbQOd2AQ7vqID92qdC68WI5BdsFLfmW&hc_ref=ARR2kdRCV8bVo1x6OYwfZFbFzITM5I_3WqYZ08l9uuOo4Pset70PlDUi7Funu4URpdE&fref=nf&__xts__[0]=68.ARDswh8BUPDclLieztwXMGG-oGhsmx7jCL2GSogk2JSafBoXqYGR2CEd8CQlvOAdwcN4dXOTcGccSVTI8f0ylcvi0lvIO3II81xpy31kGhNGY8-iQ_84ccDuB2GlJsRuOq81fTQqlhME9yCD-DHqjfRbQAzJm3v3wvT0jGIP-YgubWncNxYHMC9bXskxQYxO1Mh1wrl7olr0NPWpwisFzTFDuRBme7Ev2y84DGMRix6n4sAPMq48iJlLNmjCRfi0HPdFCur8JoWeXG7fttzyh3FviyY-LLU9vBOLfZ8eX6Te4tCH1hA9sG6AExsY4zgDaL9-JxEmwQReOvMKmh4 40

Ibid. 41

“BuCor COVID-19 Update Today, 1800H 25 April 2020”, Facebook page of the Bureau of Corrections available at https://www.facebook.com/piobucorofficial/?__tn__=kC-R&eid=ARAYsm49Qu5kQZ2USQXQxnl5ly4dVG_Ky1Un4n9cR42stiKF4ZbQOd2AQ7vqID92qdC68WI5BdsFLfmW&hc_ref=ARR2kdRCV8bVo1x6OYwfZFbFzITM5I_3WqYZ08l9uuOo4Pset70PlDUi7Funu4URpdE&fref=nf last accessed on April 26, 2020. 42

Ibid. 43

“Group call for mass release of elderly and political prisoners amid corona virus threat” by Mike Navallo, ABS-CBN News, March 11, 2020 available at https://news.abs-cbn.com/news/03/11/20/group-calls-for-mass-release-of-elderly-and-political-prisoners-amid-coronavirus-threat, last accessed on April 16, 2020. 44

“ ‘Prison emergency’ pushed to prevent COVID-19 spread in ‘horribly crowded’ PH jails” by Christian Esguerra, ABS-CBN News April 7, 2020 available at https://news.abs-cbn.com/news/04/07/20/prison-emergency-pushed-to-prevent-covid-19-spread-in-horribly-crowded-ph-jails last accessed on April 16, 2020. 45

“Philippines: Reduce Crowded Jails to Stop COVID-19 -Release Low-Level Offenders; Prioritize Older and Ill Prisoners” Human Rights Watch, April 6, 2020 available at https://www.hrw.org/news/2020/04/06/philippines-reduce-crowded-jails-stop-covid-19 last accessed on April 16, 2020. 46

“Guevarra: DOJ studying plea to release low-risk inmates amid COVID-19 threat” by Mike Navallo, ABS-CBN News, April 15, 2020 Available at: https://news.abs-cbn.com/news/04/15/20/guevarra-doj-studying-plea-to-release-low-risk-inmates-amid-covid-19-threat last accessed on April 26, 2020. 47

Ibid. 48

Ibid. 49

Ibid. 50

“De Lima to IATF: Allow systematic release of inmates amid COVID-19” by Ian Biong, inquirerdotnet April 1, 2020 available at https://newsinfo.inquirer.net/1252235/fwd-de-lima-to-iatf-allow-systematic-release-of-inmates-amid-covid-19 last accessed on April 16, 2020. 51

“Temporary Relief for Filipino Persons Deprived of Liberty (PDL) during the CoViD-19 Crisis” by Raymund E. Narag, PhD Southern Illinois University Carbondale and Clarke Jones, PhD Australian National University. A copy of the article was sent to the Commission.

6

70 years old and above.52

Many PDLs are also reported to be suffering from various

chronic illnesses such as asthma, diabetes, heart ailments and lung disease. It shall be

recalled that in a press briefing on September 17, 2019 and amid the issue then on the

early release of some heinous crimes convicts under the Good Conduct Time Allowance

(GCTA), President Rodrigo Roa Duterte was asked whether he will consider the release

of older persons from the New Bilibid Prison. He replied that he wanted PDLs who are

70 years old and above to be considered for parole. Further, he stated that he will ask the

administration of the prisons or the Secretary of Justice to fast-track the cases of those

who are ill and old.53

On April 8, 2020, a petition for temporary release amid the COVID-19 pandemic

was filed before the Supreme Court. Twenty two PDLs asked the high court for their

temporary liberty anchored on humanitarian grounds and invoked Court’s application of

equity of jurisdiction.54

Further, the petitioners prayed for a “fair chance at surviving the

devastating impact of the COVID-19 outbreak in spaces that are not blighted with

overcrowding and lack of access to hygiene measures and medical care.”55

With the poor

state of places of detention in the country, older persons, pregnant women and those with

pre-existing medical condition are very susceptible to the highly contagious disease.56

Respondents in the petition are DILG Secretary Año, DOJ Secretary Menardo Guevarra,

BJMP Chief Jail Director Allan Sullano Iral, BuCor Director General Gerald Bantag and

other officials of BuCor and BJMP.

On April 17, 2020, the Supreme Court conducted its historic first virtual en banc

session to tackle the petition for temporary release.57

Without giving due course to the

petition, the Supreme Court ordered the government through the Office of the Solicitor

General to file58

its comment until April 24, 2020 and the respondents to take all

preventive measures necessary to address COVID-19 and to submit verified report within

the same period.59

On April 20, 2020, the Office of the Court Administrator issued OCA Circular No.

91-2020 reminding all judges of the first and second level courts to adhere to the

Guidelines for Decongesting Holding Jails by Enforcing the Rights of the Accused to

Bail and to Speedy Trial as prescribed in March 18, 2014 SC en banc Resolution A.M.

52

Too old for jail? At least 4,500 senior citizens incarcerated in PH by Rambo Talabong available at https://www.rappler.com/nation/216616-number-of-senior-citizens-jailed-philippines-as-of-november-2019 last accessed on March 25, 2020. 53

“Duterte wants release of inmates aged 70 and older” by Joyce Ann L. Rocamora, https://www.pna.gov.ph/articles/1080727 last accessed on March 19, 2020; “Duterte says to release inmates aged 70 up” by John Gabriel Agcaoili, https://news.abs-cbn.com/news/09/17/19/duterte-says-to-release-inmates-aged-70-up last accessed on March 27, 2020. 54

“22 prisoners ask Supreme Court for temporary freedom amid COVID-19 crisis” by CNN Philippines April 8, 2020 available at:

https://cnnphilippines.com/news/2020/4/8/supreme-court-prisoners-covid-19.html?fbclid=IwAR2_ofrSDG_VopUM7PviUTwuVBfkGTQB61OqnRdcpjvEeU7xdfn30UcYTBU last accessed on April 26, 2020. 55

Ibid. 56

Ibid. 57

“SC to government: Answer inmates' petition for temporary release amid COVID-19 crisis” by Kristine Joy Patag, Philstar.com) April 17, 2020 available at https://www.philstar.com/headlines/2020/04/17/2007927/sc-government-answer-inmates-petition-temporary-release-amid-covid-19-crisis last accessed on April 26, 2020. 58 On April 24, 2020, the Office of the Solicitor General (OSG) submitted its Comment. OSG argues that the congestion of jails

and prisons is not among the grounds for the release of PDLs including older persons and the sickly. Solicitor General Calida further states that the failure of Philippine prisons and jails to meet the high international standards does not warrant release of PDLs. In fact, the petition did not show any complacency on the part of the State and that the existing guidelines on release of PDLs demonstrate that government has already adopted measures to decongest places of detention. With medical services available in prison and jails, it will be better for PDLs to remain incarcerated during the pandemic. (“Congestion not reason:' Calida blocks petition to release vulnerable prisoners” by Lian Buan, Rappler, April 25, 2020 available at: https://www.rappler.com/nation/259031-calida-osg-comment-supreme-court-petition-release-prisoners-coronavirus last accessed on April 25, 2020. 59

Ibid.

7

No. 12-11-2-SC specifically Sections 560

on release after service of minimum imposable

penalty and 1061

on provisional dismissal of said guidelines.

The circular, likewise, directed all judges of the first and second level courts to:

(1) immediately conduct inventory of their pending criminal cases which may be

covered by Sections 9 and 10;

(2) motu proprio, act on cases where PDLs who have been detained for a period

equal to at least the minimum of the penalty for the offense charged; and

(3) release the PDLs on his recognizance, if warranted. The said courts shall,

however, be assured that the accused can be located while their cases are

undergoing trial.

The motions for recognizance and provisional dismissal may be considered urgent

and must be immediately set for hearing. Release orders may be transmitted

electronically following the pertinent rules under SC Administrative Circular 33-202062

and OCA Circular No. 89-2020.63

Upholding the PDLs’ Rights during the COVID-19 Crisis

While the Commission recognizes all the measures imposed by prison and jail

authorities to combat the spread of the new virus among the PDLs, we remind all

concerned government agencies to respect and uphold PDLs’ rights. In dealing with

COVID-19, measures put in place by authorities must always respect, protect and fulfill

all the rights of PDLs.

The 1987 Constitution declares that the Philippines “values the dignity of every

human person and guarantees full respect for human rights”64

It also prohibits the

infliction of cruel, degrading and inhuman punishment especially to PDLs.65

“The Anti-

Torture Act of 2009” (R.A. No. 9745)66

penalizes torture and other cruel, degrading and

inhuman treatment including solitary confinement.

60

“Sec.5 Release after service of minimum imposable penalty. – The accused who has been detained for at least equal to the minimum of the penalty for the offense charged against him shall be ordered release motu proprio or upon motion and after notice and hearing, on his own recognizance without prejudice to the continuation of the proceedings against him. [Sec. 16, Rule 114 of the Rules of Court and Sec. 5 (b) of R.A. 103 10389].” 61

“Sec. 10. Provisional Dismissal.- (a) When the delay are due to the absence of an essential witness whose whereabouts are unknown or cannot be determined and, therefore, are subject to exclusion in determining compliance with the with the prescribed time limits which caused the trial to exceed one hundred eighty (180) days, the court shall provisionally dismiss the action with the express consent of the detained accused. (b) When the delays are due to the absence of an essential witness whose presence cannot be obtained by due diligence though his whereabouts are known, the court shall provisionally dismiss the action with the express consent of the detained accused provided:

(1) the hearing in the case has been previously twice postponed due to the non-appearance of the essential witness and both the witness and the offended party, if they are two (2) different persons, have been given notice of the setting of the case for third hearing, which notice contains a warning that the case would be dismissed if the essential witness continues to be absent; and (2) there is proof of service of the pertinent notices of hearings or subpoenas upon the essential witness and the offended party at their last known postal or e-mail address or mobile phone numbers.

(c) For the above purpose, the public or private prosecutor shall first present during the trial the essential witness of witnesses to the case before anyone else. An essential witness is one whose testimony dwells on the presence of some or all of the elements of the crime and whose testimony is indispensable to the conviction of the accused.” 62

Online Filing of Complaint or Information and Posting of Bail due to the Rising Cases of COVID-19 Infection, March 31, 2020 63

Implementation of Supreme Administrative Circular No. 3-2020 on the Electronic Filing of Criminal Complaints and Informations, and Posting of Bails (April 3, 2020) 64

1987 Constitution, Article II, Section 11. 65

Ibid, Artcile III, Section 19 (1) 66

“An Act Penalizing Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Prescribing Penalties Therefor”

8

Under the Mandela Rules, all PDLs must be treated with respect due to their

inherent dignity and value as human.67

They shall also be provided with (1) food of

nutritional value adequate for health and strength, of wholesome quality and well

prepared and served; and (2) drinking water available whenever the PDL needs it.68

Adequate sanitary installations must be afforded such that PDLs are enabled to comply

with the needs of nature and in clean and decent manner69

including adequate bathing

and shower installations. All parts of the incarceration facilities regularly used by PDLs

must be properly maintained and kept scrupulously clean at all times.70

As to health, PDLs must enjoy health care with similar standards to those available

in the community and should have access to necessary health-care services free of charge

and without discrimination.71

These services should be organized in close relationship to

the general public health administration and in a way that ensures continuity of treatment

and care, including for HIV, tuberculosis and other infectious diseases, as well as for

drug dependence.

The COVID-19 pandemic poses real threats to the lives of PDLs. To prevent

coronavirus infection and to arrest the spread of COVID-19 inside places of detention,

protective measures have to be adopted. Hence, the manner through which PDLs’ rights

are fulfilled including the rights (1) to contact the outside world especially the family and

friends through correspondence and receiving visits72

and (2) to be kept informed

regularly of the more important items of news73

may have to adjust and be modified

during the health crisis.

Along these matters, the following guidelines focusing on PDLs during the

COVID-19 pandemic coming from the Inter-Agency Standing Committee of the Office

of the High Commissioner on Human Rights and World Health Organization,74

the Inter-

American Commission on Human Rights75

and the World Health Organization-Regional

Office of Europe76

are instructive:

(1) Overcrowding. Public authorities must take immediate measures to address

overcrowding in prisons and other places of detention. Steps should include

probation, house arrest and release of PDLs especially children, older persons,

persons with chronic diseases, pregnant women with children in their care, low

risk individuals, persons who committed petty offenses and those not

recognized under international law and those with imminent release dates.

Before release, medical screening and measures should be taken to ensure that

ill people are taken care of, and proper follow-up and monitoring are

undertaken.

67

Mandela Rules, Rule 1 68

Mandela Rules 69

Ibid. Rule 15 70

Ibid. Rules 16 and 17 71

Mandela Rules, Rule 24. 72

Mandela Rules, Rule 58 73

Ibid., Rule 68 74

COVID-19: Focus on Persons Deprived of their Liberty. Inter-Agency Standing Committee. Office of the United Nations High Commissioner and the World Health Organization. March 2020. Available at: https://interagencystandingcommittee.org/system/files/202003/IASC%20Interim%20Guidance%20on%20COVID-19%20%20Focus%20on%20Persons%20Deprived%20of%20Their%20Liberty.pdf. Last accessed on April 17, 2020 75

Press Release. The IACHR urges States to guarantee the health and integrity of persons deprived of liberty and their families in the face of COVID-19 pandemic. 31 March 2020. Available at: http://www.oas.org/en/iachr/media_center/PReleases/2020/066.asp last accessed on April 17, 2020. 76

Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention. March 15, 2020. Available at: http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19-in-prisons.pdf last accessed on April 17, 2020.

9

Risk of catching the virus compels the improvement of conditions in detention

places, reduction of overcrowding and compliance to international standards.

The threat shall also be an occasion of engagement between concerned

agencies on the risks and opportunities related to pre-trial detention and

implementation of non-custodial measures;

(2) PDLs with no Residence After Release. States must take steps to provide

adequate housing and reasonable accommodation such as but not limited to

using vacant and abandoned housing units that are livable and culture-

sensitive, and available short-term rentals;

(3) Food, Health, Sanitation and Quarantine Measures. States must adjust the

conditions of detention relative to food, health, sanitation and quarantine

measures to prevent the spread of COVID-19. Procedures allowing PDLs at

higher risk to be separated from others in the most effective and least

disruptive manner possible shall be considered. Likewise, places of detention

shall provide medical attention and provide special attention to vulnerable

PDLs including older persons;

(4) Access to Same Standard of Health Care. PDLs should enjoy, without

discrimination on the grounds of their legal status, adequate healthcare with

standards similar to that of the outside community.

(5) Isolation and Quarantine Measures Must Be Legal, Proportional and

Necessary. Detention measures introduced to manage risks to public health

must be necessary, proportionate and subject to regular review. They shall not

be arbitrary or discriminatory. They must be based on individual assessment,

authorized by law in accordance with applicable due process and procedural

safeguards and must be for a limited period of time and subject to periodic

review;

(6) Dissemination of Information on Preventive and Health Measures. Wide

dissemination of information on preventive and mitigating health measures

shall also be undertaken for PDLs;

(7) Order and Security. To prevent any violence related to COVID-19 pandemic,

protocols must be established guaranteeing security and order in places of

detention; and

(8) Contact with the Outside World. Authorities of prisons and jails must respect

the human rights of PDLs and persons in their custody must not be cut-off

from the outside world and must have access to information.

Early Release Protects all PDLs, Officers and Staff of Detention Places

Unless there is clear evidence that they will pose unreasonable risk to the physical

safety of the public when freed, PDLs aged 60 and up, PDLs with chronic medical

condition77

or with bailable offenses and low risk inmates should be released from prison

especially amidst the imminent threat of COVID-19. Releasing these PDLs will not only

77

According to WHO, older persons and those with chronic medical conditions are more likely to develop serious illness when infected by COVID-19 (https://www.who.int/health-topics/coronavirus#tab=tab_1 last accessed on March 24, 2020).

10

protect them but also the other PDLs, officers and staff of prisons as their release lessen

the strain on the resources of detention places.

For the early release of PDLs, Drs. Narag and Jones proposed the following

steps:78

(1) BJMP will write the Supreme Court (SC) stating therein its assessment of the

current jail health capacities;79

(2) The SC-Office of Court Administrator shall use the letter as a basis for

corrective action;

(3) An SC Circular shall then be issued directing jail wardens nationwide to

identify first-time, low risk, non-violent, and bailable offenders for release;

(4) The list shall be submitted to judges; and

(5) Judges, on their discretion, can release the PDLs on their own recognizance, or

even on a “One Peso Bail.” The release is conditioned on their appearance on

court-appointed days. For monitoring purposes, the addresses of released PDLs

and contact details of their relatives will be obtained by wardens.

Citing the recommendations of Drs. Narag and Jones and the experiences in Iran,

Germany, Canada and the United States, the House Committee on Justice issued the

following recommendations:80

1. Creation of an ad hoc Committee to be composed of the Supreme Court, the

Commission on Human Rights, the Department of Justice, the Department of

Interior and Local Government, the Department of Health, the Philippine National

Police, the Bureau of Jail Management and Penology, Public Attorney’s Office,

National Prosecution Service, and the Integrated Bar of the Philippines. It shall

“immediately evaluate the situation of all provincial, city, and municipal jails, and

other detention facilities” and “to establish guidelines and procedures for the

temporary release of qualified persons deprived of liberty (PDLs) for humanitarian

reasons, in view of the national health emergency;”

Specifically, the ad hoc Committee shall:

(a) Determine the qualifications of PDLs who may be granted temporary

release to include first-time offenders, those who are 60 years old and above, those

with underlying health conditions associated with high risk of severe symptoms of

COVID-19, those who are detained for the commission of non-violent, bailable

offenses but have no capacity to post bail, and those with no history of jumping

bail;

(b) Identify highly congested jails and detention facilities for priority

processing; and

(c) Establish mechanisms for proper monitoring of released PDLs consistent

with the community quarantine procedures of the concerned local government unit

where the PDL is released, and penalties for violation of any condition of or

undertaking under the release;

78

“Temporary Relief for Filipino Persons Deprived of Liberty (PDL) during the CoViD-19 Crisis” by Raymund E. Narag, PhD Southern Illinois University Carbondale and Clarke Jones, PhD Australian National University. 79

In the alternative, the Public Attorney’s Office (PAO) can also make a national pleading in behalf of all the PDLs. 80

Recommendations to Peace and Order Cluster of the Defeat CoViD-19 Committee of the House of Representatives Re:

Decongestion of Jails and other Detention Facilities. April 6, 2020.

11

2. Conscious of the current limitations of the courts, its personnel, counsel of the

accused, and the community in general during the enhanced community quarantine:

(a) The Supreme Court shall determine the proper course of action based on

the Rules of Court, or if necessary, promulgate new rules. It may involve the

omnibus reduction of bail to one peso (Php1.00), or any amount affordable to

qualified PDLs to allow their temporary release at the earliest possible opportunity.

(b) Post-release monitoring and requirements and penalties for violations

shall ensure that the released PDL will appear in court once trial resumes.

Otherwise, trial in absentia shall proceed;

3. Qualified PDLs shall undergo SARS-COV-2 testing and be cleared by the

Department of Health before release; and

4. Released PDLs shall be subject to regular monitoring by barangay officials and the

Philippine National Police consistent with the quarantine guidelines and procedures.

Recommendations

With the highly contagious nature of COVID-19 and rapid local transmission in

the country, the places of detention cannot be totally COVID-19-free. This is shown by

the infection, first, of one female BJMP paralegal employee at the Quezon City Jail,

followed by the death of a male Quezon City Jail PDL suspected to have been caused by

COVID-19, infection of 9 PDLs who have associated with him and 9 BJMP personnel, 1

confirmed COVID-19 case in Mandaue City Jail, 190 confirmed cases in Cebu City Jail,

infection of 47 PDLs at the BuCor-managed Correctional Institution for Women and one

death due to COVID-19 at the National Bilibid Prison. Contingency plans and

procedures were already in place to deal with COVID-19 including measures to address

the plight of the PDLs in their very advance age and PDLs with chronic medical

conditions. In line with the foregoing, the Commission recommends the following:

On Protecting PDL Rights during and after the COVID-19 Emergency

(1) Adequate food and water shall be provided to PDLs for nourishment and for

hygiene. Under strict supervision, soap and hand sanitizers shall be provided in

jails and prisons. Common areas including lobby, reception areas and hallways

should be cleaned and sanitized after all staff, health workers, volunteers and

lawyers, if any, have already left. To ensure safety, temperature of officials,

employees, health workers and lawyers, if any shall be checked upon ingress

and egress of the facility. Realignment of funds or supplemental budget may be

necessary to implement these measures;

(2) During the COVID-19 emergency, PDLs must enjoy the same standards of

health care that are available outside prisons or jails, without discrimination.

PDLs should not be given healthcare services inferior to those given in the

wider community. Similar quality of health services in relation to COVID-19

must be provided. Considering that the provision of healthcare of PDLs is the

State’s responsibility, prison/jail authorities and other concerned authorities

12

must facilitate PDLs’ access to these health services like telemedicine when

there are no health workers in the facility and COVID-19 testing kits;

(3) BJMP and BuCor facilities shall establish adequate number of quarantine

facilities for PDLs suspected to have been infected or infected by the SARS-

COV-2 virus to address the surge of COVID-19 cases and to prevent its further

spread;

(4) Many prison and jail authorities have limited the contact of PDLs with the

wider world by suspending visits of relatives, friends and lawyers. While

limiting contact, authorities should ensure that PDLs are not cut-off from the

outside world. It shall be borne in mind that contact is essential to the mental

well-being of people in prison or jail. Hence, appropriate and sufficient

mechanisms should be in place to facilitate human contact such as through

sufficient availability of electronic mails, video or phone calls, “e-dalaw” that

should be widely implemented in all jails, prisons and other places of

detention;

(5) PDLs shall be kept informed on what is happening in the outside world

especially on COVID-19- related matters. PDLs should be informed as well on

precautionary measures to protect themselves and others from catching and

transmitting the virus;

(6) PDLs must be included in the National Action Plan for COVID-19 in

addressing the current health crisis;

(7) The current health emergency should be an opportunity of engagement of all

concerned authorities to address the perennial problem of congestion in places

of detention and discussion on the risk and opportunities of pre-trial detention

and adoption of non-custodial measures; and

(8) The immediate implementation of the Community Service Act (R.A. 11362)

allowing community service,81

in lieu of service in jail, as penalties for

offenses punishable by arresto menor (1 to 30 days imprisonment) and arresto

mayor (1 month and 1 day to six months imprisonment). R.A. 11362 was

signed into law on August 8, 2019.

Early Release of PDLs

(1) For humanitarian reasons and to decongest places of detention, older persons

aged 60 years old and above, PDLs with chronic medical condition, low risk

inmates, children, pregnant women and those with bailable offenses shall,

through all legal remedies and mechanisms available, be released from prison at

the earliest possible time.

However, PDLs’ vulnerabilities outside prisons or jails have to be carefully

assessed and addressed before releasing them. For instance, prison and jail

authorities must ensure that older persons or PDLs with chronic medical

condition are released only when family or community can provide sufficient

food and medical care. For some, it might be better to remain inside places of

81

“Community service shall consist of any actual physical activity which inculcates civic consciousness and is intended towards the improvement of a public work or promotion of a public service.” Section 3, R.A. No. 11362.

13

detention especially in facilities that offer adequate food provisions and health

services;

(2) To prevent the further congestion of jails and other places of detention, curfew

and ordinance violators should be temporarily released after undergoing the

necessary judicial processes;

(3) To make early release possible, the aforesaid ad hoc committee at the House

Committee on Justice that will study the proposal of temporary release of PDLs

must be created. The committee shall take into consideration the following:

(a) Qualifications, priorities and conditions;

(b) Evaluation of cases of all PDLs;

(c) Current laws on, but shall not be limited to, rights of the accused

detained, detention, bail, recognizance vis-à-vis new circulars and

resolutions issued amid the implementation of the enhance community

quarantine. The very difficult requirements for recognizance under the

Recognizance Act of 2012 (Section 682

of R.A. No. 1089), for instance,

need to be reviewed in relation to OCA Circular No. 91-2020;

82 Section 6. Requirements. – The competent court where a criminal case has been filed against a person covered under this Act

shall, upon motion, order the release of the detained person on recognizance to a qualified custodian: Provided, That all of the following requirements are complied with:

(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.

14

(d) Plight of PDLs before, during, and after temporary release such as

transportation logistics, safe passage of released PDLs in view of the

extended community quarantine and PDLs with no residence after

release;

(e) Varying circumstances in all prisons and detention cells;

(f) Capacity of the Judiciary and the Department of Justice;

(g) Involvement of non-government organizations, civil society

organizations, and legal groups (e.g. AHRC, ABA ROLI);

(h) Involvement of the PDLs’ counsels and their families;

(i) Possible penalties for violations of the conditions of release;

(j) Monitoring of PDLs;

(k) Support for released PDLs and their families; and

(l) Ensuring trial after the pandemic; and

(4) If early release is not feasible during the health emergency, older persons and

PDLs with chronic medical condition should be transferred to hospitals or to

temporary medical facilities within places of detention where necessary

medical care are provided.

ISSUED this 11th day of May 2020, Quezon City, Philippines.

JOSE LUIS MARTIN C. GASCON

Chairperson

KAREN S. GOMEZ-DUMPIT GWENDOLYN LL. PIMENTEL- GANA

Commissioner Commissioner

LEAH C. TANODRA-ARMAMENTO ROBERTO EUGENIO T. CADIZ

Commissioner Commissioner