The celebrated new IRR (Implementing Rules and Regulations) of the Good Conduct Time Allowance (GCTA) law — a merit-based time reduction scheme that has gone through controversial revisions under Duterte’s time — is worded in such a way that only heinous crime convicts are covered, yet excludes those detainees charged and ongoing trial for a heinous crime.
The effect is that 40% of all pre-trial detainees in the Philippines are disqualified, the Bureau of Jail Management and Penology (BJMP) confirmed to Rappler. This is equivalent to an estimated 50,000 detainees disqualified from time reduction in jail.
“The disqualifications from time allowances for those who are still undergoing trial remained, hence, around 40% of the PDL in BJMP jails are still disqualified,” BJMP spokesperson Jayrex Bustinera told Rappler.
The GCTA, or Republic Act 10592, was revised repeatedly after public uproar in 2018 when notorious murder-rape convict, the late Antonio Sanchez, was set to be freed given the law’s benefits. The Duterte government appeased the public by excluding heinous crime convicts from the law — a move that was challenged in the Supreme Court. In 2024, the High Court ruled that heinous crime convicts should be covered by the law.
The newest IRR by the Marcos government, released late last year, says that under Rule IV, Section 1(f) that “PDL (Persons Deprived of Liberty) charged with heinous crimes)…shall not be entitled to any GCTA during preventive imprisonment.”
The IRR created a situation where a person already convicted of a heinous crime is qualified for sentence reduction, but ironically a person presumed to be innocent is deprived of the same time allowances.
“With more reason should a pre-trial or pre-conviction detainee be entitled,” retired Naga judge Soliman Santos told Rappler, adding that the provision “may be corrected through a proposed IRR amendment deleting section 1(f).”
Bustinera, on the other hand, said the remedy would be to amend the law itself.
This is a concern, said Rafael Barreto Souza, crime prevention and criminal justice officer of the United Nations Office on Drugs and Crime (UNODC) in the Philippines.
“In the Philippine context, where judicial proceedings can take several years, individuals in preventive detention may remain incarcerated for prolonged periods without earning time allowances,” said Souza.
“This can ultimately delay their release if they are later convicted. Currently, approximately 70% of all persons deprived of liberty in the country are awaiting trial, making this a concern,” Souza added.
Legalities
The issue in general concerns equal protection, beginning with the first-ever constitutional challenge when the law was just applied proactively. The Supreme Court made it retroactive, following the principle that there should be no distinction between a convict before the law, and a convict after the law.
When Duterte excluded heinous crime convicts by crafting a new IRR in 2019, the legal question that arose was whether the executive branch was allowed to effectively make new legislation. The Supreme Court said it couldn’t, and ruled that the 2019 version of the IRR was the executive branch “exceeding its power of subordinate legislation.”
“The BJMP submits to and respects the decision of the Supreme Court on GCTA. We also recognize that allowing a PDL ‘charged’ with heinous crime to avail of time allowances will require amending R.A. 10592,” said BJMP’s Bustinera.
UNODC’s Souza pointed out that the principle of equal protection would still apply.
“The rationale for this broader approach is rooted in the principle that PDLs who are presumed innocent— that is, those awaiting trial — should not receive treatment under the law that is harsher than that applied to those who have already been found guilty. This aligns with the general legal principles of equity and proportionality,” said Souza.
Retired judge Santos said that while he believes it “should no longer be an issue after the [Supreme Court] ruling,” a test case could otherwise be filed.
“It may be questioned by way of a test case on its invalidity as contrary to law, jurisprudence, and what is right and just,” said Santos.
A test case would take time, which could derail the decongestion efforts of the Marcos government which had earlier signaled it as a human rights priority.
As of May 2024, BJMP jails are still 304% congested which roughly means 30 detainees sharing a cell meant for only 10.
In 2021, the Duterte government also revised the manual for the GCTA. It’s supposed to make the nuts and bolts rules uniform for all agencies, to avoid confusion caused by poor record keeping, as well as allegations of GCTA-for-sale. In fact, the GCTA was paused in 2020 while waiting for this manual.
Bustinera said agencies are once again working on a new manual.
“As of the moment, the BuCor [Bureau of Corrections] and DOJ [Department of Justice], together with BJMP and DILG [Department of the Interior and Local Government] are working together to finish a Joint Manual for the uniformed implementation of GCTA,” Bustinera said.
– with reports from Jairo Bolledo/Rappler.com