The Bail Challenge in Southeast Asia

Changes need to be made to bail systems to ensure that true justice is served for all.

The Bail Challenge in Southeast Asia
Credit: Pixabay

All too often, attention in justice systems is paid to what happens when a prisoner leaves jail, not what happens when they enter jail. The problem in some parts of Southeast Asia is that a significant number of people entering prison have not yet been convicted (and, therefore, ought to be considered innocent) and are often only charged with minor offenses.

Take one example: In November 2018, when Cambodian Interior Minister Sar Kheng revealed that year’s prison stats, they were shocking. Of the 31,008 inmates in Cambodia’s 28 prisons, almost 72 percent were being held in pre-trial detention. In other words, only a third of Cambodia’s prison population has been convicted of a crime. The same month, Licadho, a local NGO, published its Time for Bail: Ending Needless Mass Detention in Cambodia report which called for sweeping changes to the country’s bail system. Licadho’s director Naly Pilorge said: “In Cambodia people accused of crimes are often treated as if they are guilty until proven innocent. Justice is not being served but it could be if the law was followed.”

This issue also attracted some attention in Thailand in late 2017 when a civic group raised awareness of the fact that about a fifth of all prisoners are in pre-trial detention, and the majority are poor defendants who cannot afford post bail. “No one should be jailed simply because they are poor,” a Bangkok Post editorial stated. “Unfortunately for the poor accused of crimes, bail is nearly always a privilege exclusively reserved for the rich. Imprisonment is their default option.”

Given the amount of flak the Cambodia justice system receives for having one rule for the rich and another for the poor (a source of great discontentment in society) it was rather sensible, though uncommonly so, for the government last month to drop its planned “hotel” prison project, in which wealthy offenders could cough up for what Ministry of Interior spokesman Khieu Sopheak called a “5-star prison.”

Similar problems with bail exist elsewhere in Southeast Asia. Claims that the poorest of defendants cannot afford bail terms and many simply pleaded guilty to speed up the process, which is lengthy at the best of times due to underfunded courts, are widespread. It probably doesn’t help that the Philippines, along with the United States, are effectively only two countries with a legalized for-profit bond market, meaning private companies and individuals can post the bail bond for defendants, who then must pay it back. Everywhere else bonds are paid to the state by defendants.

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In Thailand, bail costs can be between $1,600 and upwards of $30,000, depending on the severity of the case. In Cambodia, it is lower, and probably on par in the Philippines. Rappler, an independent news outlet which has often been attacked by President Rodrigo Duterte, had to pay around $40,000 in bonds after numerous charges were filed against it last year.

What is to be done? Firstly, most countries could lower the cost of bail, meaning that both rich and poor defendants don’t have to enter pre-trial detention. If this happened alongside a campaign to instruct citizens about their right to bail, and courts were instructed to be more relaxed on bail terms, it would have a marked impact. Licadho, the Cambodian NGO, spells out in a few sentences why this is an incredibly rational and easy idea to understand. “If pre-trial detention was limited to only the most exceptional cases,” it report states, “the judiciary would have to prioritise cases according to their severity, easing the workload on an already overloaded judiciary and prison system while those accused would remain able to participate in society until their guilt had been determined.”

But there are many reasons why the justice system of a country, like Cambodia, systematically refuses to grant more defendants bail, none of which are self-flattering. One such reason why Cambodia keeps so many people in pre-trial detention is that it has so little confidence in its own law enforcement. It knows that its police and judicial officers are incapable of keeping track of defendants released on bail, and probably suspects that bribes would be plentifully accepted to keep a defendant away from judges. Absent a change in these perceptions and fears, it is difficult to see true reforms being undertaken to the system anytime soon.