1) Why “drug cases are non-bailable” is a myth

In the Philippines, bail is a constitutional right, but it is not absolute. The correct rule is:

Bail is a matter of right before conviction if the offense is not punishable by death, reclusion perpetua, or life imprisonment.
If the offense is punishable by death, reclusion perpetua, or life imprisonment, bail is not a matter of right. The accused may be granted bail only if the court finds that the evidence of guilt is not strong, after a hearing.

This is why many drug cases feel “non-bailable”: a large portion of prosecutions under RA 9165 carry life imprisonment (especially Section 5 and higher-quantity Section 11), placing them under the “not a matter of right” category.

2) The legal framework (what governs bail)

A. 1987 Constitution

The Constitution sets the baseline: bail is a right except for the most serious offenses when evidence of guilt is strong.

B. Rules of Criminal Procedure (Rule 114)

Rule 114 supplies the working rules:

When bail is a right vs. discretionary
How bail hearings are conducted
Factors for fixing bail
Forms of bail (cash, surety, property bond; and in limited situations, recognizance)
What happens if the accused violates conditions

C. RA 9165 (Comprehensive Dangerous Drugs Act of 2002)

RA 9165 determines the penalty, and the penalty controls bail classification.

3) The key idea: Bail depends on the penalty, not the label “Section 5” or “Section 11”

A charge’s statutory penalty drives bail rules:

If the charged offense is punishable by life imprisonment / reclusion perpetua → bail is discretionary and requires a finding that evidence of guilt is not strong.
If the charged offense is punishable by lower penalties → bail is a matter of right before conviction.

So the real question is always:

What is the imposable penalty for the specific charge and quantity alleged?

4) Section 5 (Sale/Trading/Delivery/Distribution): Why bail is usually hard

A. What Section 5 generally covers

Section 5 punishes acts like selling, trading, administering, dispensing, delivering, distributing, and similar forms of transfer of dangerous drugs.

B. Typical penalty and bail effect

Section 5 commonly carries life imprisonment (the death penalty language in older texts is no longer implemented due to subsequent law, but the offense remains in the “highest penalty” class).

Result: ✅ Bail is not a matter of right. ✅ Bail can be granted only after a bail hearing, and only if the court finds the evidence of guilt is not strong.

C. What “evidence of guilt is strong” means in bail hearings

It is not proof beyond reasonable doubt (trial standard).
It is a pre-trial assessment of the prosecution’s evidence.
The hearing is summary, but it must be real: the court must allow the prosecution to present evidence (often through witnesses or at least a meaningful offer of evidence), and the defense may cross-examine and present counter-evidence.

D. Practical reality in Section 5

Because Section 5 cases are often built on buy-bust operations (poseur-buyer testimony, marked money, seized sachet, inventory, laboratory examination), prosecution evidence frequently appears “strong” at the bail stage.

But bail is still legally possible, particularly where there are serious weaknesses apparent early—examples include:

Identity/participation issues (uncertain identification, inconsistent narration of who sold what to whom)
Credibility and continuity problems (gaps in handling the seized item, unexplained transfers)
Irregularities suggesting evidence tampering or substitution
Material contradictions among police witnesses or between affidavits and testimony
Defects so significant that the court is persuaded the prosecution’s case is weak at this stage

Important: these are evaluated case-by-case. No single “magic defect” automatically makes evidence “not strong.”

5) Section 11 (Possession): Bail ranges from a right to highly discretionary—depending on quantity and drug type

A. Why Section 11 is different

Section 11 penalties are graduated. Possession of small quantities can carry penalties below life imprisonment, while possession of larger quantities triggers life imprisonment.

Result: Some Section 11 cases are bailable as a matter of right, while others are bailable only upon a finding that evidence is not strong.

B. The quantity threshold determines the bail category

Section 11 specifies different penalties depending on:

Type of drug (e.g., methamphetamine hydrochloride/shabu, marijuana, cocaine, heroin, etc.)
Weight/quantity possessed
Sometimes, special drug categories recognized in the statute

Commonly encountered life-imprisonment thresholds in practice include (always verify against the exact statutory text for the specific drug alleged):

Shabu (methamphetamine hydrochloride): possession at or above a high statutory threshold (commonly encountered threshold is 10 grams or more)
Marijuana: possession at or above a high statutory threshold (commonly encountered threshold is 500 grams or more)
Marijuana resin / hashish: possession at or above a high statutory threshold (commonly encountered threshold is 50 grams or more)
Certain “hard drugs” (e.g., cocaine, heroin, morphine/opium derivatives) have their own high thresholds (commonly encountered threshold is 10 grams or more)

Bail consequence:

If the alleged quantity falls below the life-imprisonment bracket → bail is a matter of right before conviction.
If the alleged quantity falls within the life-imprisonment bracket → bail is discretionary (requires a hearing and a finding that evidence of guilt is not strong).

C. A practical way to classify Section 11 cases

Section 11 possession cases fall into three practical bail groups:

Clearly bailable as a matter of right (lower quantities / lower penalty)
- Court must grant bail once requirements are met (the fight is usually about amount of bail, not entitlement).
Borderline or disputed quantity (bail turns on what the court accepts as the charge/quantity)
- If the defense credibly disputes the actual quantity attributable to the accused (e.g., multiple sachets, aggregation issues, ownership/possession disputes), it may affect whether the case sits in a life-penalty bracket.
Life-penalty bracket possession (bail discretionary)
- A bail hearing is required; grant depends on whether evidence is “not strong.”

6) The bail hearing: mandatory when the charge carries life imprisonment/reclusion perpetua

A. When a bail hearing is required

If the charged offense is punishable by life imprisonment / reclusion perpetua, the court must conduct a hearing to determine:

whether the evidence of guilt is strong.

B. Burden of proof at the hearing

The prosecution has the burden to show that evidence of guilt is strong.
The defense can:
- cross-examine prosecution witnesses,
- present evidence to show weaknesses,
- argue that the evidence does not meet the “strong” threshold.

C. What the judge must do

A judge cannot deny (or grant) bail in these cases by simply relying on:

the Information,
the fact of arrest,
the prosecutor’s claim that evidence is strong.

The judge must make an independent evaluation based on what was presented at the bail hearing.

7) Timing matters: bail rules change as the case progresses

A. Before conviction (pre-trial stage)

Matter of right if not punishable by life/reclusion perpetua.
Discretionary (needs bail hearing) if punishable by life/reclusion perpetua.

B. After conviction by the Regional Trial Court (RTC)

After conviction, bail becomes tighter:

If the accused is convicted of an offense not punishable by life/reclusion perpetua, bail pending appeal may still be possible but is more discretionary, and courts consider risks like flight and other factors.
If convicted of an offense punishable by life/reclusion perpetua, bail is generally not available.

C. On appeal

Bail pending appeal is not treated the same as pre-conviction bail. Courts often scrutinize:

flight risk,
probability of appearance,
the strength of the case as adjudged in the conviction,
and other Rule 114 considerations.

8) Forms of bail and typical conditions (drug cases included)

Forms of bail

Cash deposit
Surety bond (through an accredited surety company)
Property bond
In limited circumstances for qualified persons/offenses, release on recognizance may exist under separate rules/laws (this is not the norm for serious drug cases).

Common conditions

Appear in court when required
Do not leave jurisdiction without permission
Keep the court informed of address changes
Surrender for execution of judgment if convicted

Violation can lead to:

forfeiture of bond,
issuance of arrest warrants,
cancellation of bail privileges.

9) How courts fix the amount of bail (when bail is available)

Even when bail is a matter of right, the amount is not automatic. Courts consider factors such as:

nature of the offense and penalty,
character and reputation of the accused,
age and health,
weight of evidence,
probability of appearance at trial,
financial ability (bail must not be excessive),
risk of flight and community ties.

In drug cases, courts often set higher bail due to:

severity of penalties,
perceived flight risk,
and the public interest in prosecution.

10) Special situations in Sections 5 and 11 where bail issues commonly arise

A. Charged offense vs. provable offense

Sometimes the defense argues that the evidence supports only a lesser offense (e.g., Section 11 possession rather than Section 5 sale). At the bail stage, courts focus on the charge and the prosecution’s evidence, not on final guilt. But if the prosecution’s own presentation is weak on the elements of Section 5, it can influence the “evidence not strong” finding.

B. Quantity disputes (Section 11)

Quantity can be contested through:

inconsistencies in seizure documentation,
aggregation issues (what is attributable to whom),
evidence of exclusive control/possession,
handling and weighing procedures.

However, bail hearings are not full trials; courts may reserve deeper factual resolution for trial unless the weakness is already apparent.

C. “Chain of custody” and early bail arguments

In drug cases, evidence handling is important. At bail stage:

Courts may consider apparent gaps that affect reliability,
But not every procedural imperfection automatically makes evidence “not strong.”

11) Quick guide: When is bail allowed under Sections 5 and 11?

Section 5 (Sale/Trading/Distribution)

Allowed? Yes, but discretionary.
When? Only after a bail hearing, and only if the court finds evidence of guilt is not strong.
Reality: Often difficult, but not legally impossible.

Section 11 (Possession)

Allowed? Depends on quantity and drug type.
If penalty is below life/reclusion perpetua: bail is a matter of right (before conviction).
If penalty is life/reclusion perpetua (high-quantity bracket): bail is discretionary, requires bail hearing, and depends on “evidence not strong.”

12) Practical takeaways

Check the charge and the exact penalty bracket. Section 5 usually lands in life-imprisonment territory; Section 11 varies widely.
If life/reclusion perpetua applies, demand a proper bail hearing. The court must independently evaluate whether evidence of guilt is strong.
For Section 11, the “bailability” often hinges on quantity. Small-quantity possession can be bailable as a matter of right; high-quantity possession is treated like Section 5 for bail purposes.
Bail is about liberty pending trial—not acquittal. Winning bail (or losing bail) does not decide guilt; it decides temporary release conditions while the case proceeds.

If you want, I can also add (a) a step-by-step outline of the bail motion process in RTC drug courts, and (b) a checklist of prosecution evidence typically presented in Section 5 vs. Section 11 bail hearings, written in practitioner style.