How long must an accused in criminal trials wait? Lessons on pretrial detention from Latin America, Africa, and Asia. Can the Philippines use them?

There is something profoundly wrong when punishment comes before conviction. There is something even more profoundly wrong when everybody knows this is happening, everybody agrees it should not happen, and everybody continues doing exactly the same thing. In the Philippines, Persons Deprived of Liberty remain detained for five, ten, fifteen, sometimes twenty years while their trials crawl from one hearing to another. The Constitution promises speedy disposition of cases, the Rules of Court provide deadlines, and the judiciary has introduced continuous trial, yet extraordinarily long detention continues. The problem is therefore no longer simply whether we have rules. The problem is whether our rules have consequences when government fails to obey them.

The Philippines is hardly alone in confronting prolonged pretrial detention. Across Latin America, Africa, and Asia, millions of people remain behind bars without final conviction, sometimes constituting the majority of entire prison populations. The World Prison Brief reported that pretrial detainees constituted about 43.3 percent of Mexico's prison population in May 2026, 40.3 percent of Kenya's prison population in 2025, and 37.2 percent of South Africa's prison population in February 2026. India presents an even more astonishing picture, with 371,440 undertrial prisoners constituting 72.6 percent of its prison population at the end of 2024. The Philippines itself was reported to have 117,954 pretrial detainees in 2022, representing 65.2 percent of its prison population at that time. These numbers differ by reporting year and national classification, but their message is unmistakable: imprisoning people before conviction has become a defining characteristic of criminal justice systems throughout much of the developing world (World Prison Brief, 2026a, 2026b, 2026c, 2026d, 2026e). ([World Prison Brief][1])

The reasons are painfully familiar everywhere. Courts become overloaded, investigations take too long, prosecutors ask for continuances, witnesses fail to appear, defense lawyers are replaced, judges retire or transfer, and records move slowly between government offices. Poor defendants cannot afford bail, while detention becomes the easiest bureaucratic response to uncertainty. Everyone has an explanation, which means nobody accepts responsibility. One hearing becomes another hearing, then another month becomes another year. The accused meanwhile remains inside a cell because every institutional failure is converted into another day of imprisonment.

That should bother us because pretrial detention was never designed as advance punishment. A person detained awaiting trial remains legally presumed innocent. Detention may sometimes be necessary because of flight risk, danger to witnesses, interference with evidence, or serious threats to public safety, but it should remain exceptional and individually justified. What has happened in many systems is precisely the opposite. The accusation slowly becomes punishment itself, and the trial becomes merely the procedure eventually confirming or rejecting punishment already inflicted. The presumption of innocence remains beautifully written inside constitutions while the presumed innocent person sleeps behind bars.

Mexico offers the Philippines one particularly important lesson. Article 20 of the Mexican Constitution establishes an important outer benchmark for preventive detention and provides that it generally cannot last longer than two years unless prolongation results from the exercise of the defendant's right of defense. When that period is exceeded without judgment, the constitutional text provides for release while the proceedings continue, subject to other precautionary measures. Mexico still struggles with controversial forms of mandatory preventive detention, so its experience is hardly perfect. Nevertheless, the principle is revolutionary when viewed from the Philippine experience. At some point, the clock actually matters, and continued government failure can lead to liberty rather than merely another hearing date (Constitución Política de los Estados Unidos Mexicanos, art. 20). ([Cámara de Diputados][2])

Imagine applying that principle here. After somebody has spent two years awaiting judgment, the question should fundamentally change. For the first two years, the accused may have to explain why release is appropriate under existing legal standards. After two years, however, government should explain why it has failed to finish the case. The question should no longer be, “Why should this accused be released?” The question should become, “Why has the State failed to convict this person?” That simple reversal would transform the institutional incentives surrounding detention.

Brazil provides another useful lesson through mandatory review. Article 316 of Brazil's Code of Criminal Procedure requires periodic reconsideration of preventive detention, with the necessity of continued detention reviewed every ninety days through a reasoned judicial decision. Brazilian law therefore recognizes something our system too easily forgets: yesterday's justification for detention is not automatically today's justification. Circumstances change, witnesses testify, evidence becomes secured, defendants age, risks diminish, and cases evolve. Liberty cannot remain suspended merely because somebody once signed a detention order. The continued deprivation of liberty should require continued justification (Código de Processo Penal, art. 316). ([Planalto][3])

The Philippines should adopt the same philosophy. Every detained accused should automatically receive a detention review every ninety days. The prosecution should explain why detention remains necessary, and the judge should examine specific risks involving flight, witness intimidation, evidence tampering, public danger, and nonappearance. The judge should also examine whether those risks can now be controlled through recognizance, reporting requirements, travel restrictions, community supervision, or other alternatives. Continued incarceration should therefore become an affirmative judicial decision rather than an administrative default. Nobody should remain imprisoned simply because nobody remembered to reconsider imprisonment.

India offers another lesson particularly relevant to Philippine jails. Section 479 of India's Bharatiya Nagarik Suraksha Sanhita establishes a maximum period for which many undertrial prisoners may remain detained, generally tying release eligibility to a fraction of the maximum imprisonment prescribed for the offense. For qualifying first-time offenders, the provision allows release after detention reaches one-third of the maximum prescribed imprisonment, while the broader rule uses one-half, subject to statutory exceptions. The law also places responsibility upon prison authorities to make applications to the court when qualifying detention thresholds are reached. That last requirement is especially important because it recognizes that prisoners themselves should not carry the entire burden of discovering that they have already become legally eligible for release (Bharatiya Nagarik Suraksha Sanhita, 2023, §479). ([India Code][4])

That approach speaks directly to something we have repeatedly discussed about Philippine prolonged detention. BJMP wardens and provincial jail wardens should not function merely as custodians receiving bodies from courts and returning those bodies whenever another hearing is scheduled. They possess information the courts desperately need. Every month, jails should electronically transmit the names of detainees who have remained imprisoned beyond specified thresholds, together with their arrest dates, case numbers, courts, judges, hearing histories, applicable penalties, and earned detention credits. Their accumulated Good Conduct Time Allowance and Time Allowance for Studying, Teaching, and Mentoring should also be computed whenever legally applicable. The judge, prosecutor, defense counsel, Public Attorney's Office, and jail should all see exactly the same information.

The system should create automatic warning categories. One year should produce an administrative notification. Two years should produce mandatory judicial review and a strong presumption favoring release unless exceptional circumstances are established. Five years should produce extraordinary review by court administrators and require a detailed explanation from everyone responsible for the prosecution and adjudication of the case. Ten years should no longer appear as an ordinary statistic inside a spreadsheet. Ten years without conviction should ring an alarm throughout the entire judicial system.

Kenya offers another lesson about judicial control over detention. Its Constitution requires arrested persons ordinarily to be brought before a court within twenty-four hours, while section 36A of the Criminal Procedure Code requires judicial authorization for continued investigative detention and generally limits an initial remand order under that provision to thirty days. The statute requires police requesting additional detention to explain the investigation already conducted, the additional inquiries contemplated, and the reasons further custody is necessary. The court may instead release the suspect unconditionally or impose conditions designed to address identifiable risks. The principle is again unmistakable: government must explain why liberty is being taken rather than treating detention as the natural consequence of arrest (Constitution of Kenya, art. 49; Criminal Procedure Code, §36A). ([Kenya Law][5])

South Africa presents almost the opposite lesson, and therefore an equally valuable one. Section 35 of its Constitution guarantees every accused person the right to have trial “begin and conclude without unreasonable delay.” That sounds remarkably familiar to Filipinos because our own legal vocabulary speaks repeatedly about speedy trial and speedy disposition. Yet South Africa's continuing remand population demonstrates the limitations of relying predominantly upon a flexible reasonableness standard. As of February 2026, approximately 37.2 percent of South Africa's prisoners were remand detainees, while the overall prison system was operating at about 157.5 percent of official capacity. Rights matter enormously, but rights become stronger when they are accompanied by measurable deadlines and enforceable consequences (Constitution of the Republic of South Africa, §35; World Prison Brief, 2026d). ([Justice][6])

That is precisely where the Philippine system gets trapped. We ask whether delay is reasonable. Then we ask whether the case is complex, whether somebody requested postponement, whether a witness disappeared, whether the prosecutor was reassigned, whether defense counsel became unavailable, whether another judge inherited the case, and whether yet another exclusion applies. Every explanation might individually appear reasonable. Put one hundred reasonable delays together, however, and an accused can spend ten years in jail. We have therefore created the extraordinary possibility that every postponement is legally explainable while the final result becomes morally indefensible.

Indonesia provides another approach worth studying because it historically structured detention authority around procedural stages, assigning finite periods to investigators, prosecutors, and courts rather than allowing a single indefinite detention period to float throughout the criminal process. Indonesia enacted a new Criminal Procedure Code through Law No. 20 of 2025, replacing its older procedural framework beginning in 2026. The broader comparative idea remains valuable even when specific procedural periods change through reform. Investigation should have a clock, prosecution should have a clock, trial should have a clock, and judgment should have a clock. When everybody owns part of the clock, everybody also owns part of the delay. A criminal justice system should know exactly where time disappeared.

This could revolutionize court management in the Philippines. Every postponed hearing should be electronically coded according to the reason and requesting party. Was the prosecutor absent, was defense counsel absent, was the witness unavailable, was the accused not transported, was the judge attending training, or did the court simply have too many cases scheduled that day? Once those data become visible, excuses become measurable organizational behavior. A judge inheriting a five-year-old case may reasonably say that the first five years were not created by that judge. That judge should not reasonably be permitted to inherit the delay and then add another five years.

The Supreme Court should therefore create a National Long-Staying PDL Dashboard. Every executive judge and individual trial judge should know how many detained accused under their jurisdiction have remained inside jails for more than one year, two years, five years, and ten years. Court administrators should know the longest pending detained case in every judicial region. Prosecutors should receive equivalent reports identifying cases stalled under their offices. Public defenders and private lawyers participating in legal-aid programs should receive targeted lists requiring legal intervention. What is invisible remains easy to ignore, while what is measured becomes considerably harder to explain away.

This is also where alternatives to detention and structured risk assessment become important. Poverty should never become a proxy for dangerousness. A defendant who cannot raise ten thousand pesos does not magically become more dangerous than somebody accused of the same offense who can produce one hundred thousand pesos before lunchtime. Courts need better information about actual risk, including the probability of nonappearance, interference with witnesses, and danger to the community. Philippine risk and needs assessment initiatives can eventually contribute structured information to these decisions, provided they assist rather than replace judicial judgment. Detention should increasingly be reserved for risks that cannot reasonably be managed outside jail.

The international lesson is therefore not that Mexico, Brazil, India, Kenya, South Africa, or Indonesia has discovered some miraculous cure. Each country continues struggling with detention, overcrowding, delay, implementation failures, and competing demands involving liberty and public safety. Their importance lies elsewhere. They demonstrate different ways of transforming the abstract promise of speedy justice into operational mechanisms. Mexico gives us an outer temporal benchmark, Brazil gives us periodic review, India gives us sentence-linked detention limits and prison-initiated review, Kenya gives us judicially supervised remand, and Indonesia gives us procedural clocks. South Africa, meanwhile, reminds us why constitutional language alone may remain insufficient when unreasonable delay has no automatic institutional consequence.

The Philippines already possesses impressive laws, impressive judges, impressive prosecutors, and impressive lawyers. Our lawyers win debates, our judges write intricate decisions, and our Supreme Court repeatedly introduces reforms intended to accelerate justice. Yet somewhere inside a crowded jail, somebody remains imprisoned after ten years while everybody explains why the next hearing had to be postponed. That is the contradiction we must finally confront. The most sophisticated justice system becomes meaningless to the person whose case nobody can finish. Justice must eventually become something more substantial than beautifully written rules.

Congress and the Supreme Court should therefore consider building these international lessons into one coherent Philippine framework. Establish a presumptive two-year maximum for pretrial detention, require ninety-day detention reviews, create sentence-linked release safeguards, impose stage-specific procedural clocks, require electronic jail-to-court reporting, and automatically escalate five-year and ten-year detention cases. Strengthen alternatives to detention and make risk, rather than poverty, the foundation of release decisions. Require judges, prosecutors, and defense lawyers to explain extraordinary delay and identify who requested every postponement. Most importantly, create a legal consequence when government cannot finish its work.

Because that remains the missing ingredient. We already have constitutional rights. We already have procedural rules. We already have continuous trials. We already have jail decongestion programs.

What we do not consistently have is a consequence when the system itself causes years of detention. A deadline without consequences eventually becomes a suggestion. A constitutional guarantee without an effective remedy eventually becomes rhetoric. An accused person cannot eat rhetoric, cannot hug children with rhetoric, and cannot recover twenty stolen years through rhetoric.

The principle should therefore become painfully simple. Government may investigate somebody vigorously. Government may prosecute somebody relentlessly. Government may imprison somebody severely after guilt has been proven beyond reasonable doubt. But government should not punish somebody for ten years because government itself cannot finish the trial. First convict the person, then punish the person. Never the other way around.

References:

1. Bharatiya Nagarik Suraksha Sanhita, 2023 (India), Section 479. India Code, Ministry of Law and Justice, Government of India.

2. Brazil, Código de Processo Penal, Decreto-Lei No. 3.689/1941, Article 316, as amended by Law No. 13.964/2019. Presidência da República, Brazil.

3. Constitución Política de los Estados Unidos Mexicanos, Article 20. Cámara de Diputados, Mexico.

4. Constitution of the Republic of South Africa, 1996, Section 35. Department of Justice and Constitutional Development.

5. Kenya Criminal Procedure Code, Section 36A. Kenya Law, National Council for Law Reporting. The provision and its requirements are reproduced and applied in *Republic through DCI v. Mackenzie & 17 Others* (2023).

6. World Prison Brief. Brazil. Institute for Crime & Justice Policy Research, Birkbeck, University of London.

7. World Prison Brief. India. Institute for Crime & Justice Policy Research, Birkbeck, University of London.

8. World Prison Brief. Kenya. Institute for Crime & Justice Policy Research, Birkbeck, University of London.

9. World Prison Brief. Mexico. Institute for Crime & Justice Policy Research, Birkbeck, University of London.

10. World Prison Brief. Philippines. Institute for Crime & Justice Policy Research, Birkbeck, University of London.

11. World Prison Brief. South Africa. Institute for Crime & Justice Policy Research, Birkbeck, University of London.

12. World Prison Brief. “More than three million people are held in pre-trial detention and other forms of remand imprisonment.” Institute for Crime & Justice Policy Research, Birkbeck, University of London.