Bail : a fundamental right to liberty?

Abstract

This dissertation examines the notion of bail from a human rights perspective and attempts to clarify and shed some light on the possibility of pre-trial release as a fundamental human right. The underlying philosophy of bail, its history and its application in various legal systems raises the very important question on whether there is indeed a right to bail. What is left in a right hedged around by unattainable conditions and the exercise of unfettered discretion? The purpose of this dissertation is obviously practical. It is intended at drawing attention to the subject matter of Bail and attempts to demonstrate the futility of providing rights, whilst at the same time imposing several restrictions on their enjoyment. Whether to recognise bail as a fundamental human right is a highly controversial subject. This is due to the 'tug of war' between the individual, whose liberty rights should be safeguarded, and society whose protection is ultimately the prime obligation of any State. What makes the study of the right to bail so fascinating and the subject of many a debate is the fact that on one hand lies an untried individual, presumably innocent, and on the other a suspected criminal. This dissertation primarily examines the notion of a right, and the pros and cons of a right to bail and its possible limitations. In conclusion, it also considers the negative aspects of the pre-trial detention system and proposes alternatives to incarceration in the hope that bail will secure its placement amongst the hierarchy of human rights.