Thursday, December 22, 2016

Article 150, Rev. Penal Code - Duterte's new petty harassment case vs. De Lima


According to the news today, the Duterte-controlled DOJ indicted De Lima before the Metropolitan Trial Court of Quezon City for violation of Article 150 of the Revised Penal Code.

The provision is entitled “Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions”.

The imposable penalty under the provision is “arresto mayor” (six months) “or a fine ranging from two hundred to one thousand pesos or both such fine and imprisonment.”

The elements of the felony are as follows:
1.       The Congress or a Constitutional Commission (the Civil Service Commission, the Commission on Election, and the Commission on Audit, and, possibly, the Office of the Ombudsman) issues a summons to a witness;
2.    The witness refuses, without legal excuse, to obey the summons;
3.    Or, being present before the legislative or a constitutional body, the witness

(a)             Refuses to be sworn or placed under affirmation or
(b)            Refuses to answer any legal inquiry or
(c)             Refuses to produce books, papers, documents, or records in his possession, when required by the legislature or a constitutional body.
4.    Or “any person”
(a)             “Restrains” another from “attending as a witness” or
(b)            “Induces” another to “disobey a summons” or
(c)             “Induces” another to “refuse to be sworn” by the legislature or a constitutional body.

It appears from the news that the focus of the Information (the term used for the “Complaint” filed in the trial court by the DOJ or any of its public prosecutors in a criminal case) referred to Paragraph 4 above, i.e., that De Lima allegedly “restrained” her driver-bodyguard Dayan from attending as a witness in a congressional hearing or that De Lima allegedly “induced” Dayan to disobey the summons issued by Congress.

The prosecution has the “burden of proof” to prove the guilt of an accused.

We have not read the records of the case but there are two possibilities as to who and how the criminal complaint was commenced in the DOJ: (a) That Dayan (the witness allegedly restrained and induced by De Lima) had filed an affidavit-complaint with the DOJ and/or (b) That the concerned congressional committee chairman who issued the summons to Dayan had filed an affidavit-complaint with the DOJ.


Because the criminal case against De Lima is covered by the Rules on Summary Procedure (i.e., with an imposable penalty of less than six months), it is exempted from “regular preliminary investigation” procedures by the DOJ under the Rules of Criminal Procedure of the Revised Rules of Court.

In summary criminal cases the DOJ or the investigating public prosecutor may directly file the Information with the Metropolitan Trial Court.

The only requirement is that the DOJ finds probable cause based on the affidavit-complaint and its supporting documents.

The DOJ does not need to give the respondent De Lima an opportunity to be heard in summary criminal cases for purposes of determining “probable cause”.
Note that Section 1 of Rule 112 of the Rules of Criminal Procedure provides that preliminary investigation is an inquiry to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is “probably guilty” thereof, and should be held for trial.

Paragraph 2 of Section 1 of Rule 112 of the Rules of Criminal Procedure provides that except as provided in Section 7 (“inquest” proceedings) of the said Rules, a preliminary investigation is required to be conducted only when the offense charged in the affidavit-complaint is punishable by “at least four (4) years, two (2) months and one (1) day without regard to the fine”.

The foregoing provision is reiterated in Section 9 of the Rules of Criminal Procedure which provides that if the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less four (4) years, two (2) months and one (1) day, “the prosecutor shall act on the complaint “based on the affidavits and other supporting documents submitted by the complainant”, i.e., without requiring the respondent to file his “counter-affidavit and its supporting documents as well as the supporting affidavits of his witnesses”.

The charge against De Lima for violation of Article 150 of the Revised Penal Code carries a penalty of six months; hence, it was not subjected to a regular preliminary investigation by the DOJ and was directly filed by it with the proper trial court.

Note, however, that the procedural and substantive due process rights of the accused De Lima shall be protected and respected during the summary proceedings (trial phase) before the trial court (i.e., Metropolitan Trial Court [MetTC}) where she may controvert the criminal accusation against her and present her countervailing evidence to prove her innocence in accordance with the Rules of Summary Procedure.

Section 1 of the Revised Rules of Summary Procedure provides that a criminal case where the imposable penalty is less than six months or a fine not exceeding (P1,000.00) shall be tried by the first-level trial court under the said Rules.


The summary criminal case of De Lima shall undergo the following abbreviated trial procedures at the MetTC level:

(1)             The Information filed by the DOJ with the trial court shall be accompanied by the affidavits of the complainant and of his witnesses. (Section 11).
(2)            On the basis of the complaint and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit. (Section 12).
(3)            It the case is not dismissed outright, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his “counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf”. (Id.).
(4)            The prosecution may file “reply affidavits” within ten (10) days after receipt of the counter-affidavits of the defense. (Id.).
(5)            Should the court, upon a consideration of the Information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case. Section 13).
(6)            Otherwise, the court shall set the case for “arraignment and trial”. (Id.).
(7)            Before conducting the trial, the court shall call the parties to a “preliminary conference” during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. (Section 14).
(8)            At the trial, the affidavits submitted by the parties shall constitute the “direct testimonies” of the witnesses who executed the same. (Section 15).
(9)            Witnesses who testified may be subjected to “cross-examination, redirect or re-cross examination”. (Id.).
(10)       Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. (Id.).
(11)         Except in rebuttal or surrebuttal, no witness shall be allowed to testify “unless his affidavit was previously submitted to the court”. (Id.).
(12)        No warrant of arrest is issued. No bail is required to be posted. (Section 16).
(13)        The court shall not order the arrest of the accused “except for failure to appear whenever required”. (Id.).
(14)        The court shall promulgate the judgment not later than thirty (30) days after the termination of trial. (Section 17).
(15)        The decision of the trial court is appealable, by way of Ordinary Appeal (Notice of Appeal) under Rule 40 of the Rules of Court to the proper Regional Trial Court [RTC]. (Section 21). 
(16)        The RTC shall decide the appeal in accordance with Section 22 of Batas Pambansa Blg. 129.
(17)        Further appeals may be filed with the Court of Appeals and the Supreme Court pursuant to the 1997 Rules of Civil Procedure and the 2000 Rules of Criminal Procedure.


Note that Paragraph 16 above refers to Section 22 of Batas Pambansa Blg. 129 (Judiciary Reorganization Act of 1980).

Section 22 of BP Blg. 129 provides that the Regional Trial Courts shall exercise “appellate jurisdiction” over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts.

Such cases “shall be decided on the basis of (a) the entire record of the proceedings” had in the court of origin and (b) such “memoranda and/or briefs” as may be submitted by the parties or required by the Regional Trial Courts.

This is commonly called the “memorandum decision”, i.e., a decision rendered by the RTC in the exercise of its appellate jurisdiction based  solely (a) on the case record of the MTC and (b) on the “appeal memorandum” filed by the accused with the RTC and the “counter-appeal memorandum” filed by the prosecution with the RTC.

The decision of the RTC shall be appealable by “Petition for Review” (Rule 42, Rules of Court) to the Court of Appeals (CA).

The CA may give it due course only when the petition shows prima facie that the lower court has committed an “error of fact or law” that will “warrant a reversal or modification” of the judgment sought to be reviewed.

Further, the decision of the CA is appealable to the Supreme Court (SC) by way of a “Petition for Review on Certiorari” (Rule 45, Rules of Court.), a “discretionary appeal” grounded on “purely legal  questions.”

The summary nature of the De Lima case is summary only in reference to the “trial phase at MTC level”, not with respect to the tedious and protracted appeals before the RTC, CA, and SC.

In a sense, it is not truly “summary”.

At any rate, the exhaustion of appellate remedies up to the SC level is part of the procedural and substantive due process rights of the accused as enshrined in the Constitution and the Rules of Court.