I led the planning and implementation of the 2005 bench and bar dialogue of Las Pinas City, the proceedings of which are reproduced below, which, I hope, the readers will find useful for research purposes, despite its length.
2005 Bench and Bar Dialogue of the Pillars of the
Criminal Justice System of Las Pinas City: Record of the Proceedings.
ATTY. MYRNA C. MERCADER
Welcome to the Garden Pavilion of Congresswoman Villar. I am Atty. Myrna Mercader and I will be your emcee for today. This symposium and Las Piñas City Bench-Bar Dialogue is co-sponsored by the Las Piñas City Bar Association, Inc., the IBP-PPLM Chapter, the Office of the Executive Judge, RTC, Las Piñas City, the Office of Las Piñas City Congresswoman Cynthia Villar and the Office of the City Mayor Las Piñas City. Without much ado, let us request Atty. Richard Funk to lead us in the singing of the national anthem as well as giving us the invocation for today. Let us please rise.
NATIONAL ANTHEM AND PRAYER LED BY
ATTY. RICHARD FUNK
ATTY. MERCADER
Let us all be seated and thank you very much Atty. Funk for that really passionate singing of the national anthem and a very thought-provoking invocation. Before we proceed with what we have for today, please allow me to introduce the important persons at the presidential table starting from my extreme left. First, we have the President of the Las Piñas City Bar Association, Atty. Marlin Velasco. Next, we have the President of the IBP-PPLM Chapter which co-sponsors this dialogue and symposium, Atty. Amador Tolentino. Next is the Presiding Judge of Branch 202, Judge Elizabeth Guray. Still next is the Presiding Judge of Branch 198, the Honorable Erlinda Alvaro. Of course we have our boss for the courts, the Court Administrator himself, the Honorable Presbitero Velasco, Jr. We have the Presiding Judge of Branch 275, Judge Bonifacio Sanz-Maceda. We have the Executive Judge of Las Piñas City and the Presiding Judge of Branch 199, Judge Joselito dj. Vibandor.
At this point, let us call on Atty. Manuel Laserna, Jr., the Chairperson and the Founding President of the Las Piñas City Bar Association to give the welcome remarks.
ATTY. MANUEL LASERNA, JR.
Honorable Court Administrator, Justice Presbitero Velasco, who according to the records of the Integrated Bar of the Philippines, he is the most telegenic Court Administrator ever produced by the Supreme Court, for the past thirty (30) years. He has a TV program, as you know, on law and justice which we encourage you to see regularly. The Honorable Executive Judge of Las Piñas City, Judge Joselito Vibandor, a professor of law of Arellano College of Law and an alumnus of the College of Law of San Beda College in Manila. The Honorable Judge Elizabeth Yu-Guray, UST Law Batch 1978, married to newly appointed RTC Parañaque Judge and former Fiscal, Honorable Jaime Guray. The Honorable Judge Erlinda Alvaro, prominent native of Leyte, where my mother also hails. The Honorable President of the Las Piñas City Bar Association, also an alumnus of the College of Law of San Beda, a trial lawyer and allegedly a cousin of Justice Presbitero Velasco, a native of Catanduanes, Bicol, Atty. Marlin Velasco. My superior in the Integrated Bar of the Philippines, the President of the Pasay, Parañaque, Las Piñas and Muntinlupa Chapter, a fraternity brother of Justice Velasco in Sigma Rho, UP Diliman, Atty. Ador Tolentino, the founder of the Parañaque City Bar Association. And of course, my law partner and fellow law professor in the Institute of Law, Far Eastern University, the emcee, Atty./Dr. Myrna Cueva Mercader. The Honorable, the highest ranking Public Prosecutor present at this time, Fiscal Jimmy Santiago. The Honorable and newly-appointed District Public Attorney, Atty. Querubin, JQ. Garcia. Of course, we greet and we will not mention for lack of time, we greet all the directors, and officers, as well as members of the Las Piñas City Bar Association, all the mediators of the Philippine Mediator Center assigned in Las Piñas City—I’m sorry, former Executive Judge and my kababayan in Leyte, I consider him my elder brother—pardon my poor eyesight. Ang tagal naming nag-uasap sa labas, nakalimutan ko. Actually, he attended the birthday of my mother, 75th birthday, last year and I’m happy about that and I always attend his birthday celebrations in his sala. Former Executive Judge, Honorable Bonifacio Sanz Maceda, direct from Leyte via Antique and Makati and then Las Piñas City. We acknowledge the presence of the directors, officers, and members of the Las Piñas Bar Association, some members of the Integrated Bar of the Philippines-Pasay, Paranaque, Las Piñas, Muntinlupa Chapter, the ranking police officers and the investigators of the PNP Las Piñas Police Station, the representatives from the DSWD of Las Piñas City. Of course, the ranking officer, and if they will be introduced later, the officers of the Women’s Desk of PNP Las Piñas City, the various representatives of the community pillar of the justice system of Las Piñas City from the barangays, the lupons and related entities. We also acknowledge the representatives of the Supreme Court Mandatory Continuing Legal Education Office and they are monitoring our presence here in the seminar the whole day. And of course, we acknowledge the representative, the Parole and Probation Officer of Las Piñas City and he will be introduced later, as well as the other pillars.
Ladies and gentlemen, friends, the activity today aptly called Mandatory Continuing Legal Education Symposium on the Revised 2000 Criminal Procedure cum Bench-Bar Dialogue is an annual activity of the Integrated Bar of the Philippines in conjunction and cooperation with the Las Piñas City Bar Association which is the institutional link of the IBP within the territorial jurisdiction of Las Piñas City. This is also co-sponsored by the Office of Representative Cynthia Villar and her good spouse Senator Manuel Villar, as well as by the Honorable City Mayor of Las Piñas City, Mayor Imelda Aguilar, and finally, also co-sponsored by the Office of Executive Judge of the local judiciary of Las Piñas City.
For the whole day, we will have various lectures of important topics under the subject matter of Criminal Procedure to be started by no less than the Court Administrator himself of the Supreme Court. We will focus on various issues and concerns that may require further dialogue for purposes of improvement and reform. Our main guest speaker, Justice Velasco, is heavily and directly involved in the Supreme Court’s Action Program for Judicial Reform and personally, I am glad that he is here with us. Like Justice Velasco—for your information, Justice, I grew up in Pasay City like you. Only a few meters from where you live, near Harrison.
May I request the lecturers, considering that a majority of the participants in this distinguished assembly is made up of non-lawyers, who constitute the majority of the pillars of the justice system, may I request the speakers to be flexible in their method of presentation so we can adjust our approach and simplify the discussion. Each lecture will be followed by an open forum and we encourage all participants, the distinguished participants, to share their views and inquiries and their experiences to improve the justice system of Las Piñas City.
Without much ado, ladies and gentlemen, it is my personal honor and privilege and I am truly pleased to welcome you to the 2005 Mandatory Continuing Legal Education Symposium and Bench and Bar Dialogue of Las Piñas City. Thank you very much and let’s enjoy the activity the whole day.
ATTY. MERCADER
Thank you very much, Atty. Laserna. Can we put our hands together again for him. Thank you very much. The theme for today, by the way, is “The Las Piñas City Criminal Justice System: An Agenda for Reforms”.
For the MCLE participants, we have two (2) monitors from the MCLE Committee of the Supreme Court who will be monitoring your participation. At this point, we would like to announce, too, that besides the—to the participants of the MCLE component of this program—there will also be given to the other participants certificates of participation or certificates of attendance. So, just hang on. Besides the learning that we’ll have today, in addition, you will be bringing with you your certificates of attendance.
At this point, may we call on the President of the IBP-Pasay, Parañaque, Las Piñas and Muntinlupa Chapter to give us the inspirational talk, Atty. Amador Z. Tolentino, Jr.
ATTY. AMADOR Z. TOLENTINO
Thank you, Myrna. Good morning to everybody, to our speakers and important guests today. I will not repeat the mentioning of the individual speakers and the guests because that will take a much longer time. I know that we are now quite behind the scheduled time as per the program so I will spare you all the same ordeal. Anyway, Atty. Velasco will again, later on, do the same job and that will take care of that. Anyhow, I would just like to inform everyone that when I first heard in one of our meetings, the Pasay Parañaque Las Piñas Muntinlupa Board, that there will be a Bench and Bar Dialogue that will be sponsored, or staged, by the Las Piñas City Bar Association, I did not waste any time in offering that your chapter, and I know most of you are members of our chapter, would like also to co-sponsor this event. As I’ve always said in my past speaking engagements in your previous general assemblies, earlier this year and even in years past, I’ve always looked at the Las Piñas City Bar Association as a good model of activities that will benefit the legal profession and as mentioned by Manny when I was introduced, there is a Parañaque City Bar Association that we have also last year put up to more or less trigger the same interest and participation from the members of the legal profession in Pasay City. But, seeing the attendance today, I can say that our own stagings in Parañaque City is still a fledgling act and we always look forward to seeing that day when in Parañaque, we can also muster the same number of participants in the bench and bar dialogues. We had one before and it was quite successful for an initial offering but this attendance is still something that we still have to duplicate.
It says here, I should give an inspirational talk but I think that it’s still too early in the day to give an inspirational talk. I know that you are still not bored to hear one but may I just take this opportunity to inform you that today, you’re going to earn seven (7) units for the lawyers—I am speaking to the lawyers—seven (7) units of MCLE credits but may I also take this opportunity to invite you that the PPLM Chapter will be holding a three (3)-unit lecture in labor law. We all are aware that there is already a new rules of procedure in NLRC and those of you who are practicing labor law, this will be an opportune time for you to get informed of these updates in the rules of procedure in the NLRC and also for some updated jurisprudence. Our speaker will be no less than the NLRC Chairman himself, the Honorable Benedicto Bitonio, Jr., who will speak on updates on jurisprudence and special problems in labor law, that’s the substantive aspect and the second topic which is the new rules of the NLRC procedure itself will be given to us by the Executive Clerk of the Commission, Atty. Apollo Sanggalang, who once spoke before the Las Piñas City Bar Association in one of your general assemblies. There will be three (3) units here and it will be held on November 24, that’s a Thursday, two (2) weeks from now, 12:30 pm to 5pm. It’s not going to be a long sitting and there will be a cocktail buffet. You will enjoy the meal at the Heritage Hotel, known for its cheap but quality food. I encourage all the lawyers who are practicing labor law, please avail of this opportunity. Registration fee is only P1,200 on site but if you want to avail of the early bird rate, you may contact our Secretariat at the IBP-PPLM Office. One of our secretaries is here helping in this event and you may inquire from Teresa. The early bird rate is P1,000.00.
So, without much further ado, I would like also to take this opportunity to welcome everyone and please enjoy the rest of the day. Thank you.
ATTY. MERCADER
Thank you very much, Atty. Tolentino. At this point please, let us call on Atty. Marlin Velasco, the President of the LPBA, to introduce the guests and the participants.
ATTY. MARLIN VELASCO
Good morning to everyone. Later on, I will introduce the participants in this Symposium and Bench-Bar Dialogue. However, we will go on first with our main speaker for the moment.
Our first speaker was a litigator for twenty (20) years, having handled numerous civil cases and special proceedings from the appeal before the Court of Appeals to the Supreme Court. He was the past President of the Philippine Columbian Association, past President of IBP-Cavite Chapter, past Governor and Vice President for Southern Luzon, also of IBP, past President of the Integrated Bar of the Philippines. He was also past Chairman, UP Law Alumni Association, Inc.
Ladies and gentlemen, he placed sixth in the 1971 Bar Examinations with a grade of 89.85%. He graduated with Bachelor of Laws from the College of Law, University of the Philippines and for those applicants, please take note, for the Judiciary position, he is a member of the Judicial and Bar Council. He was formerly an Undersecretary of the Department of Justice and formerly one of the associate justices of the Court of Appeals.
Ladies and gentlemen, without much further ado, I am honored to present to you the Court Administrator of the Supreme Court of the Philippines, the Honorable Presbitero J. Velasco, Jr.
HON. PRESBITERO J. VELASCO, JR.
Thank you, my prima, President of the Las Piñas City Bar Association, for such a wonderful and generous introduction and of course, I expect that because we are close relations. I have to greet and say mabuhay to one of the outstanding performers of the Court of Appeals, Justice Lita Lontok. Actually, I never recognized Justice Lontok. I think she gained a little weight. Probably, sa dami ng trabaho sa Court of Appeals. You know, sa Court of Appeals, they are given a lot of cases and almost of all are due for decision already so it’s really a big responsibility being in the Appellate Court.
I say mabuhay to Executive Judge Joey Vibandor, a very hardworking Executive Judge; former Executive Judge Boni Maceda, who is known for his express court procedures; one of the outstanding prosecutors in the Philippines, former prosecutor now a judge, Linda Alvaro, whose spouse is also one of our hardworking judges in Caloocan; and we have another good former, Judge Beth Guray. I say mabuhay to you. Of course, the Chairman of the Las Piñas City Bar Association, I say mabuhay to Atty. Manuel Laserna. I would like to commend you for undertaking this activity and I’m sure we will be having more activities of this kind because it is through these exercises we will be able to know the problems of the different pillars of the criminal justice system. Our very able toastmaster, the master of ceremonies, the Vice Chairman of the LPBA, Atty. Myrna Mercader, mabuhay. My frat-brod, the President of the Pasay, Parañaque, Las Piñas, Muntinlupa Chapter, Atty. Ador Tolentino. I say mabuhay to you. I also commend you for undertaking so many activities in the furtherance of the dispensation of quality justice in this part of the country.
I say mabuhay to the representative of the National Prosecution Service in this area, Prosecutor Jimmy Santiago and other Prosecutors present. I say congratulations and mabuhay to the newly minted District PAO Chief, JQ. Garcia. I say mabuhay also to the PHILJA mediators who are really contributing substantially to the reduction of cases now pending before the courts. I say mabuhay to the delegation of the PNP of the Las Piñas City and they have such a big contingent and we expect to hear much from you later on. Representatives from the Women Desk, from the different barangay councils and Lupon Tagapamayapa, I’m glad you’re all here. Of course, the officers and members of the LPBA, I say mabuhay to you. And I say mabuhay to the other representatives of the five (5) pillars of the criminal justice system. Friends, a pleasant good morning to all of you.
They say that there are five (5) pillars of the criminal justice system and you’re all aware of these. And these are the law enforcement agencies, the prosecution, the correctional agencies and then the communities. However, I find that the Bar, especially the IBP and the other voluntary bar associations, were left out and to me, they constitute the sixth pillar in the criminal justice system. Probably one of the more important pillars in the efficient dispensation of justice pertaining to the criminal justice. So I’m glad that all the pillars are well-represented today and I’m deeply honored that I’m a part of this activity and I know that there will be much knowledge sharing today.
I’m supposed to give a lecture on overview, status and needed reforms in the criminal justice system but I don’t want to have a monologue. This exercise, the organizers told me that the lecture would be forty-five (45) minutes and the open forum will be fifteen (15) minutes. Rather, I would request you to raise your hands and to out questions right away the moment a particular topic is discussed so that it will be still fresh in our minds and we will be able to get good inputs and contributions from all the participants in this lecture series.
Well, Confucius says, “I hear, I forget”. I know that lawyers and other people have the gift of gab and their attention span is only around twenty (20) minutes, and probably even less for lawyers. And lawyers definitely have the propensity to start opening their mouths because that is their main weapon. So, that’s the reason why I encourage you to start asking questions by simply raising your hands.
Confucius further says, “I see, I remember”. That’s why we’re supposed to have visuals in lectures. I can come up with gadgets or probably better, Powerpoint presentation. That is enticeable.
Lastly, Confucius says, “I do, I hear, I understand”. So, that is precisely the reason why I want you to interrupt me every time that you feel I said something wrong or I said something to which you vigorously oppose and I would welcome that. This is knowledge-sharing activity as I’ve said.
So overview. Overview of the criminal justice system. I attended a budget hearing before the Committee on Appropriations of the House of Representatives and there was one Congressman who asked to be given a chance to speak and the Supreme Court Justices were there, representing the Judiciary and this Congressman started to narrate the events pertaining to a criminal case which has been pending for a long time. The case has been coming back and forth from the trial court up to the Supreme Court. The case is still alive and it’s already six (6) years and the culmination of the case is not yet in sight. And so, he keeps on asking the question: “What kind of justice system do we have in this country when a criminal has not been brought to justice after so many years of proceedings in the court?” And he keeps on repeating, “What kind of criminal justice do we have?”
The way I look at our criminal justice system right now is that it needs a lot of repair. Probably, some may consider it like a ship full of holes, or more particularly loopholes. I know that the Rules on Criminal Procedure were just recently approved and made effective December 1, 2000 and yet after four (4) years, we find that cases in the criminal docket still move so slowly. Some say it’s like a turtle with crutches. Some say it’s like a turtle with centipede feet. It’s very, very slow moving. It’s a very, very slow moving creature. Probably that is the reason why in some cities, particularly Davao and Cebu, there are a lot of vigilante activities. Probably the vigilantes feel that swift justice means prosecution, adjudication and execution, probably in one or two days. And this is a bad reflection of the criminal justice system in the country. Before it’s only Davao that is known for its Davao Death Squad. Then later on, vigilantes in Cebu City followed suit and they are no. 2 in the ranking in the most number of people killed annually. Then probably other cities will follow suit, and other towns. And what will happen to the rule of law? There will be no more respect to the rule of law. People will now take the law into their own hands. That would be the day when the very democratic institutions will be taken down and we will have chaos in our country.
That, my friends, is how I look at where we are leading to unless certain reforms, changes, innovations are put in place. Unless the six (6) pillars of the criminal justice work hand-in-hand in seeing to it that a criminal case pending before a trial court is finished within a period of twelve (12) months. Probably, that is the goal. Probably, it can be finished much earlier.
What is the status of the criminal cases right now in this jurisdiction? We have a total of 802 criminal cases pending before the courts, excluding the Supreme Court. Seventy (70) to seventy-five (75) percent of the total cases are criminal cases and the number keeps on increasing, unless we immediately institute reforms and implement effective strategies.
What are the needed reforms? Well, my prima said I have been in practice for around twenty (20) years so I am more of a practitioner than an administrator or a magistrate. Of course, for about three (3) years, I was with the Department of Justice as Undersecretary. I handled several offices. Unfortunately, the NAPROS was not given to me. But anyway, I was able to participate in some committees where I recommended certain reforms in the processing of criminal complaints.
Probably, we should start with police investigations and forensic evidence, right? Police investigations have to be modified to such an extent that before a criminal complaint is filed with the prosecution, all sufficient and hard evidence should already have been gathered and collated. But based on my dialogues with the pillars of the criminal justice system in several cities nationwide, the usual comment on the part of our hardworking police investigators is that they do not have the equipment and they feel that more effective training courses should be afforded to them, should be given to them. And then there’s also that observation that their legal staff should be strengthened. Is that correct, my friends from the PNP? They feel that in the course of investigating a criminal complaint, a complaint involving a crime, then they should have legal guidance so that all the evidence needed to support and substantiate all the essential elements of that crime will already be gathered. I know for a fact that we need more lawyers in the DILG because when I was with the IBP, we have had occasion of meeting with the DILG people, more particularly with the Legal Office and that is their complaint. There may be some lawyer positions but it is so difficult also to entice our practitioners and lawyers to join the government service in the DILG.
Probably, this is one area where reforms have to be undertaken. In the US, in some state jurisdictions in the United States, the police investigators go to the office of the District Attorney for instruction, for direction, for guidance. Probably, we have to look into this system and may possibly adopt that later on. I don’t know from my friends with the PNP. Do you agree with that, that probably our prosecutors from the DOJ and other lawyers from the DOJ should participate in the investigation of crimes? Do you think that would be a better arrangement?
Okay? Yeah. So, I’m glad that we have the assent of the PNP people and we will take it up with our committee in the Supreme Court on Delegation Groups, okay?
The District Attorney in the US brags that the moment they file an Information with the courts, they are almost 100% sure of conviction because before they file an Information with the court, they see to it that all the hard evidence, whatever kind it may be, whether parole, documentary or object evidence, are all in place. And you always see this TV series Crime Scene Investigation, CSI. There is heavy reliance on the use of technology and equipment and that is what we should develop in the investigation of crimes.
Right now, I think, much reliance is made on information coming from assets, meaning information coming from the underworld. But then, they may be able to pinpoint to you the real culprit but what evidence do you have? In a recent case for murder involving one of our very own judges in Batangas who was assassinated by hired killers, there was really extreme difficulty in finding witnesses. But the investigators there were quite sure of the killers and so, the case is filed but the prosecution in charge of the case should work doubly hard, seeing to it that adequate, convincing and credible evidence should be introduced to successfully prosecute the case.
I’m sure that in this city, our police investigators do not do this. But what I heard, in some areas of the country, they even avail of professional witnesses, or probably assets themselves who are made witnesses in crimes. I’m not sure about this but I heard with this. So, indeed we have a big problem with regard to police investigation.
Raymond Larag, who was charged with the death of Venturina and whose stayed in the Quezon City Jail for more than seven (7) years, came out with a quote containing his findings and he said, of the total number of criminal cases filed in the courts, only 20-25% are convicted. And his conclusion was that the rest were innocent after all and there was a wrong filing of the criminal complaint, and there was a wrong prosecution and then there is much injustice done to these people. Of course, that may not really be very accurate conclusions because there are many reasons why criminal cases are dismissed, right? Sometimes, witnesses could not appear, or based on reasonable ground probably that the cases are dismissed.
Next, arrests. We have problems with arrests without warrant. Is that correct, our PNP people? Under the Rule, we can have a warrantless arrest if the crime has been committed and the person who would like to arrest somebody has probable cause to believe that based on his personal knowledge of the facts and circumstances of the case that the person to be arrest committed the crime. But, can we ask our PNP representatives here if you think this Rule is unequivocal already, meaning to say it’s very clear to you in application, or—can I request somebody to tell us your experience regarding warrantless arrest based on the second ground? Are you comfortable with arresting a suspect when you were not there during the commission of the crime and you came in later only after the crime has been reported to you? Yes? Can you identify yourself?
P/SUPT. ANGAN
I am Police Superintendent Angan. Basically, sir, the grounds for warrantless arrest are being followed by our investigators. In fact, this is where we get into some negative reactions from the community because some people in the community thinks that even if the policemen arresting a supposed law violator without seeing the actual violation, the community thinks that we should bring them and handcuff them and bring them in to jail. Basically, we do understand the grounds for warrantless arrests and our policemen follow these procedure.
HON. VELASCO
But, may I ask you Police Superintendent, for example a crime has been committed and it was been reported to you and after investigating the incident, three days after you’re able to locate the suspect who you honestly believe is the culprit. In that situation, can you make use of the warrantless arrest under letter (b) of the Rule? That particular rule on warrantless arrest?
P/SUPT. ANGAN
Because of the danger of policemen being charged, we play it safe. Normally, we go to regular filing of the case.
HON. VELASCO
Yes, there is much apprehension on the part of our law enforcement officers in effecting warrantless arrests and I have to agree with you on that as there will always be a problem on the recency of the application of the warrantless arrest.
In People versus Tonog, the apprehending officers had personal knowledge of the bloodstains on the pants of the person arrested but in another case, in the case of Posadas vs. Ombudsman, which involves Raymond Larag, the Supreme Court said after four (4) days, you cannot make use of the warrantless arrest anymore. Plus the fact that the NBI did not have personal knowledge of the facts and circumstances and there was merely reliance on unverified hearsay. So, to my mind, letter (b) of that particular rule on warrrantless arrest should still be further clarified, don’t you think so? Yes?
P/SUPT. ANGAN
Sir, sometimes even after three (3) days, we still try to arrest the guy. Pinapalabas na lang natin na hot pursuit.
HON. VELASCO
Yes, that’s correct, brod. You know, warrantless arrest is really based on the principle of hot pursuit. It’s really based on the principle of hot pursuit. But the issue here is whether the person who wants to arrest that suspect has probable cause, or an actual belief or reasonable suspicion based on verified information that that person really committed the crime. That’s why I said that you may arrest him five (5) days after or seven (7) days after, as long as you have probable cause to believe based on your personal knowledge of the facts and circumstances that this person, in good faith you believe, is the person who committed the crime and you may arrest him in another province or in Mindanao and that may take several days. The warrantless arrest may be justified. So, I think probably more elucidation or clarification should be made on the warrantless arrest.
However, an area of reform probably is that a police officer can file a petition with the court for the issuance of a warrant of arrest. The same way that you file for a petition for the issuance of a search warrant. Instead of just making use of that letter (b) of that particular rule on warrantless arrest then probably we can come up with a rule, and we intend to recommend this with the committee on the revision of the rules that a police officer or a law enforcement enforcer is given a right to file a petition with the court for the issuance of a warrant of arrest, a verified petition supported by affidavits and other evidence and then with the warrant of arrest, then you can already arrest that suspect. And that will protect our law enforcement agencies because that is being done in some state jurisdictions in the United States. Of course, the moment you arrest, we follow the rule on the delivery of a suspect, or the person arrested, to the judicial officer under Article 125.
In Germany, the police there can arrest anybody even after the lapse of so many years. They can arrest but the rule is the moment that person is arrested, within twenty-four (24) hours, he is brought to a judge. The police will explain to the judge why this particular person was arrested, informing the court of the evidence they have gathered and with which they should satisfy the judge, that the information should already be filed, and that this particular person should be detained. If the judge there believes that there is insufficient evidence, then he may order the release of the particular suspect, or he may order the detention and refer the matter for further investigation by the prosecutor. That is the practice in Germany. So, even after ten (10) years they were able to locate eyewitnesses and strong evidence to support the filing of the information then the police can arrest the suspect anytime.
In our jurisdiction, if the warrantless arrest is not applied, what the police will do, or the offended party will do, will file a criminal complaint with our prosecutor. And what happens when a criminal complaint is filed with the prosecution? Of course, the respondent is given the right to file counter-affidavit. If the suspect comes to know, by whatever way, or feels that an information will be filed against him and soon a warrant of arrest will be issued, then he will hide and flee. And that is a weak aspect of the criminal justice system in the country.
Executive Judge Joey, also a former outstanding prosecutor.
HON. JOSELITO dj. VIBANDOR
Thank you. Now, in the provinces, a police officer who would like to apply for a warrant of arrest, he will just file a complaint with the municipal trial court and the judge, based on the affidavits and the complaint submitted and the affidavit of witnesses, the judge will conduct a judicial determination of probable cause sufficient for the issuance of a warrant of arrest.
HON. VELASCO
Yes.
HON. VIBANDOR
But that is not available with the metropolitan trial courts.
HON. VELASCO
Correct.
HON. VIBANDOR
I understand, what I heard, the Supreme Court has amended this provision of law where they took away from the municipal trial court judges to conduct preliminary investigation. If that is so, then yung ating ambisyon—our ambition to get a warrant of arrest, wala na. Mapupunta na sa wala iyon.
HON. VELASCO
Correct. Good observation, Mr. Executive Judge. I was actually about to discuss that in relation to our problem. Yeah, the Supreme Court upon the recommendation of the Philippine Trial Judges League, approved the removal of that function from our municipal trial court judges. So, right away we hear a lot of complaints from our law enforcement agencies that they are having a difficulty in filing a criminal complaint because they have to go to the areas or the cities where the prosecutors hold office. This is a big blow to our criminal justice system, right? So, that is the reason why I explained a while ago that probably we should adopt that rule so that we will give more teeth to the efforts of the law enforcement agencies to arrest the criminals.
Now, going back to that problem where the municipal trial court judges do not now have the power to conduct preliminary investigation, probably the police or the other law enforcement agencies can make use of the provision in Rule 112 which says that in the absence of a prosecutor, then the criminal complaint in warrantless arrests can be filed directly with the proper court. But the problem still is with regard to the location of our regional trial court judges which are mainly found in the cities. So this is really a big problem. Actually, we recommended that there should be a transition period of one (1) year before that particular resolution takes effect. Unfortunately, I believe the DOJ says that it is already ready and so the Supreme Court said “Fine, we’ll make it effective.” Actually, it’s a blessing to our municipal trial court judges because the reason why Philippine Trial Judges League recommended that is because one of their national officers was fined by the Supreme Court for conducting an improper preliminary investigation, or an irregular preliminary investigation.
So at any rate, we have to grapple with the problem or else we will have more problems in our hands. So the police will have difficulty in filing the criminal complaint and prosecuting the criminal complaint.
Yes, please.
ATTY. RICHARD FUNK
In the surrounding villages in this area, as you enter the village, there is usually an announcement: “Report all/any suspicious looking persons.” Supposed it happens that a call was made by an occupant of a house wherein he found a taxi driver in front of his house and based on that summon, a police patrol came in, knocked at the window, and allowed the driver to come out. And in the process, subjected him to body search and found in his possession an unlicensed firearm. I think this would be a usual occurrence to the police officers. Would this constitute a warrantless arrest?
HON. VELASCO
Well, you should first discuss whether the search is legal and constitutional because usually, we apply the plain view doctrine, right. Of course you are not allowed to just frisk any person, unless you have sufficient ground or basis for doing that. But if by plain view, the police was able to see a firearm in site, well that may constitute a situation where a search warrant is not needed and an arrest as a result of a lawful search is valid. It’s a valid warrantless arrest, right. But we should be very, very careful with that and I’m sure our friends from the PNP are aware of the plain view doctrine, right? So, I think that is a valid warrantless arrest because as you mentioned in your factual setting, the firearm was seen there. But then, that is also subject to verification because the guy might also have permit to carry, okay. I think that’s how I look at it, okay.
Bail. We have a problem with the grant of bail. Why? Because the moment the judge grants the bail in bailable offenses and then there is still no arraignment and the accused jumps bail, the case cannot proceed anymore. So what we intend to do is before the judge releases an accused and granted provisional liberty, the judge should immediately schedule the arraignment, probably the next day and so once arraigned, even if he absconds and flees and jumps bail, then we can proceed in absentia. We have several criminal cases pending in the dockets of our courts and which have been archived because the accused who were granted bail later on jumped bail before arraignment. So, that is what we want to see, the arraignment right away being done by the courts.
Another area of delay is the Motion to Quash. If the accused does not have a strong defense, the lawyer for the accused will definitely avail of all possible strategies to delay the proceedings. So, you file a motion to quash and that takes time. You file an MR if it’s denied and sometimes it is elevated on certiorari. Although, I think, under the Rules now, you are not supposed to elevate anymore the denial of a motion to quash unless there is patent ground for the dismissal of the case like lack of jurisdiction or prescription. But what we are suggesting is that we do away with the Motion to Quash. The arraignment should proceed so that the criminal proceedings will not be delayed but the plea that will be entered by the accused will be subject to a statement of defenses that will be submitted during the pre-trial.
We have also recommended, in civil cases now, the deletion of the Motion to Dismiss because it is also being used as a ground for delay in civil cases and we say that the grounds for a motion to dismiss can be alleged as affirmative defenses in the Answer. There can be a preliminary hearing on these defenses or these defenses can already be scrutinized and threshed out during the pre-trial.
So, in criminal cases, we feel that the motion to quash can already be deleted because it is one way of delaying the case, right? Anyway, you can enter a plea of not guilty subject to the submission of a statement of defenses during pre-trial. During pre-trial, the court can look at the defenses presented, scrutinize them, discuss the matter, argue on it and then it can be resolved. Because if the court has no jurisdiction, during pre-trial, that can be resolved. If the case does not state a charge, a criminal offense, if a motion to quash is filed and it is granted, the accused is not off the hook because the prosecution will merely amend the Information. So, we will just dispense with the motion to quash and hopefully the committee on the revision of the rules will agree to delete this stage in the proceedings.
Likewise, the Demurrer to Evidence, we feel this should already be taken out of the rules as an event because more often than not, the accused files a Demurrer to Evidence. Just proceed with the trial and let’s have a decision made on it.
What are the other matters that we want to discuss with you regarding the criminal justice system? Continuous trial under the Rules which is very seldom used. We have to be lenient to our courts because, I think, the practitioners are aware of the big number of cases in their docket and definitely continuous trial cannot just be implemented successfully if you have a very high caseload. Probably a caseload of 200 we’ll set a stage for continuous trial. We have a judge in Davao City, RTC judge, who implemented this continuous trials and her settings were two (2) years in advance or three (3) years, on the third year, fourth year from the date of the pre-trial because she is strictly implementing the continuous trial scheme under the rules. And of course the accused are complaining because the hearings will be held four (4) years after the pre-trial, three (3) years after the pre-trial. So, it’s just not possible at present unless we confine our courts to a manageable caseload.
Then, we have issued the circular, Reso 3-1-09 on Pre-trial. May I ask our practitioners if you have obtained copies of this Reso on pre-trial and have read it? Because this was made effective in July last year. It’s more than a year now that this is supposed to be applied, in civil and criminal cases. May we know from our practitioners if they are aware of this already? Yes? Alright.
So, what are the more important things that we want our court stakeholders, more particularly the lawyers, the government and private lawyers, to make use of during pre-trial? You are aware that it is a directive in the circular that the parties in a criminal case should be candid with the court. Meaning, lay your cards on the table. This is a directive from the Supreme Court that the government and the private practitioners should identify and mark all the evidence they intend to use during the trial. So, whether testimonial, you’ve got to tell the court already who are your witnesses. What are your documentary evidence? What are your object evidence? Otherwise, you are considered to have waived the right to present these evidence. Why are we saying that? Because we want to limit the assignment of hearing dates to each party. We want to know how many witnesses you’ll have because we want to limit the examination of each witness to one hearing date which is what we call the one-day examination of witness rule. We want to be assured that on that particular hearing date assigned for this particular witness, that the examination of this witness will push through and will be consummated because by doing so, that is the only way by which we will be able to comply with the six (6)-month trial period under the Rules on Criminal Procedure. And the rule is, there should be strict compliance with the assigned hearing dates for that particular party. Meaning to say, if we give you four (4) hearing dates then that is all you will have. You may postpone the first hearing date but the judge may impose sanction on you under Rule 141 because you asked for that postponement. Nevertheless, you still have three (3) remaining dates. You’ll go to the next hearing date. If you failed to present your evidence on the second hearing dates then you still have two (2) remaining hearing dates. You will go to the third hearing date, you present your evidence or you may opt not to present, that’s your look out, don’t blame us. You only have hearing date and that is all we will grant you. That is the strategy we want to implement in criminal cases so that on a certain point, a certain day specific, we know that the presentation of evidence will be finished. What should be required of the party presenting his evidence on the last hearing date? The lawyer for that party will be required to make a formal offer of evidence. Why? Because if a party asks for a period of time to file his written offer of evidence then that causes delay. Then the other party will ask for time to make his formal written opposition or comment on the offer, that causes delay. So, we want to finish the offer of evidence on the last hearing date, verbal offer of evidence, oral manifestation on the opposition or comment and then the judge may issue already a ruling on the admission or he may ask for a little time, a few days admitting the evidence. So, what applies to the prosecution should apply to the accused, right?
Pardon my saying this but when I was in practice, and I hope you don’t mind Mr. Prosecutor, that my observation is criminal cases are delayed to a certain degree because some of the postponements are made by the prosecution, by the State. Likewise, our judges are also lenient in granting these postponements knowing of course the heavy bulk of work of our prosecutors who appear daily in the morning’s court sessions and conduct preliminary investigations in the afternoon. But then we have to make sacrifices. I know that the DOJ is exerting a lot of effort in seeing to it that the prosecution is prepared for the presentation of the evidence for the State. That’s the reason why, I think, former Secretary Artemio Toquero required the prosecutors to prepare a trial guide, right? There is a trial guide supposedly and that’s important for all litigators, whether Government or private. You’ve got to have a trial guide, right?
What else? Of course, we have mediation and I’m glad PHILJA mediators are here. They’ve done a lot in reducing the caseload of our courts. There are certain mediatable cases like violations of BP 22, Estafa, quasi-offenses. An innovation is that there can be a preliminary conference before the Clerk of Court, right? We want our judges to set a preliminary conference before the Clerk of Court for purposes of: 1) marking of the exhibits; 2) comparison between the original and the clear copies of the original; asking the parties for stipulations and admissions; asking the parties to list down already the issues. But more importantly, the Clerk of Court is also tasked to exert effort in mediating and settling the case.
I told you that there are only few mediatable criminal cases but we know for a fact that even in non-mediatable cases, parties may possibly settle. You know, in the Mt. Province, we have some municipal trial courts there who do not have a single pending case in their docket. Why? Because in those areas, they apply the Budong justice system which is probably a very good strategy. The Budong system is implemented by a council of elders, the heads of the big families, and they are the ones who mediate. They take the place of probably the Lupon Tagapamayapa there and it’s very effective.
It’s already time. I’m sorry. I just get carried away. Anyway, what I’m saying is that even in heinous crimes like murder, rape, whatever, arson, whatever, in the Budong system, they are able to settle it. The beauty of that, probably they are the very first ones to implement restorative justice. Meaning the offended party or the relatives of the victim play a key role, a big role, in the rehabilitation of the accused. Can you imagine that? You’re the wronged the person and you will help this guy who did you wrong to be reformed and rehabilitated and brought back to the society as a productive unit? That is the trend.
What I’m saying is during that preliminary investigation, if the offended party does not want to proceed with the criminal case anymore, if the relatives are satisfied or probably they were paid—it doesn’t matter, because they are the ones who will prosecute the case actually, not the prosecutor. They will be the ones to gather the evidence. They are the ones who know more the witnesses. They are the ones who are supposed to bring the witnesses to the court actually, even without the benefit of a subpoena. In such a case, I think, the prosecution should be amenable to a dismissal. Anyway, that result can be achieved during the trial of the case because the complainant’s witnesses will not testify anyway and the prosecution will not have any evidence at all to support his case for the State, isn’t it?
In case there is civil liability or there are some staggered payments to be paid, or teardrops, probably what we suggest is a provisional dismissal with the consent of the accused. They have one (1) year to re-open it for criminal cases involving offenses with penalties below six (6) years. Two (2) years to open it for crimes with penalties above six (6) years, and that’s it. And you help the courts by taking out this particular case and once the civil aspect is satisfied then everybody comes out happy and there is peace among neighbors, right?
(Ten minutes.) Anyway, what we want the lawyers for the defense is to participate actively in the pre-trial of criminal cases. We want our courts to obtain and gather as many stipulations and admissions of fact because if you have many stipulations and admissions of facts, then there will be very, very few factual issues to be tried. If you have very, very few factual issues or legal issues to be tried then you will have fewer hearings.
In Japan, they conduct many pre-trial conferences and sometimes they only have one hearing date for the State and one hearing date for the defense because the judge has exerted efforts in seeing to it that all possible admissions are taken in and obtained. So, in these present guidelines, the accused is supposed to tell the court what are his defenses. Why? Because we want to know how to go about in scheduling the case, scheduling the trial. We want to see to it that the trial is shortened and abbreviated and the only way by which you can do that is by finding out what are your defenses. Of course, in self-defense there is reverse trial and that’s very important and probably on other cases where the accused will bank on exculpatory and justifying circumstances, then there can also be reverse trial, like insanity. Why will the prosecution still present evidence, right?
So these are the modifications, and I have one more minute.
Submission of memoranda. In civil cases, it’s supposed to be compulsory. In criminal cases, it’s supposed to be optional, much as we want it to be mandatory. Why? Because if you will submit memoranda, then our courts will be guided by your citations on the applicable law or jurisprudence. It’s just a matter of verifying the cases you cited and that’s it. Then it’s just a matter of reading it and finding out whether it is the correct application to the issues in the case. For the private practitioners, I suggest that you file your memorandum. Anyway, you can charge your client for it, right? I hope to see the day when the Public Prosecutors and the PAO lawyers will have the luxury of time to submit their memoranda.
For lawyers, you know that the accused has the right to a speedy trial. Just keep on availing of that right of your client to speedy trial. Of course subject to certain guidelines like of course, when there is only oppressing or vexatious delay then the court is compelled to order the dismissal.
Another thing, modes of discovery or deposition. I hope practitioners in criminal cases avail of the modes of discovery and deposition. Why? Because we will be able to cut short the trial period if you already have the deposition of your witnesses, correct?
Service of subpoena. The reason why we ask you to state all the names of your witnesses during pre-trial is because we will already issue subpoenas right away, notifying the witnesses much in advance of the hearing dates, probably three (3) months or four (4) months in advance of their obligation to testify. But in case they cannot testify then we ask the practitioners to avail of the use of depositions under Rule 23.
Supposed the witness does not want to testify, you have the right to require a bail for these witnesses who do not want to testify, isn’t it? I hope our lawyers will avail of that. Or if you know that your witnesses has become sick, seriously ill, or resides more than 100 kilometers from the place of the court, or there are special reasons or justifiable circumstances which will prevent the witness from testifying, then you’ll have that right to have the witness examined even before the scheduled hearing. That is the best way by which practitioners can help the court in expediting the cases.
So, I have to end my short discourse. I would like to thank all of you for giving me this chance to be with you, talk with you and discuss this alleged strategies and innovations which will hopefully expedite the processing and adjudication of criminal cases. My time is up. I think that includes the open forum. Thank you very much and if you want to write to me about anything, feel free to write to me or even call at my office and I’m more than willing to talk to you, more particularly with proposed innovations and strategies in expediting and in dispensing quality justice.
Maraming salamat po.
ATTY. MERCADER
Maraming salamot po, Justice Velasco. Palakpakan po natin uli si Justice for his very, very valuable time. We know that he is busy and we’re very happy that he could make it this morning for this affair.
If you still have very urgent questions to ask, we may entertain still one or two, especially from the police investigators. If they have questions, because the questions were already interspersed in the lecture. It was a two-way affair. If there are questions and very urgent ones, we may entertain one or two from the floor. Yes, sir. Please identify yourself.
CAPT. ARTATES
Ma’am, ikaklaro ko lang yung warrantless arrest, particularly yung letter (b). Nakalagay po doon that a crime has just been committed. Ang tanong ko po, sir, ano po ba yung ibig sabihin na a crime has just been committed? Pagkatapos po ng limang oras, sampung oras o dalawang araw. At pangalawa—
HON. VELASCO
I-discuss na agad natin yan. Yun nga yung problema as to the recency that’s why I’m saying that has to be clarified. But then, in the case of People versus Tonog, the Supreme Court says it’s one day. Probably it may be two (2) days or three (3) days. It depends on the circumstances of the case because if you’re not able to arrest him right away—so, it may take five (5) days before you arrest him but you show that you exert efforts in arresting him and there’s continuous effort in locating him, then to my mind that can be justified.
The offense has been committed, the more important thing to consider is the period of time that elapsed from the time the crime is committed and then the arrest.
CAPT. ARTATES
So, ibig sabihin po nun, sir, wala po tayong clear-cut policy kung ilang oras, ilang araw?
HON. VELASCO
Well, the Rule does not say but as I’ve said, the principle is hot pursuit. Di naman pwedeng isang buwan siguro nagho-hot pursuit ka pa. I don’t think the Supreme Court will sustain that. It should be a few hours or a few days but not too long a time. Kaya sabi ko nga, we have to further elaborate this rule kasi nga medyo mahirap yung application, correct. That’s why I suggested that probably, it is better for the police to just file a petition with the court and I hope this is approved as a Rule for the issuance of a warrant of arrest. Parang yung application for a search warrant. Kasi diba pareho naman yan sa provision sa Constitution? It’s captured in the same Constitutional provision so I think that’s the better procedure and that will protect you from charges.
CAPT. ARTATES
So yung petition po, sir, nandun na yung pangalan ng complainant, mga witnesses?
HON. VELASCO
Yes.
CAPT. ARTATES
Yung pangalawa ko pong tanong, sir, kasi doon sa letter (a) po ng Rule 113, wala pong problema—
HON. VELASCO
Wala namang problema sa iba. Letter (b) lang diba?
CAPT. ARTATES
Opo. Yung pangalawa po, yung letter (b) nga, nakalagay dun that he has probable cause to believe based on personal knowledge of facts and circumstances—
HON. VELASCO
Yan nga ang magulo, di ba?
CAPT. ARTATES
Pano bo naming ma-inquire yung personal knowledge of facts and circumstances? Yun lamang po, sir.
HON. VELASCO
The Supreme Court says yung probable cause is an actual belief or a reasonable ground of suspicion but you should also be made aware or know facts regarding the case. Yung mga patungkol sa kasong iyon. Like for example sa Tonog nga. Dun sa Tonog, sabi ng court, kasi nakita nya may bloodstains sa pants and Tonog there in that case even cried before the police investigators and he was not arrested actually. He was merely invited and he went to the police force but then siguro probably out of remorse, he cried. Because of that, the police already came to the conclusion that there is reasonable ground to believe that he is the one who committed the crime of murder. Plus the fact that the police also went to the scene of the crime and was able to see the crime scene and also talk to some people there. So, hindi pwede yung after a few days, without you going to the scene of the crime or being familiar with the facts of the crime, the incident, you just rely on the say so or the information of an informant, that will not constitute probable cause. It will be unverified hearsay information. Kaya nga, as I was saying, I think there is still more room for clarification of that particular provision. Kahit kayo naguguluhan, di ba?
CAPT. ARTATES
Opo, sir. Kasi tatakbo po samin ang complainant “Eto po, sir, ang pumatay sa anak ko.” Ngayon, tinatanong namin, based on that complaint, can we now arrest the suspect?
HON. VELASCO
Nandun ba sya? Nandun ba yung nagsabi sayo nung mangyari ang crime na yun?
CAPT. ARTATES
Eh, sir, nandun po yung magulang tinuturo—
HON. VELASCO
Kaya nga, nandun ba yung informant na nagsabing—was he a witness to the crime?
CAPT. ARTATES
Yun pa, sir, ang problema pa, wala pa yung testigo.
HON. VELASCO
Yun na nga, eh. Unverified hearsay yun eh. Nalaman nya lang sa ibang tao yun. Hindi nya pa nakausap ang actual witness. The investigator did not even actually go to the scene of the crime and conduct investigation, di ba? So unverified yun. Yan ang mga explanation ng Supreme Court because I’m just quoting settled decisions. Para iba-iba ang factual setting.
CAPT. ARTATES
Salamat po, sir.
HON. VELASCO
Thank you din. Isa pa?
ATTY. MERCADER
May we just remind na meron po tayong separate lecture on arrests and seizure and rights of the accused. If your question falls on these matters then we will also discuss the Supreme Court decisions, Justice, so maybe we can let go of our Honorable Justice this time so that we will not encroach on the timeslots of the other speakers as well. If you have questions, I will appreciate that you write them down and let us make them part of these proceedings and then we will raise them up to the office of Justice Velasco, Jr., all at the same time for answers then it will come in a form of a consultant to guide the respective pillars of the justice system. Would that be okay for the meantime?
So, at this point, please allow me to read the plaque of appreciation that we will award the Justice. We would request the Executive Judge, Judge Vibandor, the LPBA Chairperson and President, IBP-PPLM President to please award this plaque of appreciation which I read:
(ATTY. MERCADER READING THE CONTENTS OF THE PLAQUE OF APPRECIATION)
ATTY. MERCADER
May we ask Atty. Velasco to kindly introduce our next lecturer?
ATTY. VELASCO
(INTRODUCTION OF JUSTICE ARCANGELITA R. LONTOK)
JUSTICE ARCANGELITA R. LONTOK
(LECTURE)
ATTY. MERCADER
Okay, we’re right on time. We started at 10:15. It’s now 11. We have fifteen (15) minutes for the open forum. You may now please stand up and ask your questions. There are microphones on the floor. Just identify yourselves. Yes, from the law enforcement?
POLICE OFFICER
This is just a follow up question on the definition of “a crime has just been committed”, one (1) hour, two (2) days or three (3) days. Honorable Velasco gave a situation. The matter was reported to us after three (3) days, yung suspect is just roaming around. Ang tanong ni Honorable Velasco, was the mother a witness to the crime? Definitely po, kung hindi sya witness, hindi natin mahuli. What if the mother was a witness to the crime?
JUSTICE LONTOK
What I understand from what Justice Velasco said is that you have to treat this on a case-to-case basis because actually, if the arresting officer is of the honest opinion that a crime has been committed by the person whom he intends to arrest then—because that is actually the meaning of the second instance where a warrantless arrest can properly be made. You have to be convinced pursuant to the facts and circumstances which are actually available to you on a personal belief that a crime has been committed and that the person who you intend to arrest is the one who committed the crime. Did that answer the question?
ATTY. MERCADER
To the person who asked the question, do you have clarifications or did that do for you?
POLICE OFFICER
Clear, ma’am. Clear.
ATTY. MERCADER
Any other questions from the floor? Yes, Atty. Funk?
ATTY. FUNK
Justice, supposed after conducting a preliminary investigation, an Information has been filed in court. During the proceedings, a Motion for Reconsideration is filed with the Prosecutor’s Office. Supposed the same was granted, what happens to the case pending with the court? First, the prosecutor may file a Motion to Dismiss. Can the court immediately act on it without any hearing? Supposed there was a hearing and the same is granted, what will be the relief of the offended party?
JUSTICE LONTOK
What is the motion of the movant?
ATTY. FUNK
Motion to Withdraw Complaint after the Motion for Reconsideration.
JUSTICE LONTOK
Motion to Withdraw the Complaint—
ATTY. FUNK
Yes, by the Fiscal’s Office.
JUSTICE LONTOK
Is this after arraignment?
ATTY. FUNK
Not yet.
JUSTICE LONTOK
After filing in court?
ATTY. FUNK
Yes. There was a preliminary investigation conducted and the Fiscal filed the complaint or information, as the case may be. While the case was already in court, the accused filed a Motion for Reconsideration and it was granted in the Prosecution’s Office. Now, the Prosecutor filed a Motion to Withdraw the Complaint without setting it for hearing, for example. Can the court immediately act on it?
JUSTICE LONTOK
Actually, the prosecution of an offense is directly under the control of the Public Prosecutor but once a case is filed in court, there must be leave of court before anything can be done by the Public Prosecutor.
ATTY. FUNK
Does that mean that the offended party here must be notified when according to you he is the one in control of the case?
JUSTICE LONTOK
But anything that the Public Prosecutor must do must be with the consent of the offended party; otherwise, the Public Prosecutor exposes himself to the risk of—
ATTY. FUNK
Then the Public Prosecutor is no longer in control of the case. Supposed it is his opinion that there is no case at all, must he be controlled by the offended party? Let us assume further. Supposed the Prosecutor believes he is right and he does not listen to the offended party, what will be the recourse of the offended party?
JUSTICE LONTOK
It will be a case against the Public Prosecutor when the Public Prosecutor can actively decide for himself what to do with the case.
ATTY. FUNK
In other words, the offended party will have no personality anymore if the Prosecutor should file a Motion to Withdraw.
JUSTICE LONTOK
That will be the look out of the Public Prosecutor.
ATTY. FUNK
Can he not file an opposition to the motion to withdraw or if that is denied, can he not elevate it to the higher court?
JUSTICE LONTOK
The motion is actually not—a motion to withdraw—he can file a case against the Public Prosecutor himself and because a withdrawal of the complaint is in fact a decision of the complaint or information. I think the recourse of the offended party will be to file whatever case—
ATTY. FUNK
An administrative case against the Public Prosecutor.
JUSTICE LONTOK
Yes, an administrative case against the Public Prosecutor.
ATTY. MERCADER
Yes, any other questions? Please identify yourself.
ATTY. CACAL
Now, in this particular case, in the example set by Atty. Funk, supposed you filed your motion and it was not acted upon by the court. Now, you’re saying, Justice, that the offended party must file a case against the Prosecutor. Now, if the offended party will file a case against the Prosecutor and file it with the Ombudsman, then it will take time before that case will be decided but what will happen to the case? Will it be dismissed?
JUSTICE LONTOK
Actually, the motion has to be acted by the court. If the complaint/information has already been filed in court, it will be up to the judge who handles this case on what to do with the motion. The court can grant or deny the motion, depending upon the motion itself.
ATTY. CACAL
Supposed the motion will be approved by the court, who will the offended party in that petition for review of that decision of the Prosecutor?
JUSTICE LONTOK
If their Motion to Withdraw is without the consent of the accused and it is actually, in effect, an acquittal so I don’t think it can be reviewed anymore.
ATTY. MERCADER
Justice, may we give Atty. Laserna chance to also answer?
ATTY. LASERNA
May I just clarify the point of Atty. Funk and Atty. Cacal? Under Rule 110, and the Justice is correct, the prosecution of a criminal case is completely under the direct control and supervision of the Public Prosecutor. Now, in the case cited by Atty. Funk, the Information was filed in court but prior to arraignment, the accused filed a Motion for Reinvestigation or a Motion for Reconsideration with the City Prosecutor, seeking a reconsideration of the resolution indicting the accused.
Now, the question that arises is whether or not in filing the Motion to Withdraw the Information, whether or not the offended party should be notified or should consent to the motion. To be notified, yes, because everything that happens with respect to motions under Rule 15, the adverse party must be duly notified. But to consent on the motion to withdraw prior to arraignment under Rule 110 is not necessary. In fact, in the recent case of Mantao and Aquino, only recently, the issue that arose there was this, the prosecutor filed a new Information removing the names of certain original accused from the previous information and adding the names of Aquino and Mantao. Now, the issue raised was what should take seniority or priority in the legal appreciation of the situation? Should it be Rule 119 with respect to the discharge of an accused as a state witness or Rule 110 with respect to the unilateral power of the prosecution to withdraw the information prior to arraignment? The Supreme Court in the case of Mantao and Aquino upheld Rule 110 prior to arraignment vis-à-vis Rule 119.
So, with respect to your question, I believe, there is no need to secure the consent of the private complainant. There’s no need to secure the consent of the private complainant prior to the arraignment of the accused.
ATTY. FUNK
Can the complainant in this case file an opposition to the Motion to Withdraw?
ATTY. LASERNA
Of course, yes because he will be furnished and the same will be set for hearing. Ultimately the judge will decide who has seniority and control under Rule 110 in a situation prior to arraignment.
ATTY. FUNK
So the situation now becomes the client has become an oppositor because supposedly the prosecutor represents the victim.
ATTY. LASERNA
But the private complainant is not the client of the Public Prosecutor. It is the State, the society which he represents. The private complainant is only a witness to the criminal complaint.
ATTY. FUNK
But he is the one who is offended.
ATTY. LASERNA
Yes but he is not the “client” to the extent that the client controls the lawyer. That’s not the case.
ATTY. FUNK
But in a way. My point is it is now the client who is controlling the Fiscal. If, according to you, that the real public official who is supposed to be in control in the supervision of the case, what he says goes and he cannot be opposed by a mere client or a mere witness. That is my point.
ATTY. LASERNA
Pwede syang mag-oppose pero hindi pakikialaman ng judge because under Rule 110, prior to arraignment, the Fiscal may withdraw Information.
ATTY. FUNK
Let’s exaggerate a little bit. Supposed, because of the opposition, the judge now denies the motion. Therefore, can the case continue? But the Fiscal refuses to continue with the case because he feels sincerely, emphatically that there is no case. Would you allow now the Private Prosecutor or the offended party to prosecute the case?
ATTY. LASERNA
Ay, hindi pwede. Now, the practical issue will now arise. What should the boss of the trial prosecutor do in relation to that case because the Chief City Prosecutor or even the Chief State Prosecutor should make a decision? If the superiors feel that the trial prosecutor handling the specific case is now in a psychological quandary then he must be replaced. Nag-rule ang court eh. Anyway, that’s my opinion. Ano ang opinion mo, Judge Vibandor?
HON. VIBANDOR
I’m looking at it differently. You know, in the first place, the Information had already been filed in court and applying the doctrine of Crespo vs. Mogul, once the criminal Information is filed, the Office of the City Prosecutor loses jurisdiction over the case. So, I think the filing of a Motion for Reconsideration is misplaced. Dapat hindi pinatulan ito ng Fiscal. Now, assuming na pinatulan na nga ng Fiscal and that the Fiscal believes that there is no case after all, the subsequent filing of a Motion to Withdraw Criminal Information just like any other litigated motion, they should be set for hearing by the court. Any motion filed in court should be set for hearing and the adverse party, in this case the private complainant now becomes the adverse party, should be given the opportunity to comment or to oppose the motion. Now, just the same if the motion is granted by the court and issued an order for the withdrawal of the criminal information, the private offended party still has recourse. He can perhaps file a petition for review with the Department of Justice or—hindi magugustuhan ng Fiscal ito, file-an natin ng administrative complaint ang mga fiscal.
ATTY. MERCADER
Time is up. We will just entertain one more question. Actually, for the non-lawyers, ganyan po talaga ang mga abogado. There are decided cases and there are too many of them. There’s always two sides to an issue that’s why I really find it difficult for the judges and justices when they have to resolve these issues. They would really have to make good research on which decided case is applicable. So, ganun po, there’s always two sides to an issue so don’t be astonished too see why there are many views on the floor. Finally, this will end up for the judge to resolve and after the judge renders a judgment one way or another, the losing party may go on appeal or certiorari, or whatever and it can reach the Supreme Court on that point and matters are finally settled at the Supreme Court level. If there are no more questions, we will again request the Executive Judge, the LPBA officers, Atty. Tolentino to award our Honorable Justice, very dear to the LPBA, our own, the plaque of appreciation.
(AWARDING OF THE PLAQUE OF APPRECIATION)
ATTY. MERCADER
May we now call on Atty. Velasco to kindly introduce our next lecturer?
ATTY. VELASCO
(INTRODUCTION OF HON. JOSELITO dj. VIBANDOR)
JUDGE JOSELITO dj. VIBANDOR
(LECTURE)
ATTY. MERCADER
Meron pa po naman tayong ten minutes for the open forum. Please take the microphone.
PROS. JIMMY SANTIAGO
Good morning, Judge and to my lovable, favorite Judge Guray. Judge, you made mention of probable cause. For criminal cases cognizable by the RTC, there must be a certification issued by the investigating prosecutor regarding the fact that a preliminary investigation has been conducted. Then thereafter, after filing, there is that judicial determination again of probable cause. You made mention of Judge Callejo in People versus—
HON. VIBANDOR
Ocabe versus Justice Gutierrez.
PROS. SANTIAGO
He opined that the certification has been rendered ineffective?
HON. VIBANDOR
No, hindi naman ganun. Ang sabi lang dun sa case ng Ocabe versus Gutierrez, the certification of the Fiscal is ineffective. Now, it is ineffective insofar as that judicial determination of probable cause for issuance of a warrant of arrest. So, in other words, the judge should not rely solely on the certification of the Fiscal. Kasi yung certification ng fiscal for the filing of the criminal information in court, tatlo lang yun: 1) there is probable cause to engender a well-founded belief that a crime has been committed; 2) there is sufficient ground to hold the respondent for trial; and, 3) there is prima facie evidence to indict the respondent.
PROS. SANTIAGO
Do I get you right, Judge that Judge Gutierrez also relied on the certification made by the Honorable Judge now?
HON. VIBANDOR
You know in that case, Judge Pedro Gutierrez of Pasay City issued the warrant of arrest, he relied on the findings of the investigating fiscal based on the attached document, the complaint-affidavit, as well as his witnesses. Ang nangyari kasi itto sa Ocabe versus Judge Gutierrez, the accused here filed a Motion for Judicial Determination of Probable Cause. Ang ginawa nya, dineny nya on the ground that he has already ruled on the matter based on the certification of the fiscal. Ako yun. Ako yung fiscal na yun.
PROS. SANTIAGO
Thank you very much, Judge.
ATTY. MERCADER
May we hear the last question already? If you have questions just write them down and just submit them as part of the proceedings.
MR. SERZO
Good morning, Judge. I am Mr. Serzo of the Las Piñas City Parole and Probation Office and a non-lawyer. Noting your lecture, Judge. One of the instances wherein anybody can effect an arrest even without the benefit of a copy of a warrant of arrest is that a crime has just been committed and the arresting person, not necessarily police officers, has reasonable ground to believe that the person to be arrested has committed the offense. Question, is that determination by the arresting officer be questioned of the existence of probable cause, that determination by the arresting officer?
HON. VIBANDOR
In answer to your question, when a case is filed in court and if that issue is raised before the arraignment of the accused, in other words, you are questioning the legality of the arrest of the accused either in a Motion to Quash on the ground that the court has not acquired jurisdiction over the person of the accused. You know, that is a question of fact for the court to resolve and just like any other issue to be considered by the court, that fact, whether there is probable cause, should be decided by the court and that must be based on the evidence presented during the trial. So, ang mangyayari itto, the court would have to determine whether the arrest is illegal or not. And for the court to determine, it is necessary for the court to see if the requirement under paragraph (b) is complied with and that is whether the offense has just been committed and the arresting officer has probable cause to believe, based on personal knowledge, that the person he has arrested has committed it.
The probable cause here, again, is a question of fact. Now, if it is a question of fact, evidence sought to be presented and you must convince the court that your probable cause is based on your reasonable ground of suspicion, coupled with good faith.
MR. SERZO
Thank you, Judge.
ATTY. MERCADER
We realize that the discussion is really very interesting that’s why we encourage the law enforcement men to please write down additional questions that they have and other pillars of the criminal justice system so these issues may be correctly or rightly dealt on. Please submit any questions you may have to Ms. Lea Garcia, she is transcribing all the proceedings for today. Please, if you have questions, kindly submit in writing all these questions.
We now request again the sponsors of this event. We would like to first acknowledge the presence of our beloved Congresswoman, one of the co-sponsors of this event, the Honorable Cynthia Villar. We would also like to acknowledge the judges who came, not now but earlier, in the order that they came in, Judge Lorna Navarro-Domingo, Presiding Judge of Branch 201 and also Judge Leopoldo Baraquia, the Presiding Judge of Branch 200.
May we call on the co-sponsors to present the plaque of appreciation and the certificate of participation to the Honorable Judge Joselito dj. Vibandor? Palakpakan po natin uli si Judge Vibandor for a very interesting lecture. Ang dami pa kaso wala na po talaga tayong time. So, may we request the Honorable Congresswoman Cynthia Villar . . .
(AWARDING OF THE PLAQUE AND CERTIFICATE TO HON. JOSELITO dj. VIBANDOR)
ATTY. MERCADER
May we now call on the President of the LPBA, Atty. Marlin Velasco, to introduce our luncheon speaker?
ATTY. VELASCO
(INTRODUCTION OF CONGW. CYNTHIA VILLAR)
HON. CONGW. CYNTHIA A. VILLAR
(speech)
ATTY. MERCADER
Maraming salamat po mahal naming Congresswoman. May I now invite the co-sponsors to join in the awarding of this plaque of appreciation to her?
(AWARDING OF THE PLAQUE OF APPRECIATION TO CONGRESSWOMAN CYNTHIA A. VILLAR)
PRAYER BY ATTY. FUNK
BREAK FOR LUNCH
ATTY. VELASCO
(INTRODUCTION OF HON. ELIZABETH YU-GURAY)
HON. ELIZABETH YU-GURAY
(lecture)
ATTY. MERCADER
Palakpakan po natin uli si Judge Guray. Ngayon ko lang…kasi pag nasa trial very serious si Judge. Magaling pa lang mga jokes. Parang nababasa ko yung cited verse 253.
Okay, it’s now open forum. Investigative forces of Las Piñas City might have questions about the rights of the accused. Meron po ba? Yes, from the Mediation Center, Mr. Sy.
MR. SY
I’m just wondering what’s more important, the truth or the right of the violator?
HON. GURAY
In arriving at the truth, you have to respect the rights of the accused and balance your decision by recognizing the right of the accused vis-à-vis the rights of the State. But these rights are only presumptions which can be overcome by strong evidence against the accused just like conviction of the accused beyond reasonable doubt.
MR. SY
Just like, for example, yung mga wiretapping. If the suspect has been proven that he/she is the one talking on that telephone but it was wiretapped without his/her knowledge, that cannot be used in court although—
HON. GURAY
Violation of his right also. The wiretapping case? The “Hello Garci”? I don’t want to discuss that.
MR. SY
Anyway, I’m just wondering. To me, what’s important is the truth.
HON. GURAY
The truth is very important. It will come out during the hearing of the case.
MR. SY
Not the right of the law violator. Even if the information is extracted what you term is from the evil tree—
HON. GURAY
Not admissible in evidence. That will be discussed later by Judge Alvaro on law on evidence. Any other questions?
ATTY. MERCADER
Any other questions? Please identify yourself.
CAPT. ARTADES
Capt. Artades po, your Honor. About sa custodial investigation po, can we compel the suspect on the line up investigation?
HON. GURAY
Line up is not a violation of the right of the accused against self-incrimination. Because you do not ask questions to the accused and there is no compulsion. Testimonial compulsion is the one prohibited by law.
CAPT. ARTADES
Kasi meron pong lawyer na nagsabi na hindi pwedeng i-compel yung kanyang kliyente sa—
HON. GURAY
Line up? That is not a violation of his right. That is physical.
CAPT. ARTADES
Second lang, ma’am, is yung reaction namin sa Republic Act 7438 na pag yung imbestigador hindi nya nabigyan ng lawyer itong akusado, violator po sya ng 7438 na may pagkakulong at pina. Kaya po ang agam-agam namin sa Republic Act 7438, parang yung mga pulis po natin nakagapos ang kamay tuwing ipapakita po sa kanila itong 7438, yung under custodial investigation.
HON. GURAY
You mean there was no counsel assisting him? He must be assisted by counsel from the time the police invites the accused, he is already under the custody of the police. He must be entitled to the right to counsel. It will also be discussed by Judge Villanueva about preliminary investigation.
ATTY. MERCADER
Any other questions from the other units? Thank you very much. Palakpakan po natin uli si Judge Guray. May we request again the LPBA officers and Judge Vibandor to award the plaque and certificate?
(AWARDING OF PLAQUE AND CERTIFICATE TO HON. ELIZABETH YU-GURAY)
ATTY. VELASCO
(INTRODUCTION OF HON. RAUL B. VILLANUEVA)
HON. RAUL B. VILLANUEVA
(lecture)
ATTY. MERCADER
Thank you very much Judge Villanueva. The floor is now open for questions. Any questions from the police officers? From the prosecutors we still have Fiscal Cativo, Fiscal Montesa—Fiscal Santiago is here. You have any question Fiscal for the Honorable Raul Villanueva?
PROS. SANTIAGO
Judge, gusto ko lang hingin ang opinion mo. Under Executive Order 272 issued then by former President Aquino, the period of detention of an accused has been raised to 12, 18 and 36. Now, there has been some nagging question regarding the period of detention for these terrorists? Don’t you think it would be more expedient for the President to just issue an Executive Order increasing the period of detention for these bombers?
HON. VILLANUEVA
Sasagutin ko?
PROS. SANTIAGO
Yes, sir.
HON. VILLANUEVA
Si Fiscal Santiago, matagal ko ng kaibigan yan kaya totoo yung sinasabi kong kaibigan ko yan. We were together nung we were still with Secretary Barbers. We were working together. He was the lead prosecutor of the PARAK at that time. Now, in answer to your question—kaya ko sinabi yun—in answer to your question, insofar as increasing it, unang-una, diniscuss ni Judge Guray, may presumption kasi tayo of innocence. Di natin masabi na pagka ang isang tao, bomber or whatever, we should increase the period of detention. That’s why Executive Order No. 272 is couched in general terms. It talks of 1) when the penalty to be imposed is a light penalty, it should be twelve (12) hours; 2) when the penalty to be imposed is correctional, it should be eighteen (18); and, 3) when the penalty to be imposed is capital in nature then it is thirty-six (36). It does not speak of whether or not it is a bomber or whatever because otherwise that would be contrary to the presumption of innocence, among others, of the accused like that. So, to my mind—although I agree—instead of just directing it to the bomber, what needs to be done, if there is an intention to hold a suspected bomber, whatever is to increase it across the board ika nga, without specifying that it would only involve the bombers. Because otherwise, class legislation ang gagawin mo dyan. Kahit under executive order, that will not pass scrutiny when it is brought to the Supreme Court. So, ayun. Thank you.
ATTY. MERCADER
One last question if there is. Yes, Atty. Funk.
ATTY. FUNK
Judge, napapansin ko yung ibang Fiscal magpapadala ng subpoena para bang di nila binabasa yung affidavit ng complainant dahil pinagbabawal ika ninyo to file a Motion to Dismiss, hindi ba? Pero pag babasahin ninyo yung affidavit, talaga namang walang kaso. Halimbawa, puro hearsay. Isa na yun. Pangalawa, yun bang—nakalimutan ko tuloy yung pangalawa. . . Di bale, yun munang una, baka maalala ko yung isa. Papano Judge ang gagawin dun?
HON. VILLANUEVA
Kasi nga, unfortunately, the conduct of a preliminary investigation, regular ano, is vested in the prosecutor. So, they will be the ones to determine probable cause. Even assuming—and you’re completely convinced with your case, even if they find probable cause there, in all likelihood, the court might have it dismissed. My point is this--I’m not saying that you’re helpless—but your best alternative really is to be able to show that there is really no probable cause because they will be the ones to determine that. So, even if they commit a mistake, if there’s an administrative lapse, that is a different matter all together because to my mind, if they are not doing their homework, you can subject them to administrative sanctions. Of course, I am not recommending that kasi kaibigan natin ang lahat ang mga—
ATTY. FUNK
Pero Judge ang rule, they’re supposed to go over this document and find out if there’s really a cause for the opponent, or the accused, or the respondent, to file an answer. Isa pa po. Usually, nagfa-file sila ng subpoena di naman kalakip yung statement, yung affidavit pagkatapos ang dami-daming—di ka pwedeng humingi ng postponement, kailangan sagutin mo ito, mga ganun ba.
HON. VILLANUEVA
Actually ako, nagpractice din naman ako before becoming a judge. That is also an experience that I had. You can either look at it as an advantage or a disadvantage because the ten (10) days to file a counter-affidavit does not run until such time that you get the copies of all the documents. Second, actually ang reason lang dyan when I ask some prosecutors is lack of the resources to be able to photocopy all of these. Kasi kung minsan, kung may isang oras pa ako nasasabi ko sana sa inyo kung ilang copies nire-require nila. Yung copies kasi na nire-require minsan di nasusunod o kaya minsan kahit nasusunod, kung minsan nawawala along the way so imbes na maipadala nila sa inyo, eh nawawala so they just send the subpoena. But actually, the requirement in their manual is this, when you file, you file in terms of the number of copies the number of respondents, kasi para nga mabigyan lahat ng kopya and then four (4) additional copies for the file, etc. Yun ang talagang rule so there is no need to say na we lack the resources. Kaya nga lang siguro along the way nawawala and second, it later on became a practice. Of course, if you want to raise an issue regarding that one then the next time you ask me a question, you address it now to the prosecutor.
ATTY. MERCADER
May we allow Fiscal Santiago to say something?
PROS. SANTIAGO
Regarding the non-inclusion of the documents supposedly accompanying the subpoena, ang usual na reply sa amin kapag umaapir is wala silang nakita eh. So, nawala daw, natanggap lang ang subpoena and much more, pati ang subpoena di raw nila na-receive. So we’ve made it a policy now na if a respondent or a complainant will be required to appear so that there will be a joinder of issues muna.
You know, we will be supporting trouble if we immediately dismiss the case. Babanatan kami ng pre-judging the case eh. Dinadala kami sa Ombudsman. Wala ka pa—nabasa mo lang dinismis mo na for lack of merit. How do you know? Di pa sumasagot ang kalaban namin. For that, I wish to inform the body that na-charge ako ng intellectual dishonesty. Just imagine, hindi na kasali sa—dinemenda ako, intellectual dishonesty for not acting on a document. So, with due respect to the members of the bar, ganun na lang po. Di na muna namin sasamahan ng accompanying documents and it would be more for the interest of justice na yung parties paapirin namin rather an outright dismissal of the case for lack of merit. Siguradong babanatan din kami. Meron din yun. Ano pa bang isang ni-raise na question? Yung una?
ATTY. MERCADER
Yun lamang po. Anyway, if you have any other questions, let’s push this over to the dialogue part. We still have a dialogue part. In the meantime, we have MCLE compartmentalization. So, palakpakan po natin si Judge Villanueva muna and if you have questions and reactions, let’s go over this again during the dialogue.
May I request our Executive Judge and Attys. Laserna and Velasco to award the plaque and certificate?
(AWARDING OF PLAQUE OF APPRECIATION AND CERTIFICATE OF APPEARANCE TO HON. RAUL B. VILLANUEVA)
ATTY. VELASCO
(INTRODUCTION OF HON. ERLINDA N. ALVARO)
HON. ERLINDA N. ALVARO
(lecture)
ATTY. MERCADER
Thank you very much, Judge Erlinda Alvaro. So, if there are questions, we have ten (10) minutes left for as many questions that are within that time or less. From the officers, from the gentlemen in uniform, do we hear any questions? From the Prosecutor’s Office? Yes, Atty. Panfi.
ATTY. ENCARNACION
Judge, with the advent of modern technology, recent cases have arose regarding the admissibility of faxed documents. An actual case is say, a faxed document sent to Australia and used by an Australian citizen to accuse a local of Estafa. Now, the judge of an RTC ruled that faxed documents are admissible. I, of course, do not agree because faxed documents, to my mind, is just a xerox copy sent remotely. What is your opinion or experience with respect to faxed documents?
HON. ALVARO
Experience, none. I mean, which has been used as evidence in my court, none. As an opinion, it seems that you appeal the case.
ATTY. ENCARNACION
Fortunately, the case was ruled in my favor on other grounds but I objected vehemently on the admissibility of faxed documents but it was ruled to be admissible by the court.
HON. ALVARO
The trial court ruled that it is admissible?
ATTY. ENCARNACION
That is correct, your Honor.
HON. ALVARO
Now, of course, that has not been established yet. There is no case on electronic evidence, although electronic evidence has now been made applicable by a recent Supreme Court circular to criminal cases, this rule has not been applied yet in criminal cases so far as I know. What I mean is, there is yet no case wherein the court held these electronic evidence was admissible or not.
ATTY. ENCARNACION
Thank you, Judge.
HON. ALVARO
I wanted to include, this electronic evidence, however, was applied in Luis versus an employee of the Court of Appeals wherein the text messages were admitted in evidence. However, the Supreme Court said in that case the strict rules on evidence were not applicable because it was an administrative case so the application of electronic evidence, although the court has said it may be applied in criminal cases, has not really been tested yet by any case before the Supreme Court. Thank you.
ATTY. MERCADER
Anymore questions from the audience and the participants? There being none, I call on again our Executive Judge and Attys. Laserna and Velasco to award this plaque of appreciation.
(AWARDING OF THE PLAQUE OF APPRECIATION AND CERTIFICATE OF PARTICIPATION TO HON. ERLINDA N. ALVARO)
ATTY. MERCADER
We’re about to be finished but at this point, the MCLE program is over. The accreditation is only up to the lecture part of the last speaker, Judge Alvaro. So, where are the MCLE monitors?
(ANNOUNCEMENT AS TO THE MCLE CERTIFICATES, ETC.)
OPEN FORUM/DIALOGUE
COL. SINDICO
I am not prepared but anyway, I have two questions to ask. One, based on Section 50 of 6975, officers of the PNP by the rank of inspectors are allowed to administer oath. But currently here in Las Piñas, only the prosecutors are allowed to administer oath. We need, I think we should allow, based on that law, our officers because it gives us—you know we lack men. Kung panggabi yung arresting officer natin, they have to wait the following afternoon para maka-take off, para ma-administer ang oath nya so pag gabi, pag duty na sya, di na sya maka-duty. So that compounds our shortage of personnel.
Another, usually yung—our objectives, we have a common objective, to reduce cases. So, kung di matuloy ang kaso, mas maganda. But there are cases katulad ng snatching, usually pagna-retrieve na nung victim yung property, for example yung cellphone nya, hindi na sya mag-complain. So out of ten, for example, cases na natanggap namin, huli yung tao, siguro baka isa lang ang natutuluyan. So this encourages more theft. Sana kung pwede, through an affidavit of undertaking, mapwersa natin ang complainant na hindi namin bibitawan ang cellphone unless mag-file sya ng kaso. Hindi pwede? Sorry na lang ang mabiktima ng next snatcher.
PROS. SANTIAGO
May I respond, Colonel? With respect to the first query regarding administering oath, as a matter of fact, you see, we are now allowing. The only problem is cases being filed in our office, all inquest is being referred to by an emergency employee. There are matters that would be inquired of by the inquest prosecutor. Eh, dito sa Las Piñas, ang nagdadala lang ay si Cesar. Hindi sya makasagot. So, we prefer that the inquest papers be presented by the investigator himself or any responsible police officer for that matter. At saka yun namang maga-administer ng oath, indicate nyo yung pangalan dun kung ano sya. Eh basta pipirma lang sya dun pagdating sa husgado di namin malaman kung sino yung nag-administer. Basta lang may pirma. With that, palagay ko magkakaayos tayo nyan because that has been also the policy in Manila, as mentioned by Judge Alvaro.
With respect to the electronic gadgets, Colonel, alam natin na pag hindi natin ginamit yan, magde-deteriorate kaagad yan. So, we mostly rely on the pictures replacing the object evidence themselves. Now, it’s for the judge, yung ginagawa namin kay Judge Guray noon, if the complainant will not be appearing, iniisyuhan namin ng warrant. So yung complainant himself/herself ang may warrant.
CAPT. SINDICO
Minsan, sir, sa level pa lang ng mga pulis hindi na sya mag-file eh. So sana, gusto sana namin Fiscal na lang ang mag-release with an affidavit of undertaking so the complainant will be forced to appear. Sa level namin, pag alam namin na hindi na sya mag-file, wala na kaming magawa. So sana, ang suggestion namin, sa level namin, we’ll do everything para ma-force sya na mag-file ng kaso and dun na lang sa Fiscal ano—
PROS. SANTIAGO
Yeah, that would be more prudent. As a matter of policy again, Colonel, if a person has been presented for us for inquest, even if there be an affidavit of desistance accompanying the documents, we will not be dismissing the case outright. We will be merely recommending that the case will undergo preliminary investigation but we recommend the release of the suspect. Baka nagbabago pa yung complainant eh. Minsan nagkakaaregluhan, di naman pala nabibigay yung pinagusapan. So, babalik sa amin “Fiscal, natanggap nyo ba yung ganito?” Fiscal pa yung natanong kung natanggap yung pera eh. So, yun ang policy namin.
And moreover, Col. Sindico, to my mind, that was the time of then Sen. Lim when he was still Mayor of Manila, every case that was referred to the police and the person has been subjected to formal investigation, hindi pinawawalan ng police yan. Nirerefer sa Fiscal’s Office yan and it will be the inquest prosecutor who will be directing the release of the suspect. Dito yata, tama yung sabi mo, sa inyo pa lang level nakakawala na.
COL. SINDICO
Hindi na sya mag-complain.
PROS. SANTIAGO
Kung meron syang complaint, i-refer nyo sa amin. Ah, walang complaint?
COL. SINDICO
Hindi na sya mag-complain kasi dun pa lang natanggap nya na yung cellphone.
PROS. SANTIAGO
Well, we cannot do anything kung ayaw mag-complain.
COL. SINDICO
So sana—kung ako lang sana, i-hold namin yun, hindi namin i-release yung cellphone. Para he will be forced to file the case. Then bahala na fiscal dun.
PROS. SANTIAGO
Yes, please refer the matter to us.
COL. SINDICO
Last siguro ito. May fee ang mag-file ng kaso. Okay lang sa complainant siguro kung complainant mismo. But there are cases, for example, robbery sa jeepney. Marami ang testigo/witnesses. Pati witnesses sinisingil ng fee, hindi na sila mag-witness. Wala na tayong kaso. Siguro complainant na lang ang i-require mabayad ng fee. Huwag na lang yung witnesses.
PROS. SANTIAGO
We do understand the predicament of the complainant and the witnesses. As a matter of fact, during the time that it was taken with the DOJ, raising your question, why cases being referred to us for inquest, would be required to pay the corresponding filing fee. Reckless imprudence na nga eh with serious physical injuries. Naka-crutches na nga yung victim, pagbabayarin pa. Baka kami ang banatan nung ano. If that was not complied earlier, sinusulatan namin ang complaining witness. Moreover, nanumpa sila, magbabayad ng P50 sa Fiscal. May resibo naman yun. Kaya lumilitaw ngayon, the Fiscal’s Office is the biggest law office in the Philippines. Pag nanumpa ka, bayad ka eh. Mag-file ka ng desistance, bayad ka uli. Well, ladies and gentlemen that corresponds to the time that was given by the prosecutors to that case plus the materials used. Alam nyo ang mahal na ngayon ng papel at yung ribbon ng aming computer eh. Kaya mag-file ka, mag-dismiss ka, tama ka sa Fiscal ngayon. Bayad ka. We cannot do otherwise. May batas dyan eh. Perhaps the Integrated Bar of the Philippines can question that policy of the DOJ.
MAJOR SAMARITA (WOMEN’S DESK)
Sir, ito po ay tungkol sa mga economically disadvantaged victims of violence usually, sir, mga rape cases na for inquest po ito. Now, karamihan po ng mga complainants ay walang pambayad. Since it is an inquest case, usually po, kami mismo, ang imbestigador at ako, kami mismo ang nagbabayad ng filing fee, nuong pang-xerox po ng mga documents at saka yung transportation po ng victim to Camp Crame for the medico-legal examination. Pwera po duon, kami pa po ang nagpapakain dun sa opisina namin kasi nandun po, under custody namin. Ano po ba ang maitutulong niyo sa amin tungkol dyan?
Another thing po, marami po sa amin ang nafafaylan ng kaso, harassment cases in connection with our job. Paano po kami mabibigyan naman nyo ng legal assistance? Sa ngayon po, meron po akong isang kaso pending sa NAPOLCOM although malapit na po for resolution. Na-dismiss na po yung sa Ombudsman, yung criminal case. But then po, malaking drain sa pocket ko kasi every hearing nagbabayad ako ng P2,000 and isa pa po yung 2000 ko, hanggang ngayon, puputi na yung buhok ko, hindi pa tapos yung kaso, wala pa pong naibibigay na tulong. Yun lang po.
PROS. SANTIAGO
With respect to your last problem of Major Samarita here, perhaps the Las Piñas Bar Association can give her the necessary assistance. Yung kanya service-connected eh. Sadly enough, walang legal na maibibigay ang PNP.
First question, with respect to the filing fee of rape cases, this problem was brought earlier by Major Samarita the other week, together with the DSWD. Now, we have to present this problem to the National Prosecution Service. We will be having our seminar also on continuing legal education and then we can thresh out this problem with Chief Zunio. Yung level namin, hindi kami maka-decide eh.
Now, we do understand the predicament of Major Samarita. Ngayon, dun sa pagpapakain ng mga victims na walang magpapakain, I cannot give any solution to that matter.
HON. VIBANDOR
May I suggest that for complaints involving indigent litigants, especially for rape cases, for purposes of preliminary investigation, we adopt the same rule as in the filing of civil cases in courts. Now, perhaps we can file a motion before the Office of the City Prosecutor to litigate as a pauper litigant and all they have to do is submit proof of no income. I think that’s reasonable enough and you know, if we will still charge the indigents filing fees, parang lumalabas dito na we are preventing them from enforcing their rights to invoke the courts of justice.
PROS. SANTIAGO
With due respect to the statement of Judge Vibandor, I think that it was included in the law itself. However, ang daming requirements na dapat hanapin eh. Nahuli na yung tao, wala pang compliance yung complainant. Meron kang hihingin na certification sa DSWD, indigent ka, wala kang properties, so forth and so on. Now, when we were discussing this with Chief Zunio sa DOJ, he was really surprised that we will be demanding filing fees for inquest cases because practically it is filed by the police officer concerned. But the matter is again questioned and that has not been answered. Wala po kaming naging katiyakan eh because we then presented the view that it is for the benefit of the respondent, of the suspect, if the complainant will not file the filing fee and we will not be entertaining the case. Kaya nga nagi-inquest eh. Pero ire-raise pa rin namin ito Col. Sandico and Major Samarita.
MAJOR SAMARITA
Sir, yung legal assistance na sinasabi ko, it’s not for myself. It’s for the other members of the PNP na parehas ng plight ko. Sa akin po, walang problema yun although it’s service-connected. Kaya ko pa naman po. Doon po sa iba na may problema po.
PROS. SANTIAGO
Sa ibang uniform? During the time that I was Fiscal of Manila, Gen. Peña used to appear for and in behalf of his police officer. Si Gen. Peña naga-appear nun. But he’s no longer here. Nawala na sya. Namatay na sya eh but he was one officer na humaharap sa amin. I don’t know if the PNP can render assistance in cases like these. In Manila, yung aking tukayo na si, ngayon ay fiscal na, Jimmy Santiago, nag-create sya ng law office na Legal Assistance for Manila Policemen. And nagsawa na rin yata sya, nag-fiscal na lang. Dalawa na kami ngayong Jimmy Santiago. Incidentally, baka marinig nyo ang Jimmy Santiago, sya ang Jimmy Santiago western, ako Jimmy Santiago southern.
MR. SY
Meron din akong gustong i-raise na question dito. As mediator, na-encounter namin yung mga parties na pinapadala sa amin na minsan nakaposas. There are instances na, dalawa ito eh. Yung isa na nakaposas, walang pampyansa so nag-enter into a compromise agreement so in that case tapos na yung kaso. So, napirmahan yung compromise agreement, nai-submit na sa court and yet, yung accused nasa loob pa rin ng jail. Di pa rin nakakalabas. Secondly, meron pang isang incident, not here in Las Piñas, na ang penalty lang nung tao dapat makukulong sya ng not more than six (6) months pero one (1) year ng nakakulong hindi pa rin pinapalabas. So, ang advice ng PAO lawyer, “sige, aminin mo na lang then pag inamin mo yan, na-serve mo na yung sentence mo. Tapos na yung kaso.” So, papaano ba ma-address natin yang mga ganung instances para hindi naman naaagrabyado yung ibang mga accused na nasa jail?
HON. ALVARO
I will answer your first question, yung may compromise agreement. There has been a compromise agreement and yet the court has not yet released the accused. Because the compromise agreement only refers to the civil aspect of the case. The criminal aspect which is, as you’ve noticed the caption of the case is “People versus”. So yung witness na nakipag-compromise, well that is only the civil aspect. Perhaps the court is still hearing the criminal aspect of the case. So normally, in the case when the witness is no longer interested and the court has set the presentation of prosecution’s evidence and the witness no longer appears, maybe for two or three times, it seems that he’s no longer interested in the prosecution of the criminal aspect of the case, the prosecution cannot anymore prove beyond reasonable doubt the case of the Government without the cooperation of the private complainant or the witness. So that is the time when the court will dismiss. But just upon compromise agreement, the court cannot directly or immediately dismiss the case kasi meron pang criminal aspect.
MR. SY
Kasi ang sitwasyon, yung nakakulong dapat magbayad sya sa dun sa nagdemanda over a one (1)-year period. So, hangga’t nakakulong sya, hindi sya makakapagtrabaho and therefore hindi nya mababayaran yung ano—therefore, hindi mage-execute ng affidavit of desistance yung nagdemanda.
HON. VIBANDOR
You know, there are situations wherein the court can refer the case to the mediation center. But you know, like what Justice Velasco said this morning, there are also other cases, although they are not mediatable, some courts refer it for mediation. And what is the purpose? The purpose is simply for the possible settlement of the civil aspect of the case. Now, there are also situations like what Mr. Sy has just mentioned where the parties, they entered into a compromise agreement on a term. Let’s say on installment, let us say for one year. Now, if the parties really agreed to settle the civil aspect, we are expecting them to, after they have agreed, to dismiss the case. Now, how do we dismiss the case? Perhaps the private complainant can execute an affidavit of desistance and this affidavit of desistance can be the basis for a motion to dismiss filed by the accused and this motion to dismiss will be set for hearing by the court.
You know, minsan ang nangyayari, meron mga parties kasi, like the private complainant gagawa sya ng affidavit of desistance, sisingilin pa sya ng fiscal, meron pang fee, and then the accused will file a motion to dismiss, sisingilin pa rin ng fiscal. So double taga. So, in my court, what I do, I just instruct my PAO lawyer, instead of filing a motion to dismiss, if the parties are really agreed to settle the case out of court, we will just set the case for three consecutive dates and we will let the private complainant sign the records. And then I will issue an order that in the event the private complainant will not appear in the succeeding trial dates, and this is a warning, this court will entertain a provisional dismissal. So meron nang usapan. So yung tatlong hearing dates na yun and the private complainant is duly notified, then at the last date of the hearing, yung aking PAO lawyer will be very quick to invoke the right of the accused to speedy trial and once the public attorney invokes that right of the accused, wala ng magagawa ang fiscal dito because that is a different matter. We are now invoking the right of the accused to a speedy trial. So, normally, because the prosecution cannot do anything, he will just agree to a provisional dismissal. You know, a provisional dismissal, that is a dismissal without prejudice and aside from that, to protect my public prosecutor, I even ask the accused if he is willing to sign an express waiver to double jeopardy and that is on record. So, lahat dito ay masaya. Masaya ang complainant, masaya ang accused, masaya ang PAO lawyer at makakatulog ng mahimbing yung fiscal kasi hindi sya pwedeng sisihin dito. I think that answers the question.
MR. SERZO
Speaking for our office, the Las Piñas City Parole and Probation Office have submitted a report. It’s quite lengthy. I believe that each and everyone concerned has a copy of this report. Any issues you would like to bring out with respect to the operation of the Las Piñas City Probation and Parole Office, we are quite willing to bring up.
ATTY. VELASO
Anyone who would like to ask a question from the representative of the parole office?
MR. SY
Gusto ko lang itanong kung talagang makakatulong ba ang probation sa tao. Kasi meron akong na-handle sa mediation na dinemanda yung husband for attempted parricide so nung ini-explore ko kung ano yung pwedeng terms of agreement nila, walang pinre-present yung babae, yung nagdemanda, yung wife. Ngayon, nung sinabi ko sa wife, “eh kung ang interes mo talaga eh ipakulong yan, maga-avail lang yan ng probation. Hindi rin yan makukulong.” Umiyak yung babae ngayon sa harap ko. What kind of justice do we have here? Ano ang protection bale ng nagdemanda? So sabi ko, “sige i-reset natin ito the following day. Pag-isipan mo.” Then the following day, ang saya-saya na nung babae. Ang sabi, “O sige. Mas maganda pa nga mag-avail na lang sya ng probation. Anyway siguro magbabago naman sya eh. So why don’t we give him a chance to reform.” Pero nung pinag-uusap ko silang mag-asawa, very aggressive na naman yung babae and very unforgiving. Parang galit na galit na naman sya sa lalaki, contrary dun sa sinabi nya sa aking “siguro magbabago naman sya.” And then sinabi nya na “Sige, mas maigi pa siguro na mag-avail na lang sya ng probation.” But I think there is a hidden agenda on the part of the wife. Dahil when you are out on probation, pwede kang gawan ng istorya maski naman hindi totoo then you are going to serve the full term of the offense. Yun ang nakikita kong disadvantage maybe sa pag-avail ng probation. So, any comment?
MR. SERZO
First of all, you must know that the Adult Probation Law of the Philippines is a social legislation. The primary purpose of which is the rehabilitation or reformation of a penitent offender. Of course there are advantages and disadvantages. But I think the very reason why the then President Ferdinand E. Marcos signed this into law, he thought that it is a great help to the offenders concerned. If it will turn out that after one convicted person has been placed on probation and his probation has been terminated but he go again to his previous activities, eh wala na tayong magawa dun because we are just implementing what the Probation Law provides. For example, an offender is legally qualified to avail of the same, we cannot do otherwise but to recommend to the court for the grant of his petition. Kung masama ang hinatnan sa huli, after his probation has been terminated, it is already beyond our control.
If for example the case involved carries with it payment of civil liability in favor of the offended party, the probation office may be of help by having a scheme of payment in order to meet his pecuniary obligation on the part of the offended party. Maaring may civil liability, bayaran ng offender while under probation if he has the capacity. But if he has none, we cannot force him to do so. Yun ang nakikita kong advantage. At least we have afforded a convicted person, a first time offender for that matter, a chance to reform or he be given a second chance in life.
ATTY. VELASCO
Okay, you have a follow up question?
MR. SY
Siguro kay Honorable Judge Vibandor. Anyway, this is regarding probation. Kasi yung ibang mga parties, just to get free from chair, ang ginagawa nila, they will just accept the guilt. To be released from chair, they will just accept the guilt and then avail of probation. Yun ang ginagawa nilang parang shortcut. Instead na mahabang trial, wala silang pampyansa, they stay longer in jail. So, ang danger nga is suppose, na-grant sila ng probation and then ginawan uli sila ng kaso, would there be another hearing or directly pasok agad sila sa kulungan without any trial anymore?
HON. VIBANDOR
In answer to your question, the accused here was granted probation and during the time of his probation, he committed an offense. When he committed an offense, he violated the terms and conditions of his probation and that is sufficient for the court to cancel or to revoke his probation and if he will not appear, the court will issue a warrant of arrest for the execution of his sentence. Once the court receives a report from the Probation Office, that the probationer has violated the terms of his probation that will be set for hearing and the court cannot just simply revoke the probation without conducting a hearing. He is entitled to due process.
MR. SERZO
May I add? With all due respect to what Judge Vibandor just said, if the ground upon which the revocation is relied upon is an alleged violation, or alleged commission of another offense while the probationer is still undergoing probation, that particular probationer is still entitled to the constitutional right to presumption of innocence. That’s why, there should be a hearing. Mere commission, to my mind although this is already an interpretation of the law which I don’t have any right to do so, the word commission used under that Probation Law should not be interpreted literally but rather as a process. Because not until the person has been tried and adjudged guilty, can we say that he committed the offense. What if from the mere complaint, fabricated or otherwise, of a particular person who has a grudge on a particular probationer, would be entertained by the authorities concerned or if by the mere filing of the information would be made as a ground for revocation of his probation, what if at the end of the trial, this particular probationer would be adjudged innocent? We can just imagine the degree of injustice we will be doing against this particular probationer because in that particular case, the ground upon which we relied our revocation is no longer obtained. That is only my opinion.
COL. ANGAN
Sir, I would like to also express my concern with regards to the grant of probation. As far as I know, the judge handling the request for probation of a particular suspect refers the matter, or gets an input from the barangay captain. This is used as one of the basis for the grant of probation. But I think sometimes there is leniency on the part of the barangay official, especially if the subject of the probation is a voter of the said barangay and a lot of cases, I think, and a lot of instances, suspects who should not be granted probation are granted probation. That’s why there are also a lot of cases wherein people out on probation commit an additional crime.
MR. SERZO
The information given by any person for this matter, not only from the barangay captain, is not the only basis for the grant or denial of probation. There are many sources for our office to consider in so recommending the grant or denial of probation. That is only one source. There are still other informants. There are still other documentary proof which will show or will establish the fact that he is a first time offender which is very much important in our recommendation. That is only a portion, a part of the information, the statement or certification issued by the barangay captain.
ATTY. VELASCO
Any other questions? I would like to ask Col. Angan if there is any problem with your investigators and the PAO Office because I noticed that during the investigations, it has always been the question of the accused that they have not been provided with a lawyer. So, is there any problem, or no communication at all with the PAO Office, so that the availability of the PAO lawyer would always be there during the investigation?
COL. ANGAN
Yes, ma’am. The reason why I brought a number of people here, especially the investigators—I want them to participate. So, I want the Chief of Warrant, Chief of Investigation, to participate, and also the other investigators to the question posed.
ATTY. VELASCO
We want to know if you have any problems with them so we can address and we can help, the Las Piñas City Bar Association can help in what ever capacity because we also have the free legal aide so if you want to avail of the services of lawyers then you can try to contact. So that if there’s really a good case, the accused will really be convicted. But what happens is there’s always that problem, the investigator will say the accused has been informed of the right to secure the services of counsel unfortunately, during the oral testimony, or even as appearing in the records, they really were not given counsel. Even not of their choice but from the PAO Office. So may we hear from the investigators?
PROS. SANTIAGO
Under Republic Act 7438, the police officer is mandated to provide counsel for the accused. Sadly enough, the presence of any lawyer for the accused is somehow a deterrent in the process of investigation. 101% the suspect will not give any statement upon advice of counsel so nakakadelay lang. Moreover, the police officer will have a hard time explaining to the court regarding the Miranda rights. Ang daming tatanungin ng defense counsel dyan. So, prudence dictates now, hindi na sila magtatanong sa accused. Ire-refer na lang sa inquest prosecutor passing through the office of the PAO. Ang unang gagawin naman ng PAO dun “refused to sign waiver”. Tapos, ipapadala sa amin. Yun ang experience namin.
ATTY. MERCADER
That does not cure the problem of lack of counsel. The point is relative to custodial investigation.
PROS. SANTIAGO
There was no custodial investigation made. There was apprehension but no investigation was done with regard to the suspect.
ATTY. MERCADER
But the point is very important, relative to custodial investigation.
PROS. SANTIAGO
He was appraised under police custody but there was no formal interrogation done on from the suspect. I am sorry I am answering for the investigators.
ATTY. VELASCO
Anyway, we would like to hear from them also.
INSPECTOR TORRE
Ma’am, I am Inspector Torre, the Chief CID of Las Piñas. The encounter that we have with the PAO is during night. During morning, wala tayong problema po kasi meron tayong PAO lawyer. Pagkagabi po, especially pag Friday po then Saturday iinkwestan, dadalhin namin sa fiscalia. Hindi na namin dinadaan sa PAO kasi wala po tayong PAO lawyer. Then pagdating sa trial, tinatanong kung bakit hindi dinaan sa PAO. Di sinasagot namin, “wala po kaming duty na PAO eh.” Yun po ang problema namin, ma’am.
ATTY. VELASCO
Ganun ba? I guess we can’t do anything about this because wala ding LPB at that time. Palagi ba kayong nanghuhuli ng Biyernes? Baka pwedeng you can do away with Friday? Hinuhuli nyo yata ng Friday para hindi makapag—is it bad faith or what? Please answer.
PO3 ABRAHAM
I am PO3 Abram, ma’am. I’m also an investigator of the Las Piñas. Our experience, the commission of the crime, especially crimes against persons, it is not on the daytime. It is after working days, especially at night. So even if we invoke the constitutional right of the suspect, we cannot avail the services of the PAO lawyer because they are not in the nighttime. Even in the morning, we consult the counsel for the accused, the PAO himself recommends the dismissal of the case since it is under the summary proceedings, especially if the imposable penalty is less six (6) years. They want to file it regularly.
ATTY. MERCADER
Hindi ba pwede na yung PAO Office eh i-require din na magkameron ng skeletal force at night and during weekends? The judges and the prosecutors are required to so provide. Why not the PAO given the mandatory right to counsel on custodial investigations? That’s the problem, diba? Maybe the person serving at night can already—that can be counted as a day for an equivalent day off. I mean, the night service may be considered as one day of service. The same way is done with the OCP and with the judges. It is a matter, I think, of providing a PAO lawyer to assist an accused during custodial investigation so the rights are not violated for unavailability of the PAO.
PROS. SANTIAGO
Regarding that incident, ang aming duty for inquest is from Monday to Friday up to 4:30 pm lang. Nighttime wala kami for lack of personnel to attend to the needs of the inquest prosecutor. We have also a duty inquest prosecutor on Saturday and Sunday. Nandun yan. On call sila, yung mga prosecutors na nakatira sa Las Piñas. Now, regarding the predicament of police investigators, they usual file the inquest cases during daytime. Wala naman kasi kaming inquest prosecutor sa gabi. Not like in Manila, na it’s a 24-hour basis. Sa amin hanggang 4:30 lang.
ATTY. MERCADER
Anyway pwede pa naman yun. Kung nangyari ng gabi, wala pang twelve (12) hours yun kahit yung light offenses so it can stay until the next working day.
PROS. SANTIAGO
Not later than 10:00 o’clock in the morning.
ATTY. MERCADER
Yes, as long as the prosecutors—but the bone of contention here is somebody to assist the accused, not to prosecute, but somebody to assist the accused in custodial investigation and the PAO is not available. So, my proposal, Fiscal, as a result of this proceedings, maybe we can make representations for the PAO officialdom to adopt what is happening in the courts and in the Prosecutor’s Office where as a matter of personnel rotation, they can designate, also on weekends, PAO to assist accused being apprehended, during weekends and maybe even at night.
PROS. SANTIAGO
Yes, Saturday and Sunday we have also duty inquest.
ATTY. MERCADER
So, maybe the PAO can do the same. May we make it of record and with the assistance of the Executive Judge, and likewise by the Chief of the Police, request for the PAO to so designate PAO lawyer to also be on duty on weekends and at nights—as part of this proceedings. Yes, Judge?
HON. VIBANDOR
And if the Public Attorney’s Office will say that they are undermanned, perhaps, once again, we invoke the Las Piñas Bar Association to assist us. You know in Pasay—
ATTY. VELASCO
I think we have somehow unloaded the caseload of the PAO because we have been appearing in various courts already. So maybe they can attend to this request of the police so they can attend. I think they are being paid for whatever excess—
HON. VIBANDOR
Mukhang kulang pa rin sila. Undermanned pa rin sila ngayon. I remember why Atty. Garcia left this afternoon. According to him, there was an instruction for him, coming from the DOJ, directly from Malacañan, from GMA, for him to submit list of youthful offenders in Las Piñas. So that’s the reason why he left this afternoon.
Doon sa Pasay, if I may go back to that, meron kaming night inquest duty Fiscal. Meron ding counterpart PAO lawyer duty inquest in Pasay. Now, perhaps we can do the same.
ATTY. MERCADER
We are capturing the minutes of this proceedings and that should be part of the consensus and there will be a brief integration after this and we can submit this to the highest officer of the PAO.
HON. VIBANDOR
Isa na lang. Meron yatang problema yung kaninang nagtanong. Yung custodial investigation kasi, it is not required that upon the apprehension of the suspect, you should immediately conduct a custodial investigation. But you can just, you know, take him into custody for some period of time. But if you really want to conduct an investigation then that’s the time for the investigator to look for a lawyer to assist the suspect. Ngayon, kung hindi mo iimbestigahan yan, at ikaw hindi mo dapat imbestigahan yan without the assistance of counsel because any evidence, or any admission extracted from the suspect is inadmissible in evidence. So, mas mabuti pa wala munang custodial investigation. Pero ang sinasabi ko dito, kung hindi nyo maiwasan ang custodial investigation. Especially sabing ganun ng suspect, “Sir, gusto ko na hong aminin. Ako ho ang nang-rape.” Kailangan magkaroon tayo ng custodial investigation and there is a need for us to call for Atty. Landero. Anyway, he is always available, di ba?
You know, I understand maraming kaso si Atty. Landero puro pro bono. Alam mo yan, may kaso sa akin yan minsan hindi uma-attend. Hindi ko na sina-cite for contempt yan because I know it’s pro bono.
ATTY. MERCADER
Okay, are there more questions? This will benefit the dispensation of justice in this jurisdiction. We have to thank the gentlemen and ladies who generously shared their time with us for this dialogue. Hopefully we can repeat this. Hindi po sila madala. Until next time. Until next year. Wala na po ba? So, maraming salamat po sa inyong lahat.
And also, we would like to thank these gentlemen and ladies who shared their time with us. We now call on the Chairperson of the LPBA for the brief integration of what transpired today. Atty. Manuel Laserna, Jr.
ATTY. LASERNA
We will integrate very briefly the fundamental ideas gathered from the panelists and from the distinguished guests in this assembly. I think the intention of the Executive Judge as the Chairman of the Bench and Bar Advisory Board of Las Piñas City is to convene the various pillars of the various pillars of the criminal justice system one of these days—because we are already tired tonight—one of these days to more deeply conduct a diagnostic study and discussion of the various concerns and issues raised today. So that the appropriate reports or specific resolutions may be adopted by the Board for submission to the Supreme Court and the other appropriate and concerned government agencies and offices.
At any rate, for the record, the concerns expressed for the past one hour and a half in the panel, in effect a roundtable discussion, are the following:
First, one worry that bothers the mind of the police investigators is the proper interpretation and implementation of the phrase “probable cause” as against “personal knowledge” and how do you interpret these two crucial phrases in relation to the doctrine of immediacy in order to justify the validity of the arrest, the warrantless arrest. And another thing that is commonly used by the investigators in order to, in a way, justify the immediacy concept of their arrest is to invoke the doctrine of hot pursuit. But in their hearts, we noticed, they are also internally bothered somehow by the overuse of the doctrine of hot pursuit although it is legally allowed under existing jurisprudence.
No. 2, concerns were also raised as reflected in the reports submitted by some of the panelists with respect to the insufficiency and absence of the necessary equipment, vehicles, special allowances and funds, as well as further professional training programs in order to elevate the standards, the skills, competence and ethical performance of the police investigators handling specific tasks and maybe the Board should conduct further interviews and diagnostic studies on this matter and try to see how the local government unit could pitch in and financially subsidize some more of the scopes of the work. It is unfortunate that despite my personal invitation and series of letters to the Honorable Vice Mayor of Las Piñas City, Louis Bustamante, as well as the concerned councilors handling the relevant committees of the City council apropos the justice system, they were not able unfortunately to join us today. But perhaps when the Board convenes under the leadership of the Honorable Executive Judge, we will again attempt to invite the Vice Mayor as the Presiding Officer of the City Council and invoke his help, especially with respect to the financial subsidies that may further be required by the police department.
During the talk of the Honorable Court Administrator, Justice Velasco, he expressed concern about the necessary delays in the litigation of criminal cases, and even civil cases with more reason. He expressed the exploratory idea of suggesting to the Supreme Court Committee on the Amendment of the Rules of Court to study the feasibility of altogether eradicating the tactic of Motion to Quash an Information and I am sure this will be open to various attacks from either the bar or the general public.
The Honorable Court Administrator also expressed concern about the tactics of some lawyers, defense counsels, who abuse the concept of motions for reconsideration or investigation, or motion for PI’s, etc. while some lawyers, in the private talks with this representation, expressed their worry also that the sixty (60)-day suspension period allowed by Rule 115 to suspend a criminal case while a Petition for Review is pending with the Department of Justice is too short considering that the DOJ is not so fast in resolving appeals by way of Petition for Review.
Also, many concerns were raised and many panelists suggested that the bar should invoke the relevant provisions of the Rules of Criminal Procedure to require the uncooperative witnesses in criminal cases to post bail in order to command their presence during trial where their presence or testimonies are necessary. In fact, about three (3) years ago, or four (4) years ago, per a Memorandum of Agreement signed among the representatives of the Office of the Court Administrator, the Integrated Bar of the Philippines, as well as the Philippine Judicial Academy, it was agreed that lawyers should, among others, use that particular provision in the Rules of Court to require the witnesses to cooperate or even cause their arrest for lack of cooperation.
Next, we are glad that the mediators are present here today and their accomplishment report has been distributed to this august assembly and we noticed their performance rate is two out of three, which is very good. And I noticed, I was computing their statistics on an average monthly level, I noticed that they were disposing by way of settlement about 400 cases a month, which is a great unloading of the judicial docket and I think the lawyers should encourage further the use of court-referred mediation.
About two months ago, I issued a commendation letter addressed to the Court Administrator praising all the mediators of Las Piñas City because in one civil which I was handling and handled by one of their distinguished mediators, involving more than 5 Million civil suit, in a matter of three (3) hours, the parties settled because of the competent and professional intervention of the mediator, a lady mediator. Personally, I filed a motion in court, copy furnished the Supreme Court, praising all the mediators of Las Piñas City because this is the first time in my twenty (20) years of law practice that I’ve experienced settling a 5 Million civil case in less than three hours of discussion and we should encourage more mediation efforts.
Another concern raised by the distinguished Major handling the Women’s Desk again, when I was talking with her privately and also as part of her public discussion a while ago, were the matters of 1) funds. Sometimes she spends for the transportation of the victims, bringing them to PGH or to the crime lab for the necessary medical examination. Sometimes the police investigators, including herself, are exposed to harassment, criminal and civil suits, thereby raising the idea of forming—I think this should be started by the Las Piñas Bar and the IBP of Southern Metro Manila—of forming a special free legal aide unit, specifically intended to help the police force of Las Piñas City. I think we should study that.
Right now, the Las Piñas Bar is being praised by the Integrated Bar of the Philippines because we have assigned about one to three veteran trial lawyers per branch in Las Piñas City. In my case, I handle the former heinous crimes court of Judge Maceda. In case there is a conflict of interest by the PAO assigned there, I take over. I think we should create, and personally I would talk with the Integrated Bar of the Philippines Chapter President to help us create a special unit of volunteer trial lawyers, veteran trial lawyers, who will have nothing else to do but to help police officers exposed to harassment suits.
Another concern raised by the panelist, not only by the Honorable Executive Judge, but also by the mediator, Mr. Sy, was the matter of current filing fees being charged by the Department of Justice throughout the country, not only in Las Piñas City, where sometimes the fees serve as an obstacle to either the full settlement of the case by way of compromise and other things. The Executive Judge suggested that, if necessary, the lawyer should file a motion to treat the complainant as a pauper-litigant or indigent litigant, applying in effect also by analogy Rule 3 of the Rules of Civil Procedure on pauper litigant. Maybe the Advisory Board should study this. We conduct diagnostic studies and then file the necessary resolutions either with the DOJ or with the Supreme Court.
A catch-22 chicken and egg situation was raised by the Honorable Mediator, Mr. Sy, again involving compromises where detention prisoner is brought before him and a compromise is arrived at between the private complainant and the accused detention prisoner but there is delay in the dismissal of the case because of the required proceedings thereby disabling the opportunity and the ability of the detention prisoner to work an earnest money to pay the agreed amicable settlement amount. So, it’s a chicken and egg catch 22 situation, which comes first? But the opinions of the judges present here refer to the necessity to comply with the Rules of Court and maybe, they said, we can explore the tactic of provisional dismissal initially, without paying, escaping or evading the DOJ fees, and this is the tactic being used by the Honorable Executive Judge in cooperation, and in conspiracy, with his PAO lawyer. To set the criminal case successively for three (3) hearing dates and it is already understood sub silencio that, anyway the witness, the complainant will not appear there having been an agreed amicable settlement and therefore at the least a provisional dismissal may be proclaimed after the three successive dates where the witnesses absented themselves, which is also a good tactic. You save money and you also save the honor of the prosecutor and also the honor of the PAO.
There are many other things raised, and I noticed at the latter part of the panel discussion, a crucial suggestion was raised by the Vice Chairperson of the LPBA and the Auditor of the Integrated Bar of the Philippines, Atty. Mercader, where she strongly suggested that we exert friendly pressure on the national office of the Public Attorney’s Office to create a skeletal force of PAO lawyers within Las Piñas City in order to serve the custodial investigation needs of the police and also of the respondents or the detainees, in the same manner that the courts are required by the Supreme Court to establish their own skeletal forces in certain situations and cases.
The most senior public prosecutor in the city, the Honorable Jaime Santiago, stated that the Office of the City Prosecutor of Las Piñas City has no assigned inquest fiscal in the evenings from Monday to Friday but they work to about 5:30 in the afternoon. Also, the Honorable Jaime Santiago stated that on Saturdays and Sundays, they have on on-call basis certain fiscals as inquest fiscals, those who live in Las Piñas City. This is a concern maybe that can be further diagnosed by the Advisory Board in one of its future meetings.
In closing, the Integrated Bar, of which I am the Vice President for this district, and the Las Piñas Bar, for which I am Chairman, humbly offer to the justice system whatever pro bono legal services the veteran trial lawyers of Las Piñas City are able to offer Judge Vibandor.
This is the summary and we have our stenographer, who is taking down notes the whole day, and we will edit this and convert this into a bookbound-type of report for all the leaders of the pillars and extra copies for submission to the higher authorities.
Thank you very much, ladies and gentlemen. Yes, Atty. Encarnacion, the Chairman of the Bench and Bar Dialogue Committee.
ATTY. ENCARNACION
I must have missed or misinterpreted the lecture of Justice Presbitero Velasco but did I understand him correctly that they are entertaining the idea of eliminating the remedy of a motion for a Demurrer to Evidence. Now, I would like to have our LPBA to have a position on this. I don’t know how the bench in Las Piñas feel about this but I feel very strongly that this is a very important provision in our rules. May we request the Chairman to include that in today’s proceedings? Thank you.
ATTY. MERCADER
As the part of the culmination of today’s proceedings, is the appreciation for the AM and PM snacks sponsored by the Office of the City Mayor, our Honorable Mayor Imelda Aguilar, and we have prepared for her a plaque of appreciation, as well as a certificate of participation, the latter of course has been rendered moot because she did not come of course. But the LPBA will take care of presenting the plaque of appreciation because, in fact, the snacks came in for the morning and afternoon.
We would request at this point for the Vice President to do the closing prayer and remarks for a successful day behind us and we wish to thank everyone for having come. Atty. Melvyn Lagasca.
(ATTY. MELVYN LAGASCA LEADING THE CLOSING PRAYER)
ATTY. MERCADER
Maraming salamat. Maraming salamat po sa lahat. Ina-announce po natin na yung supposed meeting ng Las Piñas City Bench-Bar Advisory Board will have to be reset because of the long day schedule. So the Chairperson will notify the members of when the meeting will be. Di ba po, Judge? We will notify them as to the next meeting.
Maraming salamat po. Mabuhay ang Panginoon sa isang magandang araw. Sana’y kasiyahan kayo at makarating ng safe sa bawat inyong pupuntahan pati ng samin. Good day and God bless.
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CERTIFICATION
I certify to the correctness of the foregoing transcript to the best of my knowledge, ability and understanding.
LEAMOR B. GARCIA
Stenographer