Legal Procedures 05: Preliminary investigation

Notes: [1] Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[2] Inquest proceedings: If the person is arrested in the act of committing the crime (“flagrante delicto”), the fiscal conducts an inquest, not a preliminary investigation. Charges must be filed within 18, 24, 36 hours depending on the gravity of the crime as provided under Article 125 of the Revised Penal Code (Delay in the delivery of detained persons).

If no charges are filed within the prescribed period, the fiscal or the arresting police officers can be charged with violation of Article 125 RPC. If some people you know have been arrested by the police, make sure that they read and understand completely what they may be asked to sign. They might be signing a waiver of Article 125, in which case they can be detained beyond the prescribed periods.

[3] If a person has been charged before the fiscal’s office, he or she has the right to file a counter-charge. He or she must draft a complaint-affidavit, fill out an IS (Investigation Slip) form, indicating on it that it has a related case, the name of the fiscal handling the case, etc. The complaint will then be sent not to another fiscal but to the same fiscal handling the original charge. The investigating fiscal can choose what to believe, either the original charge filed or the counter-charge. He may also file both complaints in court.

[4] When following up a complaint with the fiscal’s office or the administrative office, you must know and remember the IS number. Once the complaint is filed in court, what you should take note of is no longer the IS number but the Criminal Case number.

[5] Not all criminal complaints are required to undergo preliminary investigation (Section 9, Rule 112).

[6] Previously, there were no filing fees when criminal complaints were filed with the fiscal’s office. Now, there are prescribed filing fees.

[7] The offended party can file his complaint with the police investigators. The police will then endorse his complaint and all the relevant records to the fiscal's office.

[8] Besides the fiscal, there are other officers authorized to conduct a preliminary investigation (Section 2, Rule 112).
Preliminary investigation (Rule 112, The Revised Rules of Criminal Procedure)

Section 1. Preliminary investigation defined; when required. – Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Except as provided in Section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a compliant or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.

Sec. 2. Officers authorized to conduct preliminary investigations. – The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts (repealed by A.M. No. 05-8-26-SC, Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure by Removing the Conduct of Preliminary Investigation from Judges of the First Level Court);
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions.

Sec. 3. Procedure.– The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Sec. 4. Resolution of investigating prosecutor and its review. – If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu propio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting anther preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

Sec. 5. Resolution of investigating judge and its review. – Within ten (10) days after the preliminary investigation, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action, together with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint.

Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties shall be furnished with copies thereof. They shall order the release of an accused who is detained if no probable cause is found against him.

Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

(b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall them proceed in the exercise of its original jurisdiction.

Sec. 7. When accused lawfully arrested without warrant. – When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.

Sec. 8. Records. – (a) Records supporting the information or complaint. – An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case.

(b) Record of preliminary investigation. – The record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party.

Sec. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. – (a) If filed with the prosecutor. – If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.

(b) If filed with the Municipal Trial Court. – If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3 (a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.

Legal Procedures 04: Cases not subject to Katarungang Pambarangay

(Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.)

Section 408 of the Local Government Code enumerates the kinds of disputes that are not subject to the Katarungang Pambarangay:

(a) Where one party is the government, or any subdivision or instrumentality thereof;

(b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (P5,000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

(g) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice. The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement.

Instances when the parties may go directly to court

Section 412, paragraph (a) of the Local Government Code provides a pre-condition before a complaint can be filed in court: “No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto.”

Paragraph (b) of the section, however, provides for instances where the parties in dispute can go directly to court:

(1) Where the accused is under detention;

(2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings;

(3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and

(4) Where the action may otherwise be barred by the statute of limitations.

(c) Conciliation among members of indigenous cultural communities. - The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities.

Sub-paragraph (4) speaks of an exception as to where the action may otherwise be barred by the statute of limitations. Please read my relevant PDF “Prescription and civil liability” that discusses extinction of criminal liability, prescription of the crime, prescription of the penalty, and the period or prescription of crimes.

Legal Procedures 03: Katarungang Pambarangay

(Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.)

The “Katarungang Pambarangay” or the barangay justice system is governed by Sections 399 to 422 of the Local Government Code. It has helped lessen the burden of our courts by settling at the barangay level conflicts and disputes between residents of the same barangay.

Issues regarding barangay justice:

1. Lawyers are not allowed to appear in barangay hearings.

2. Even if the parties in dispute are residents of the same barangay, they do not necessarily have to go through the Katarungang Pambarangay. Section 408 of the Local Government Code enumerates the exceptions where the parties can go straight to court or to the fiscal’s office.

3. If there has been an arbitration award or amicable settlement, and one party does not comply, the other party can file with the Municipal or Metropolitan Trial Court a petition for the execution of such settlement or award (Section 417). Although the Lupon has the authority to execute such arbitration award or amicable settlement, some barangay officials refuse to do so. Their reason is politics; they do not want to antagonize people who might vote against them in the next barangay elections.

4. Despite the use of the term “justice,” there really is no such thing as a barangay court. The barangay officials who compose the Lupong Tagapamayap or the Pangkat ng Tagakapagsundo are not judges.

One of my former students told me that a barangay captain in Dasmarinas, Cavite obligates everyone to call him “Justice.” One of my friends who got involved in a dispute in a Taguig City barangay told me that the head of the Lupon threatened him that his complaint will be dismissed for lack of merit. The only instance that the Lupon or Pangkat acts like a court (weighing evidence, hearing testimonies, deciding on the merits, etc.) is when the parties in dispute agree to arbitration.

Differences among conciliation, mediation, and arbitration

The article “Arbitration, Mediation and Conciliation: differences and similarities from an International and Italian business perspective” by Alessandra Sgubini, Mara Prieditis, and Andrea Marighetto provides a clear discussion on the differences among conciliation, mediation and arbitration:

Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case.

Arbitration is an ADR (alternative dispute resolution) method where the disputing parties involved present their disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s) determine the outcome of the case. While it may be less expensive and more accessible than trial, the arbitration process has well-defined disadvantages. Some of disadvantages include the risk losing, formal or semi-formal rules of procedure and evidence, as well as the potential loss of control over the decision after transfer by the parties of decision-making authority to the arbitrator. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes. (Read the complete article)

Katarungang Pambarangay Sections 399 to 422 of the Local Government Code

SEC. 399. Lupong Tagapamayapa. - (a) There is hereby created in each barangay a lupong tagapamayapa, hereinafter referred to as the lupon, composed of the punong barangay as chairman and ten (10) to twenty (20) members. The lupon shall be constituted every three (3) years in the manner provided herein.

(b) Any person actually residing or working in the barangay, not otherwise expressly disqualified by law, and possessing integrity, impartiality, independence of mind, sense of fairness, and reputation for probity, may be appointed a member of the lupon.

(c) A notice to constitute the lupon, which shall include the names of proposed members who have expressed their willingness to serve, shall be prepared by the punong barangay within the first fifteen (15) days from the start of his term of office. Such notice shall be posted in three (3) conspicuous places in the barangay continuously for a period of not less than three (3) weeks;

(d) The punong barangay, taking into consideration any opposition to the proposed appointment or any recommendations for appointments as may have been made within the period of posting, shall within ten (10) days thereafter, appoint as members those whom he determines to be suitable therefor. Appointments shall be in writing, signed by the punong barangay, and attested to by the barangay secretary.

(e) The list of appointed members shall be posted in three (3) conspicuous places in the barangay for the entire duration of their term of office; and

(f) In barangays where majority of the inhabitants are members of indigenous cultural communities, local systems of es through their councils of datus or elders shall be recognized without prejudice to the applicable provisions of this Code.

SEC. 400. Oath and Term of Office. - Upon appointment, each lupon member shall take an oath of office before the punong barangay. He shall hold office until a new lupon is constituted on the third year following his appointment unless sooner terminated by resignation, transfer of residence or place of work, or withdrawal of appointment by the punong barangay with the concurrence of the majority of all the members of the lupon.

SEC. 401. Vacancies. - Should a vacancy occur in the lupon for any cause, the punong barangay shall immediately appoint a qualified person who shall hold office only for the unexpired portion of the term.

SEC. 402. Functions of the Lupon. - The lupon shall: (a) Exercise administrative supervision over the conciliation panels provided herein;

(b) Meet regularly once a month to provide a forum for exchange of ideas among its members and the public on matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes; and

(c) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.

SEC. 403. Secretary of the Lupon. - The barangay secretary shall concurrently serve as the secretary of the lupon. He shall record the results of mediation proceedings before the punong barangay and shall submit a report thereon to the proper city or municipal courts. He shall also receive and keep the records of proceedings submitted to him by the various conciliation panels.

SEC. 404. Pangkat ng Tagapagkasundo. - (a) There shall be constituted for each dispute brought before the lupon a conciliation panel to be known as the pangkat ng tagapagkasundo, hereinafter referred to as the pangkat, consisting of three (3) members who shall be chosen by the parties to the dispute from the list of members of the lupon. Should the parties fail to agree on the pangkat membership, the same shall be determined by lots drawn by the lupon chairman.

(b) The three (3) members constituting the pangkat shall elect from among themselves the chairman and the secretary. The secretary shall prepare the minutes of the pangkat proceedings and submit a copy duly attested to by the chairman to the lupon secretary and to the proper city or municipal court. He shall issue and cause to be served notices to the parties concerned. The lupon secretary shall issue certified true copies of any public record in his custody that is not by law otherwise declared confidential.

SEC. 405. Vacancies in the Pangkat. - Any vacancy in the pangkat shall be chosen by the parties to the dispute from among the other lupon members. Should the parties fail to agree on a common choice, the vacancy shall be filled by lot to be drawn by the lupon chairman.

SEC. 406. Character of Office and Service of Lupon Members. - (a) The lupon members, while in the performance of their official duties or on the occasion thereof, shall be deemed as persons in authority, as defined in the Revised Penal Code.

(b) The lupon or pangkat members shall serve without compensation, except as provided for in Section 393 and without prejudice to incentives as provided for in this Section and in Book IV of this Code. The Department of the Interior and Local Government shall provide for a system of granting economic or other incentives to the lupon or pangkat members who adequately demonstrate the ability to judiciously and expeditiously resolve cases referred to them. While in the performance of their duties, the lupon or pangkat members, whether in public or private employment, shall be deemed to be on official time, and shall not suffer from any diminution in compensation or allowance from said employment by reason thereof.

SEC. 407. Legal Advice on Matters Involving Questions of Law. - The provincial, city legal officer or prosecutor or the municipal legal officer shall render legal advice on matters involving questions of law to the punong barangay or any lupon or pangkat member whenever necessary in the exercise of his functions in the administration of the katarungang pambarangay.

SEC. 408. Subject Matter for Amicable Settlement; Exception Thereto. - The lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except:

(a) Where one party is the government, or any subdivision or instrumentality thereof;

(b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (P5,000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

(g) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice. The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement.

SEC. 409. Venue. - (a) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay.

(b) Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant.

(c) All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated.

(d) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall be binding.

SEC. 410. Procedure for Amicable Settlement. - (a) Who may initiate proceeding - Upon payment of the appropriate filing fee, any individual who has a cause of action against another individual involving any matter within the authority of the lupon may complain, orally or in writing, to the lupon chairman of the barangay.

(b) Mediation by lupon chairman - Upon receipt of the complaint, the lupon chairman shall within the next working day summon the respondent(s), with notice to the complainant(s) for them and their witnesses to appear before him for a mediation of their conflicting interests. If he fails in his mediation effort within fifteen (15) days from the first meeting of the parties before him, he shall forthwith set a date for the constitution of the pangkat in accordance with the provisions of this Chapter.

(c) Suspension of prescriptive period of offenses - While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary: Provided, however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the punong barangay.

(d) Issuance of summons; hearing; grounds for disqualification - The pangkat shall convene not later than three (3) days from its constitution, on the day and hour set by the lupon chairman, to hear both parties and their witnesses, simplify issues, and explore all possibilities for amicable settlement. For this purpose, the pangkat may issue summons for the personal appearance of parties and witnesses before it. In the event that a party moves to disqualify any member of the pangkat by reason of relationship, bias, interest, or any other similar grounds discovered after the constitution of the pangkat, the matter shall be resolved by the affirmative vote of the majority of the pangkat whose decision shall be final. Should disqualification be decided upon, the resulting vacancy shall be filled as herein provided for.

(e) Period to arrive at a settlement - The pangkat shall arrive at a settlement or resolution of the dispute within fifteen (15) days from the day it convenes in accordance with this section. This period shall, at the discretion of the pangkat, be extendible for another period which shall not exceed fifteen (15) days, except in clearly meritorious cases.

SEC. 411. Form of Settlement. - All amicable settlements shall be in writing, in a language or dialect known to the parties, signed by them, and attested to by the lupon chairman or the pangkat chairman, as the case may be. When the parties to the dispute do not use the same language or dialect, the settlement shall be written in the language or dialect known to them.

SEC. 412. Conciliation. - (a) Pre-condition to Filing of Complaint in Court. - No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto.

(b) Where Parties May Go Directly to Court. - The parties may go directly to court in the following instances:

(1) Where the accused is under detention;

(2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings;

(3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and

(4) Where the action may otherwise be barred by the statute of limitations.

(c) Conciliation among members of indigenous cultural communities. - The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities.

SEC. 413. Arbitration. - (a) The parties may, at any stage of the proceedings, agree in writing that they shall abide by the arbitration award of the lupon chairman or the pangkat. Such agreement to arbitrate may be repudiated within five (5) days from the date thereof for the same grounds and in accordance with the procedure hereinafter prescribed. The arbitration award shall be made after the lapse of the period for repudiation and within ten (10) days thereafter.

(b) The arbitration award shall be in writing in a language or dialect known to the parties. When the parties to the dispute do not use the same language or dialect, the award shall be written in the language or dialect known to them.

SEC. 414. Proceedings Open to the Public; Exception. - All proceedings for settlement shall be public and informal: Provided, however, That the lupon chairman or the pangkat chairman, as the case may be, may motu proprio or upon request of a party, exclude the public from the proceedings in the interest of privacy, decency, or public morals. (Note: motu propio means simply of his own will or choice.)

SEC. 415. Appearance of Parties in Person. - In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers.

SEC. 416. Effect of Amicable Settlement and Arbitration Award. - The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court. However, this provision shall not apply to court cases settled by the lupon under the last paragraph of Section 408 of this Code, in which case the compromise settlement agreed upon by the parties before the lupon chairman or the pangkat chairman shall be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court.

SEC. 417. Execution. - The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.

SEC. 418. Repudiation. - Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as hereinabove provided.

SEC. 419. Transmittal of Settlement and Arbitration Award to the Court. - The secretary of the lupon shall transmit the settlement or the arbitration award to the appropriate city or municipal court within five (5) days from the date of the award or from the lapse of the ten-day period repudiating the settlement and shall furnish copies thereof to each of the parties to the settlement and the lupon chairman.

SEC. 420. Power to Administer Oaths. - The punong barangay, as chairman of the lupong tagapamayapa, and the members of the pangkat are hereby authorized to administer oaths in connection with any matter relating to all proceedings in the implementation of the katarungang pambarangay.

SEC. 421. Administration; Rules and Regulations. - The city or municipal mayor, as the case may be, shall see to the efficient and effective implementation and administration of the katarungang pambarangay. The Secretary of Justice shall promulgate the rules and regulations necessary to implement this Chapter.

SEC. 422. Appropriations. - Such amount as may be necessary for the effective implementation of the katarungang pambarangay shall be provided for in the annual budget of the city or municipality concerned.

Legal Procedures 02: Jurisdiction of appellate courts (Court of Appeals and Supreme Court)

(Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.)

As I noted in an earlier post, I will be posting PDFs on various legal procedures in civil and criminal cases for the use of the general public, law students and bar candidates. You can freely download these PDF materials. But these PDF files are for your personal, non-commercial use only; you must not upload them to any website, blog, file-sharing platform, or the cloud.

I designed these materials in 2003 and have not been able to make major revisions. Please check the Supreme Court website for any change in the legal procedures.

The use of graphics or cartoons to illustrate these PDF materials is in keeping with the theory of Jerry Lucas, renowned memory expert and one of the NBA’s 50 greatest players of all time. He said that people tend to remember words, things or ideas better and faster when they are associated with funny, fantastic or outlandish images. The use of these graphics also lessens the intimidation felt by people (non-lawyers and non-law students) when studying legal topics.

The other PDFs to be posted later on are printed one topic per letter-sized paper. You can cut the PDFs along the dashed lines and then compile them into a hard bound or ring bound album. Or you can place related pages side by side on 8.5 by 13 sized paper (like the PDF above) and then compile them into an album.

Legal Procedures 01: Jurisdiction of trial courts (MTC, RTC)

(Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.)

Beginning today, I will be posting PDFs on various legal procedures in civil and criminal cases for the use of the general public, law students, and bar candidates. You can freely download these PDF materials; surf to the complete list of available PDF files. But these PDF files are for your personal, non-commercial use only; you must not upload them to any website, blog, file-sharing platform, or the cloud.

I designed these materials in 2003 and have not been able to make major revisions. Please check the Supreme Court website for any change in the legal procedures.

The use of graphics or cartoons to illustrate these PDF materials is in keeping with the theory of Jerry Lucas, renowned memory expert and one of the NBA’s 50 greatest players of all time. He said that people tend to remember words, things, or ideas better and faster when they are associated with funny, fantastic, or outlandish images. The use of these graphics also lessens the intimidation felt by people (non-lawyers and non-law students) when studying legal topics.

The other PDFs to be posted later on are printed one topic per letter-sized paper. You can cut the PDFs along the dashed lines and then compile them into a hard bound or ring bound album. Or you can place related pages side by side on 8.5 by 13 sized paper (like the PDF above) and then compile them into an album.

Jurisdiction of the trial courts

The term “jurisdiction” simply means that cases must be filed with the proper court. For example, so-called “ejectment” cases, which include forcible entry or unlawful detainer (non-payment of rentals), must always be filed with the MTC. The abbreviation “MTC” stands for Municipal Trial Court (for towns), or Metropolitan Trial Court (for cities). We also have the MTCC which stands for Municipal trial Court in Cities, and the Municipal Circuit Trial Court. An unlawful detainer case, no matter how much back rentals are involved, must always be filed with the MTC. If filed with the RTC (Regional Trial Court), the case will be dismissed for lack of jurisdiction.

If the penalty is six years imprisonment below, MTC has jurisdiction

In terms of criminal cases, MTCs have jurisdiction over cases where the prescribed penalty is below six years imprisonment. (BP 22 or bouncing checks cases are handled by the MTC.) The RTC has jurisdiction over cases where the penalty is above six years.

If principal amount involved is below Php 400,000.00, MTC has jurisdiction

In civil cases, MTCs have jurisdiction over cases where the principal amount involved is below Php 400,000. Above this amount, the RTCs have jurisdiction.

Intra-corporate disputes, which were formerly tried by the Securities and Exchange Commission, are now under the jurisdiction of the Regional Trial Court branches that are specifically designated as commercial courts.

Jurisdiction and venue

The case must not only be filed with the court with proper jurisdiction, it must also be filed with the court of proper venue.

In criminal cases, the Philippines follows the rule on territoriality, that is, the criminal complaint must be filed in the place where the crime took place. For example, if the crime happened in Manila, the complaint or the case cannot be filed in Quezon City. In certain meritorious cases (like the Maguindanao Massacre and the Subic rape case), the Supreme Court can order that the case be tried in a different place.

In civil cases, the complainant has the option of either filing the case in his or her residence, or in the residence of the defendant.

Miss, Ms, or Mrs? Philippine laws on surname for a married woman

Summary: 1. Articles 370 to 372 of the New Civil Code of the Philippines (NCC) are our country’s laws on what surname a married woman may use. 2. A married woman has an option, but not a duty, to use the surname of the husband. When a woman gets married, she changes her status, not her surname (Supreme Court ruling in Yasin vs. Sha'ria District Court, reiterated in “Ma. Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs,” March 2010). 3. To prevent undue confusion and inconsistency in documents like passports and records in the SSS or GSIS, a married woman should consistently use either her maiden surname or any of the surnames under Article 370 NCC. Please read “After getting married, a woman should consistently use either her maiden surname or her married surname.” 4. Reasons why a woman should use her husband’s surname: “The husband who gives his name to his bride in marriage is thus not just keeping his own; he is owning up to what it means to have been given a family and a family name by his own father - he is living out his destiny to be a father by saying yes to it in advance. And the wife does not so much surrender her name as she accepts the gift of his, given and received as a pledge of (among other things) loyal and responsible fatherhood for her children.” (From “What’s Your Name?” published by professors Leon and Amy Kass of The Institute on Religion and Public Life of the University of Chicago)

Articles 370 to 372 of the New Civil Code of the Philippines are our country’s primary laws on what surname a married may use. These articles state:

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s surname, or

(2) Her maiden first name and her husband’s surname, or

(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”
 
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370.

A married woman has an option, but not a duty, to use the surname of the husband

The Supreme Court, citing its previous decision in Yasin vs. Sha'ria District Court, reiterated in “Ma. Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs,” G.R. No. 169202, March 5, 2010 that the use of the word “may” in Article 370 NCC indicates that the use of the husband’s surname by the wife is permissive rather than obligatory. The Court said:

Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent. (Emphasis by boldfacing supplied)

Clarifications, practical issues

1. In the Yasin vs. Sha'ria District Court decision, the Supreme Court ruled that:

(a) When a woman marries a man, she need not apply and/or seek judicial authority to use her husband's name by prefixing the word “Mrs.” before her husband’s full name or by adding her husband's surname to her maiden first name. The law grants her such right (Art. 370, Civil Code).

(b) Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as the use of her former husband's name is optional and not obligatory for her.

(c) When petitioner married her husband, she did not change her name but only her civil status. Neither was she required to secure judicial authority to use the surname of her husband after the marriage as no law requires it.

Read the Plain Language summary of the Supreme Court decision in “Ma. Virginia V. Remo vs. The Honorable Secretary of Foreign Affairs”

2. What if the woman has already used her husband’s surname in her records but for some reason now wants to resume using her maiden surname?

This was precisely the issue in the Remo case. As the Supreme Court decision stated, Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring on 27 October 2000. Being married to Francisco R. Rallonza, the following entries appear in her passport: “Rallonza” as her surname, “Maria Virginia” as her given name, and “Remo” as her middle name. Prior to the expiry of the validity of her passport, Virginia, whose marriage still subsists, applied for the renewal of her passport with the Department of Foreign Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her maiden name and surname in the replacement passport.

The DFA refused to grant Virginia’s petition on the basis of RA 8239 (the law on the issuance of passports). According to the DFA, Section 5(d) of the said law “limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport. These instances are death of husband, divorce decree, annulment or nullity of marriage.”

After the Office of the President and the Court of Appeals denied her appeal, Virginia brought her case up to the Supreme Court. The Court, in denying her petition, stated:

The petitioner would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. However, petitioner consciously chose to use her husband’s surname before, in her previous passport application, and now desires to resume her maiden name. If we allow petitioner’s present request, definitely nothing prevents her in the future from requesting to revert to the use of her husband’s surname. Such unjustified changes in one’s name and identity in a passport, which is considered superior to all other official documents, cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. Thus, for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will. (Emphasis by boldfacing supplied)

While the Supreme Court’s ruling specifically relates to passports, the same reasoning can possibly be applied to other documents like GSIS and SSS records, for example. To prevent undue confusion and inconsistency, a married woman should consistently use either her maiden surname or any of the surnames provided under Article 370 of the NCC.

3. Senator Miriam Defensor Santiago, during the 14th Congress, filed Senate Bill 1302 which seeks to amend Articles 370 and 372 of the NCC and Article 63 of the Family Code. Essentially, Sen. Santiago wants a woman to have the right to continue using her maiden name and surname after marriage or legal separation. In view of the Supreme Court ruling in the Yasin and Remo cases, it seems like that Sen. Santiago’s bill is unnecessary. Her bill, however, seeks to explicitly grant the option to use her maiden name and surname (a) during marriage, and (b) when a decree of legal separation has been granted.

Reasons why a married woman should use her husband’s surname

If you ask me, however, a man should not marry a woman who refuses to use his surname. I know of several cases where the conflict (and the eventual separation) between the spouses began with the woman’s refusal to use her husband’s surname.

Please surf to my Salt and Light blog for the reasons why I believe a married woman should use her husband’s surname. Among other reasons, I cited an article entitled “What’s Your Name?” published by professors Leon and Amy Kass of The Institute on Religion and Public Life of the University of Chicago. Leon and Amy (husband and wife!) explain in a scholarly and closely-reasoned manner why a married woman should use her husband’s surname:

The husband who gives his name to his bride in marriage is thus not just keeping his own; he is owning up to what it means to have been given a family and a family name by his own father - he is living out his destiny to be a father by saying yes to it in advance. And the wife does not so much surrender her name as she accepts the gift of his, given and received as a pledge of (among other things) loyal and responsible fatherhood for her children. A woman who refuses this gift is, whether she knows it or not, tacitly refusing the promised devotion or, worse, expressing her suspicions about her groom’s trustworthiness as a husband and prospective father.

Fathers who will not own up to their paternity, who will not “legitimize” their offspring, and who will not name themselves responsible for child-rearing by giving their children their name are, paradoxically, not real fathers at all, and their wives and especially their children suffer. The former stigmatization of bastardy was, in fact, meant to protect women and children from such irresponsible behavior of self-indulgent men (behavior probably naturally rooted in mammalian male psychosexual tendencies), men who would take their sexual pleasures and walk away from their consequences. The removal of the stigma, prompted by a humane concern not to penalize innocent children by calling them “illegitimate,” has, paradoxically but absolutely predictably, contributed mightily to an increase in such fatherless children.

The advantage a woman and her children gain from the commitment of the man to take responsibility and to stay the course - the commitment implied in his embracing the woman and her prospective children with his family name, now newly understood - is by itself sufficient reason why it is in a woman’s interest as a married-woman-and-mother-to-be to readily take the bridegroom’s name.

Please surf to my Salt and Light blog for the other reasons why I believe a married woman should use her husband’s surname.

The Ma. Venus Raj - Bb.Pilipinas Universe controversy, due process of law, and other legal issues

I don’t really care about this controversy except for the legal issues involved. Besides, as far as I am concerned, the most beautiful woman in the universe is movie actress Angel Locsin! Anyway, this controversy revolves on the alleged falsified entries in Ma. Venus Raj’s birth certificate. According to a press release by the event organizer Bb. Pilipinas Charities Inc (BPCI):

“Raj’s birth certificate showed she was born in Camarines Sur. She and her mother, however, claimed she was born in Doha, Qatar. Her father, Vincent Raj, registered as a Catholic Filipino in her birth certificate was discovered to be an Indian national and is not married to her mother, contrary to what is stated in her birth record.

“The legal document [Raj’s birth certificate] is indeed authentic. The information in the document, however, is fabricated, it being filed three years after Venus’ birth by her mother’s cousin who, at the time, worked in the Civil Registrar’s office. BCPI only discovered this accidentally after the coronation, the admission coming straight from the mouth of Ms. Raj, later on, her mother.”

What legal lessons can we learn from this controversy?

1. Venus reportedly said in “The Buzz” interview that “Sobrang sakit lang na sinasabi nila na disqualified ako because I was born out of wedlock.” I have not really followed all the developments in this controversy and so my explanation may be flawed. If she was really disqualified because she is an illegitimate child, then Venus should really fight tooth and nail for her crown.

But it seems that BPCI did not disqualify Venus because she was born out of wedlock but because she is not a Filipino citizen. (I stand to be corrected on this, okay?) If this is the reason why she was disqualified, then Venus may have a Constitutional ground to fight for her crown. Article IV, Section 1 of the 1987 Constitution defines who are Filipino citizens:

• Those who are citizens of the Philippines at the time of the adoption of this Constitution;
• Those whose fathers or mothers are citizens of the Philippines;
• Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and
• Those who are naturalized in accordance with law.

Even if her father was actually an Indian national, Venus can claim Filipino citizenship because her mother is a Filipino citizen. Her place of birth (whether Doha, Qatar or Camarines Sur) does not affect her citizenship since the Philippines follows the principle of “jus sanguinis” or blood relationship.

2. Even if it is true that the entries in the birth certificate were falsified, Venus did not have any participation in it; she was about three years old at that time. Her mother and mother’s cousin were the ones responsible. She should not be held responsible for something she did not participate in on the basis of the legal principle of “Res inter alios acta, aliis nec nocet nec prodest”. This principle holds that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.

3. The event organizer in its press release said that Venus herself, right after the coronation, admitted that there were false entries in her birth certificate. If this is true, then the legal principle involved is “admission against interest”. Her statement admitting that she knew of the falsifications can be taken as evidence against her.

4. Venus also reportedly said in the Buz interview that “kung may inconsistencies, sana lang from the very beginning sinabi na sana nila [Bb. Pilipinas Charities, Inc.] para hindi na ako umasa. “Hindi malinaw why I was dethroned.”

Venus has a point. First, it does not speak well of BPCI that it did not do its homework of checking all the background information of the contestants. Second, it seems that BPCI just dethroned her without giving her the chance to answer the allegations against her. This involves the issue of due process:

• The Bill of Rights of our 1987 Constitution states in Article 3 Section 1 that “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”
• By “due process of law” we mean “a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” It contemplates notice and opportunity to be heard before judgment is rendered, affecting one's person or property” (Lopez vs. Director of Lands, 47 Phil. 23, 32; Sicat vs. Reyes, L-11023, Dec. 14, 1956)

Simply stated, due process demands that there be notice and hearing. The event organizer should have notified Venus of the charges against her and given her the chance to refute such charges. (Please read my related post “Due process and two-notice rule in termination of employment; five calendar days to answer the charges and hearing required”. If indeed BPCI did not accord Venus the due process she is entitled to, then she can file a civil case for damages under Articles 19 to 21of the New Civil Code of the Philippines. The said articles state:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Legal lessons from GMA 7’s “Pepito Manaloto”

Last night after coming home from church and while having a late supper of siopao, corn on the cob, some beef and C2, I was able to watch some scenes of GMA7’s “Pepito Manaloto.” It is claimed to be the first ever reality sitcom, whatever that means. The scenes last night showed Pepito (played by Michael V) being bawled out by his wife Elsa (Manilyn Reynes) for buying a lotto ticket instead of medicine for their sick child (Joshua Pineda). The next episode will show Pepito winning 700 million pesos from the lotto.

What legal lessons can we learn from “Pepito Manaloto”?

1. Articles 68 to 73 of the Family Code provide for the rights and obligations Between husband and wife. These rights and obligations are:

Article 68 Personal obligations of the spouses
Article 69 Who decides on the family domicile
Article 70 Responsibility for family support
Article 71 Household management by both spouses
Article 72 Relief from the courts in case of disagreement
Article 73 Exercise by a spouse of a profession, industry, etc

2. Article 75 of the Family Code provides that “the future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern”.

The problem is that a lot of Filipinos get married without knowing what these property regimes (systems) are, or that they even have a choice as to what regime they want. The same is true with a lot of foreigners married to Filipinos.

If the future spouses, BEFORE getting married, did not agree upon what kind of property regime they want, then as Article 75 provides, the system of absolute community of property (ACP) will automatically govern them.

3. Article 88 of the Family Code provides that “the absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void.”

4. Article 91 provides that “unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.”

In simpler terms, everything owned by the man and woman at the time they got married will automatically become part of their community property. No exceptions; even those properties acquired by the man or woman by inheritance or donation BEFORE the marriage will become part of the community property from the moment they get married. This is true even if the titles to the properties acquired were not transferred to the names of the spouses after the marriage.

But during the marriage, properties acquired by inheritance or donation by either spouse do not become part of the community property, as provided for by Article 92 (1).

5. Article 92 enumerates what properties are excluded from the community property.

6. Article 93 provides an important principle: “Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom.”

8. Now the part of the Family Code that relates to “Pepito Manaloto”:

Article 95 provides that “whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property.”

From the scenes I watched last night, it seems that Pepito used the money meant for the purchase of medicine to buy a lotto ticket. Article 95 states any winnings from any game of chance (like the lotto) shall become part of the community property. The fictional Pepito or any real Pinoy who might win the lotto cannot claim the winnings all by himself or herself; if that Pinoy is married, the winnings become part of community property.

What if the Pinoy who wins the lotto happens to be separated from the husband or wife? Well, the winnings become part of the community property as long as (1) the marriage has not been annulled or declared null and void; or (2) the spouses have not been legally separated; or (3) there has been no judicial separation of property under Articles 134 to 142 of the Family Code.

What if the Pinoy borrows money from the “5-6” loan shark in order to buy a lotto ticket? And this Pinoy doesn’t win? Can the community property of this Pinoy and the spouse be held liable to pay the loan shark? Well, as you can read from Article 95, “whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community.” In other words, that poor Pinoy must pay the loan shark out of his/her own pocket, cannot require the other spouse to help, or use their savings if any to pay the debt.

Legal lessons from GMA 7’s “First Time” (presumption of legitimacy and simulation of birth)

Last night, while waiting for the 6:30 PM television news programs, I caught several scenes of the “First Time” teledrama that has reportedly captured the hearts of millions of Filipino teenagers. From what little I saw and heard last night, it seems that Cyndi, the main character played by Barbie Forteza, is not the real daughter of her parents played by Ian Veneracion and I don’t know who. It seems that Cyndi’s mother cruelly told her (and as Ian’s character later on verified) that she wasn’t their real child. I’m not sure if this is what the story is all about and how events will unfold. But there are several legal lessons we can learn:

1. If Cyndi’s parents simply got a birth certificate and made it appear that they were her biological parents, then they have committed “simulation of birth”. This is a criminal offense under the Revised Penal Code and RA 8552 Domestic Adoption Act of 1998. Please read my post “Procedures in RA 8552 domestic adoption and RA 8043 inter-country adoption; misinterpretation of RA 9523”. The penalty for simulation of birth under RA 8552 is imprisonment of six years and one day minimum to eight years maximum. There is also a fine not exceeding fifty thousand pesos (P50,000.00).

It is estimated that there have been more than 100,000 cases of simulation of birth in the Philippines. Why do people resort to simulation of birth? For several reasons: either

• they don’t know that this is illegal, all the while they think that they are legally adopting the child; or
• they do not want to go through the legal process of adoption which takes time and money.

2. If “simulation of birth” isn’t what the writers of “First Time” want to develop in the story, then they would have to consider Article 167 of the Family Code. The article states: “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”

Please take time to read my posts “If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?” and “DNA testing to prove legitimacy or illegitimacy of children”.

Let me see, what excuse besides waiting for the 6:30 news programs can I use to watch how the story in “First Time” will develop tonight?

Legal lesson from “Panday Kids”

Last Friday, after several hours of trying and failing to update my Avast 5 engine and virus definitions, and as I sat down to eat dinner, I caught several scenes of “Panday Kids”, GMA 7’s newest teleserye. In one scene, the character played by Isabel Granada said to her daughter, “Kung alam ko lang na tutubuan ng sungay si Charlie, hindi ko na dapat pinayagan ang Papa mo na ampunin siya.” English translation: “If I only knew that Charlie would grow horns, I would not have given my permission for your father to adopt her”. Charlie is the character played by the cute Sabrina Man. (Incidentally, Isabel Granada is still very pretty despite marriage and motherhood.)

I don’t know the complete background of the story. but the scriptwriters of the show seem to have gotten their facts wrong. From the dialogue cited above, it seems that it was only the husband (I don’t know which actor plays this role) who filed the petition for adoption. As you can read from my post on adoption, under RA 8552 Domestic Adoption Act of 1998, joint adoption by a husband and wife is mandatory. The exceptions to joint adoption are:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.

The mandatory requirement is in consonance with the concept of joint parental authority over the child, which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.

Well, it is just a teleserye of course and who really cares about the legalities? As Samuel Taylor Coleridge once said,“Fiction is the willing suspension of disbelief.”

One other scene I saw last Friday was that of Maria Makiling (played by the alluring Iza Calzado) being manhandled by her captors Andreas and Cicero. Hmm, let me see, what legal lessons can we learn from Iza Calzado?

Legal lessons from the Maguindanao massacre (02): bail

The court is now hearing the petition for bail of principal suspect Datu Unsay. Some of you may be wondering as to why the court is conducting hearings on the petition for bail while the main issues of the case are seemingly being set aside.

Filing of a petition for bail is standard for defense lawyers

The defense lawyers filed the petition for bail claiming that the evidence of guilt is weak. For the millions of Filipinos who are following the developments of this case on television and the Internet, this claim seems highly incredible since the evidence of guilt appears to be stronger than the steel on a back hoe. But the filing of a petition for bail is a standard tactic of defense lawyers. Let me explain.

This kind of petition is allowed under the Rules on Criminal Procedure and is in keeping with the Constitutional presumption of innocence. Once such a petition has been filed, the prosecution is required to prove that indeed evidence of guilt is strong. After the hearings, the judge can deny or grant the petition for bail.

What happens if the petition for bail is granted?

If you remember the kidnapping case involving actor/congressman Dennis Roldan, the judge ruled that the evidence of guilt was weak. He was allowed to post bail.

If the petition for bail is granted, the case will then proceed as in the normal procedure:

• The prosecution will present evidence to prove the guilt of the accused. All the testimonies and evidences presented during the hearings of the petition for bail will become part of the hearing on the main issues. The witnesses who testified during the hearings for the petition for bail will not be required to appear and testify again during the hearings on the main issues of the case.  But since the petition for bail has been granted, the prosecution is put on notice that it should review its case and strengthen its evidence.

• After the prosecution has presented its evidence, the accused may then present evidence of his innocence. (Before presenting his evidence, he can with the leave or consent of the court, submit what is called a demurrer to evidence. This is essentially a motion to dismiss the case. If the court grants the demurrer, the case is dismissed and the accused is set free. If the court denies the demurrer, then the accused has to present his evidence.)
  

For the accused and his lawyers therefore, filing a petition for bail is advantageous for at least two reasons:

• If the petition is granted, he can be released from custody and enjoy his liberty while the case is going on; and

• He can know whether in the mind of the judge the evidence of his guilt is strong or not. If the judge denies his petition, he has the time to strengthen his defense. He may even consider a plea bargain.

Let’s discuss some practical matters about bail:

1. “Bail” is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified.

2. The information filed by the fiscal contains at the lower portion a notation on the bail recommended. The bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. The legal term is “to post bail” but “to pay the bail” is the layman’s expression.

No bail necessary for cases under the Rules on Summary Procedure (for example, BP 22)

For cases falling under the Rules on Summary Procedure, the court does not issue a warrant of arrest. Thus the posting of bail is not necessary (even if the information states a recommended bail). For example, persons accused of violation of BP 22 (bouncing checks) do not have to post bail. However, the court may issue a warrant of arrest and require the posting of bail if the accused fails to appear during the hearings.

Release on recognizance

3. “ROR” (Release on recognizance) means that the accused will not post the bail in money or security; instead, the accused will be released to the custody of a government official like barangay officials or previously, in the case of minors, of parents. The person to whom custody is entrusted will guarantee that the accused will be present during the hearings.

Motion to reduce bail

4. Sometimes, the accused and/or his family cannot afford to post the recommended bail. The usual procedure is to file what is called “Motion to reduce bail”. For example, if the recommended bail is sixty thousand pesos, the accused may ask the court to reduce the bail to around twenty five thousand pesos. The court may grant the motion to reduce bail but then it requires that the bail be paid in cash.

Seeking the help of bail bondsman or “pyansador”

5. If you know someone who has been arrested but who cannot afford to pay the bail, you can ask the clerks and security guards at fiscal’s offices and/or the Hall of Justice as to who the bail bondsmen (“pyansador”) are. These are men and women who make a living out of helping persons accused of a crime to avail of the services of surety companies. These companies will pay the recommended bail and the accused has to pay only the premium. The “pyansador” will work on all the papers. (Sometimes, the court staff or the police officers serving the warrant have contacts with the “psyansador”. Once the accused has been arrested, the court staff or the police officers will tell him that they can help work on their release. Needless to say, these practices of court staff and police officers are against Civil Service rules.)

Pictures needed

6. The accused, in working on his bail, has to provide pictures of himself (front, left and right profiles) which will be attached to the documents. There are photographers who hang around fiscal’s offices and Halls of Justice, waiting for clients. The “pyansador” also has contacts with photographers.

If the accused has not yet been arrested and is working on the posting of his bail, he can go to a photo studio and ask that his pictures be taken. If he tells the photo studio that he needs the pictures for posting bail, the studio already knows what kind of pictures to take.

Posting bail to avoid being arrested; how to prevent being harassed

7. To avoid being arrested on the basis of a warrant of arrest, the accused posts the recommended bail through his lawyer or relatives. In the meantime, the accused hides or makes himself scarce. Once the bail has been posted, the accused should always bring with him proof of payment of bail. This way, he can avoid being harassed by the police. For the same reason, if the accused has been arrested and then posts bail, he should carry with him a copy of the release order.

What to do if someone borrows money from you to post the bail

8. If an accused approaches you for help in paying his bail and you want to make sure that the money is returned to you eventually, ask that your name be indicated in the official receipt as the payor of the bail.

Bail is cancelled if accused is absent during the hearings; motion to lift the warrant of arrest and to reinstate bail

9. If the accused who has posted bail fails to appear at a hearing, then the court may order that his bail be forfeited. The court also issues what is called a “bench warrant” for the arrest of the accused. If the accused has a valid reason for his absence (like sickness or he was not informed of the hearing), he may file a “motion to lift the warrant of arrest and to reinstate bail”.

But if the accused does not have any valid reason for being absent during the hearings, he will be forced to post bail again.

Posted below are the complete provisions of “The Revised Rules of Criminal Procedure” on bail.

Rule 114 – Bail

Section 1. Bail defined. – Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.

Sec. 2. Conditions of the bail; requirements. – All kinds of bail are subject to the following conditions:

(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it;

(b) The accused shall appear before the proper court whenever required by the court of these Rules;

(c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for execution of the final judgment.

The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.

Sec. 3. No release or transfer except on court order or bail. – No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

Sec. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment.

Sec. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.

Sec. 6. Capital offense defined. – A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution.

Sec. 8. Burden of proof in bail application. – At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.

Sec. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:

(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required.

Sec. 10. Corporate surety. – Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors.

Sec. 11. Property bond, how posted. – A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned.

Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention.

Sec. 12. Qualifications of sureties in property bond. – The qualifications of sureties in a property bond shall be as follows:

(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the amount of undertaking;
(c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded.

In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution.

Sec. 13. Justification of sureties. – Every surety shall justify by affidavit taken before the judge that he possesses the qualification prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified.

Sec. 14. Deposit of cash as bail. – The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit.

Sec. 15. Recognizance. – Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person.

Sec. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be required when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.

Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein.

(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal.

Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.

Sec. 18. Notice of application to prosecutor. – In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation.

Sec. 19. Release on bail. – The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule.

When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed.

Sec. 20. Increase or reduction of bail. – After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody.

Sec. 21. Forfeiture of bail. – When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must:

(a) produce the body of their principal or give the reason for his non-production; and
(b) explain why the accused did not appear before the court when first required to do so.

Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted.

Sec. 22. Cancellation of bail. – Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on the bail.

Sec. 23. Arrest of accused out on bail. – For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion.

An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.

Sec. 24. No bail after final judgment; exception. – No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.

Sec. 25. Court supervision of detainees. – The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees.

In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein.

A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information.

Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.