Legal Procedures 08: Rights of the accused

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

[2] If the accused cannot afford to post bail, he must invoke his Constitutional right to a speedy trial. The court is then obligated to hold hearings at the most expeditious schedule. The accused can ask for the dismissal of the case on the merits if his or her right to a speedy trial is violated. An example of violation of the right to a speedy trial: the private complainant has been absent during the hearings for three or more times despite being notified.

Notice of the hearings can be given in open court or by registered mail. If the calendar of cases posted outside the courtroom contains the annotation “NR” or “No ret,” this means “No return” or that the return card of the registered mail has not been received by the court staff. If any party is absent because he or she has not been notified of the hearing, then it is reset to another date.

[3] The term “dismissal on the merits” means that the case cannot be re-filed anymore. It is different from a “provisional dismissal” where the case records are sent to the archives and hearings are suspended. For cases under the jurisdiction of the Regional Trial Court, the case can be dismissed on the merits if the complainant does not ask for the resumption of the hearings within two years from the time the case was provisionally dismissed. (In civil cases, the term is “dismissal with prejudice.”)

Most judges and fiscals (public prosecutors) are reluctant to grant or agree with the motion of the accused for a dismissal based on the violation of the Constitutional right to a speedy trial. They would rather prefer a provisional dismissal. For fiscals, a dismissal based on the Constitutional right to a speedy trial is a stain on the performance of their duties.

Before judges grant a provisional dismissal, they instruct the defense counsel (technically called as “counsel de parte”) to explain to the accused that the case can be revived within a certain time period.

If the accused has posted bail (or if no bail has been required as in cases falling under the Rules on Summary Procedure) and the private complainant has been absent for several times, the case can be dismissed on the ground of “failure to prosecute”.

[4] Under Republic Act 7438 “Rights of Person Under Custodial Investigation”, custodial investigation includes the practice of police officers of “inviting” persons for questioning in connection with an offense. It provides penalties for any public officer or employee who violates the rights of persons arrested, detained or under custodial investigation.

[5] Please read Republic Act 8493 “Speedy Trial Act of 1998”. Selected provisions are posted below.

Rights of the accused (Rule 115, Revised Rules of Criminal Procedure)
Section 1. Rights of accused at trial. – In all criminal prosecutions, the accused shall be entitled to the following rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law.

Selected provisions of the Speedy Trial Act of 1998

Time limit for trial - In criminal cases involving per-sons charged of a crime (except for those falling under the Rules on Summary procedure) the judge shall after consultation with the public prosecutor and counsel for the accused, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as authorized by the Chief Justice of the Supreme Court.

Time limit between filing of information and arraignment, and between arraignment and the trial - the arraignment shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the judge or court in which the charge is pending, whichever date last occurs.

Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence thirty (30) days from arraignment as fixed by the court.

If the accused pleads not guilty to the crime charged, he shall state whether he inter-poses a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence.

Time limit following an order for new trial - the trial shall commence within thirty days from the date the order for new trial becomes final, except that the court retrying the case may extend such period but in any case shall not exceed one hundred eighty (180) days from the date the order for new trial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within thirty (30) days impractical.

Legal Procedures 07: Search and seizure

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

[2] Checkpoints are valid for as long as they are limited to a visual search. The vehicle must not be subjected to search; the occupants must not be subjected to a bodily search. (Valmonte vs. De Villa)

[3] A buybust is an entrapment operation made by police authorities against drug pushers.

[4] A motion to quash a search warrant and/or to suppress any evidence obtained thereof may be filed in and acted upon only by the court where the case has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. (Section 14, Rule 126 of the Revised Rules of Criminal Procedure)

[5] There are several settled exceptions to the rule on a warrantless search:

• a search incidental to a lawful arrest;
• a search on a moving vehicle;
• seizure of evidence in plain view;
• when there is consent given by the person searched.

As an incident of a lawful arrest, a warrantless search is subject to the following: (a) the arrest must be lawful; (b) the search and seizure must be contemporaneous with the arrest; and (c) it must be within a permissible area of search.

A search done when there is consent is subject to these requisites: (a) there is a right; (b) there is knowledge of the existence of such right; and (c) there must be intention to waive the right.

Search and Seizure (Rule 126, Revised Rules of Criminal Procedure)

Section 1. Search warrant defined. – A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

Sec. 2. Court where application for search warrant shall be filed. – An application for search warrant shall be filed with the following:

(a) Any court within whose territorial jurisdiction a crime was committed.

(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

Sec. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

Sec. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Sec. 5. Examination of complainant; record. – The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.

Sec. 6. Issuance and form of search warrant. – If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.

Sec. 7. Right to break door or window to effect search. – The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein.

Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

Sec. 9. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.

Sec. 10. Validity of search warrant. – A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.

Sec. 11. Receipt for the property seized. – The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. – (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

(c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

Sec. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. – A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

Legal Procedures 06: Arrest and bail

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

[2] Please read the related post “Legal lessons from the Maguindanao massacre (02): bail” where I discussed the practical aspects of bail like motion to reduce bail, pictures, seeking the help of bail bondsmen or “pyansador,” what to do if someone borrows money from you to pay for bail, etc.

[3] The authorities —police, NBI, etc.— have ten days from issuance of the warrant within which to arrest the accused. If no arrest is made within that period of time, the reason must be stated in a report ("return") to the judge.The court may then issue an alias warrant that is valid until recalled.

Update as of June 30, 2014 A.M. No. 12-11-2-SC (March 18, 2014) “Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and Speedy Trial” The order fixing the amount of bail cannot be appealed. (Sec. 4) Bail in offenses punishable by death, reclusion perpetua, or life imprisonment (Sec. 6): Hearing is summary in nature; the prosecution must show that the evidence of guilt is strong. The accused may submit affidavits of witnesses. The prosecution may (1) examine its witnesses on direct or (2) adopt the affidavits they executed during the preliminary investigation as their direct testimonies. The court must examine the witnesses on their direct testimonies or affidavits to ascertain if the evidence of guilt of the accused is strong. The court’s questions need not follow any particular order and may shift from one witness to another. The court must then allow counsels from both sides to examine the witnesses as well. The court must hear afterwards the oral arguments of the parties. Within 48 hours after the hearing, the court must issue an order containing a brief summary of the evidence presented before it, followed by its conclusion of whether or not the evidence of guilt is strong. This conclusion must not be regarded as a pre-judgment on the merits of the case, which will be determined only after a full-blown trial.

[4] Officers of the law arresting someone by virtue of a warrant need not have the warrant with them when making the arrest.

[5] If the private complainant executes an affidavit of desistance before the arraignment, the public prosecutor files a motion to withdraw the information. The court recalls the warrant or orders the release of the accused.

[6] A “buybust” operation is an entrapment procedure conducted by the police against drug pushers, who can be arrested on the spot and then searched, even without a warrant.

[7] If the recommended bail is too high, the accused may file a “Motion To Reduce Bail.” If granted, the court requires, however, the posting of cash bail. If the accused does not have a lawyer, he can file the motion by himself. He can ask around the Hall of Justice for anyone who knows the format of the motion and who can help him file it.

[8] Please read the history of the Miranda warning or the Miranda rights. The legality of an arrest can be questioned if the police did not observe the Miranda rights of an accused. These right are enshrined in our 1987 Constitution.

Arrest (Rule 113, The Revised Rules of Criminal Procedure)

Section 1. Definition of arrest. – Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

Sec. 2. Arrest; how made. – An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.

Sec. 3. Duty of arresting officer. – It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.

Sec. 4. Execution of warrant. – The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reason therefore.

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

Sec. 6. Time of making arrest. – An arrest may be made on any day and at any time of the day or night.

Sec. 7. Method of arrest by officer by virtue of warrant. – When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

Sec. 8. Method of arrest by officer without warrant. – When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.

Sec. 9. Method of arrest by private person. – When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the case of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest.

Sec. 10. Officer may summon assistance. – An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself.

Sec. 11. Right of officer to break into building or enclosure. – An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose.

Sec. 12. Right to break out from building or enclosure. – Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself.

Sec. 13. Arrest after escape or rescue. – If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines.

Sec. 14. Right of attorney or relative to visit person arrested. – Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.

Bail (Rule 114, The Revised Rules of Criminal Procedure)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 ged 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. (Note: The death penalty has already been abolished.)

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.

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.